J-A22020-17
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    G.N.I.                                        IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    C.S.

                             Appellee                 No. 581 EDA 2017


                Appeal from the Order Entered January 23, 2017
                 In the Court of Common Pleas of Bucks County
                Domestic Relations at No(s): A06-07-62331-C-26


                                          *****
    G.N.I.                                        IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    C.S.

                             Appellant                No. 977 EDA 2017


                Appeal from the Order Entered February 22, 2017
                 In the Court of Common Pleas of Bucks County
                Domestic Relations at No(s): A06-07-62331-C-26


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 20, 2017

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        C.S. (“Mother”) and G.N.I. (“Father”), both pro se, cross appeal from

the February 22, 2017 order,1 entered in the Court of Common Pleas of Bucks

County, denying Father’s petition to modify custody and his petition for

contempt, ordering the parties to share legal custody of their minor son and

minor daughter (“Children”), ages 12 and 14, granting Mother primary

physical custody, and granting Father partial physical custody.2         After our

review, we affirm.

        This litigation has persisted for over ten years. The parties separated

on July 31, 2007; the court entered an initial interim custody order, by

agreement, on October 18, 2007. Since then, the parties have inundated the

court with over 200 custody docket entries,3 unwilling to see beyond
____________________________________________


1 We note some confusion as to the date the order was entered in this case.
The trial court, in its opinion filed April 4, 2017, erroneously finds that Mother’s
appeal was untimely filed on March 20, 2017. Trial Court Opinion, 4/4/17, at
1. The purported order of January 23, 2017, however, was not entered on
the trial court docket until February 22, 2017. See Pa.R.A.P. 301(a) (“[N]o
order of a court shall be appealable until it has been entered upon the
appropriate docket in the lower court.”); see also Pa.R.C.P. 236. Mother’s
March 20, 2107 appeal, therefore, was timely filed from the February 22, 2017
order. Father’s appeal, filed on February 8, 2017, which was taken prior to
entry of the order on the docket and Rule 236 notice, was premature. This,
however, is not fatal to his appeal. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”). Thus, Father’s notice of appeal is treated as filed on February
22, 2017.

2We have consolidated Mother’s and Father’s appeals pursuant to Pa.R.A.P.
513.

3   See Trial Court’s Statement on the Record, 1/10/17, at 10.



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themselves to grasp the effect this bitterness has on their children. In his July

20, 2015 opinion, following two days of testimony on one of Father’s petitions

for contempt, the Honorable Alan M. Rubenstein stated: “[The parties] are so

full of venom for each other that they forget there’s two children here who

can’t speak for themselves.”           See Trial Court Opinion, 7/20/15, at 4.4

Unfortunately for Children, the parties continue to ignore the advice and

admonitions of the Parent Coordinator, whom they hired, and the three trial

court judges who have agonized through this litigation. As Judge Rubenstein

stated, the parties are unable to stop focusing on their dislike for one another

and instead focus on their children, see Trial Court’s Statement on the Record,

1/10/17, at 5-6, and as he predicted, Mother and Father have filed appeals

from the February 22, 2017 order.

       The order provides, in relevant part:

       Father is to have partial physical custody Thursday after school
       until Monday morning and Thursday at 4:00 p.m. until Friday
       morning on alternative weeks. During the summer, the custody
       schedule will be modified to week-to-week. Mother shall be
       required to transport the children for all pick-ups and drop-offs,
       and to deliver the children to Father for his periods of partial
       custody.

Order, 2/22/17.

____________________________________________


4 The level of conflict has not abated. In his Statement on the Record, Judge
Rubenstein characterized this “pitched battle” as a “war without end.” Id. at
68. It is difficult for this Court to fathom how parents can continue behavior
that is so destructive and contrary to their children’s best interests, bordering
on emotional abuse. They are so blinded by hostility toward each other that
they are willing to sacrifice their children’s well-being.

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       Mother raises the following claims (verbatim):

       1. Did the trial court commit an abuse of discretion or error of law
          when its decision did not match the evidence, most recent
          custody     evaluation   done,    Father’s    recent    selected
          abandonment of Children, and failed to consider the factors of
          custody based on facts including the need to protect the best
          interests of the Children and the Children’s well-reasoned
          preference to spend more time with Mother than they currently
          had?

       2. Did the trial court commit an abuse of discretion or error of law
          based on the judge’s bias toward Mother and create an unfair
          courtroom, including confusing testimony in the verdict and
          citing things incorrectly versus what the record and evidence
          showed, as well as whereby [sic] the factors of custody were
          not fairly applied based on evidence due to the same bias?

              a. Did the trial court commit an abuse of discretion or
                 error of law by ignoring Mother’s petitions and
                 concerns shared that Father and Stepmother
                 committed perjury on several instances with no
                 recourse including violating rules of truth in courtroom
                 [sic] and while under oath, and in documents
                 submitted vs. the fabricated one Mother pointed out
                 to the court, Father’s petitions submitted with blatant
                 lies whereby Mother’s reply petitions showed source
                 documents from third parties to show the facts;
                 additionally Mother’s concern with Father and
                 Stepmother knowingly gathering a copy of their
                 sealed custody evaluation all in an attempt to divert
                 this case from the truth?

Mother’s Appellant’s Brief, at 4-5.

       Father raises the following issues:5


____________________________________________


5 Father’s issues in his Statement of Questions Involved in his appellate brief
differ slightly from those raised in his Pa.R.A.P. 1925(b) Statement of Errors
Complained of on Appeal. See Father’s Appellant Brief, at 4-5; Rule 1925(b)
Statement, 2/8/17. We have taken his issues on appeal from his Rule 1925(b)
Statement, See Pa.R.A.P. 1925(b)(4)(vii).

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     1. Should this Court vacate the lower court’s final custody order
        because it was based on unreasonable conclusions relative to
        [Children’s] need for stability, and therefore does not further
        the best interests of [Children] because:

           a. The court’s most important conclusion relative to
              Children of sound judgment to provide a well-reasoned
              preference was not supported by the evidence and was
              thus not a sustainable finding (children contemplating
              suicide and expelled from two daycares with continual
              behavioral problems);

           b. The court’s order was unreasonable because it failed to
              address the fact that [C]hildren are deprived of Father’s
              care for extended periods during the school week due to
              Mother’s created impediment with respect to proximity
              between homes, and which is particularly problematic in
              light of the court’s simultaneous conclusion that Mother
              discourages [C]hildren’s relationship with their Father
              and instigates turmoil?

     2. The trial court abused its discretion and/or committed an error
        of law by violating the Fourteenth Amendment (Amendment
        XIV) of the Constitution of the United States in denying a pro-
        se party from obtaining a copy of the custody evaluation report
        in upholding a discriminatory policy that only allows lawyers to
        obtain copies.

     3. The trial court abused its discretion and/or committed an error
        of law in failing to recognize Father’s Petition for Special Relief
        filed on August 10, 2016, which was added to the docket and
        scheduled for trial on September 23, 2016 at the same time as
        the custody modification, and which evidence contained within
        contradicts the findings in the lower court’s opinion.

     4. The trial court abused its discretion and/or committed an error
        of law by not adhering to the Rules of Civil Procedure in not
        promptly disposing of the custody matter.

Father’s Rule 1925(b) Statement of Errors Complained of on Appeal, 2/8/17.

     In reviewing a custody order, our scope and standard of review are well

established.



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      [O]ur scope is of the broadest type and our standard is abuse of
      discretion. We must accept findings of the trial court that are
      supported by competent evidence of record, as our role does not
      include making independent factual determinations. In addition,
      with regard to issues of credibility and weight of the evidence, we
      must defer to the presiding trial judge who viewed and assessed
      the witnesses first-hand. However, we are not bound by the trial
      court’s deductions or inferences from its factual findings.
      Ultimately, the test is whether the trial court’s conclusions are
      unreasonable as shown by the evidence of record. We may reject
      the conclusions of the trial court only if they involve an error of
      law, or are unreasonable in light of the sustainable findings of the
      trial court.

Collins v. Collins, 897 A.2d 466, 471 (Pa. Super. 2006) (internal citations

and quotation marks omitted).

      The paramount concern in any child custody case is the best interests

of the child. See 23 Pa.C.S.A. §§ 5328, 5338. “This standard requires a case-

by-case assessment of all the factors that may legitimately affect the physical,

intellectual, moral and spiritual well-being of the child.” J.R.M. v. J.E.A., 33

A.3d 647, 650 (Pa. Super. 2011) (citation omitted). “A party seeking

modification of custody arrangements has the burden to show that

modification is in the child’s best interest.” Ketterer v. Seifert, 902 A.2d

533, 539 (Pa. Super. 2006). Additionally, this Court has observed that

      the discretion that a trial court employs in custody matters should
      be accorded the utmost respect, given the special nature of the
      proceeding and the lasting impact the result will have on the lives
      of the parties concerned. Indeed, the knowledge gained by a trial
      court in observing witnesses in a custody proceeding cannot
      adequately be imparted to an appellate court by a printed record.

Id. at 540.



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     The factors to be considered by the court when awarding custody are

set forth in 23 Pa.C.S.A. § 5328(a). Section 5328(a) provides:

     § 5328. Factors to consider when awarding custody.

      (a)   Factors. – In ordering any form of custody, the court shall
            determine the best interest of the child by considering all
            relevant factors, giving weighted consideration to those
            factors which affect the safety of the child, including the
            following:

            (1)   Which party is more likely to encourage and permit
                  frequent and continuing contact between the child and
                  another party.

            (2)   The present and past abuse committed by a party or
                  member of the party’s household, whether there is a
                  continued risk of harm to the child or an abused party
                  and which party can better provide adequate physical
                  safeguards and supervision of the child.

            (2.1) Consideration of child abuse and involvement with
                  child protective services.

            (3)   The parental duties performed by each party on behalf
                  of the child.

            (4)   The need for stability and continuity in the child’s
                  education, family life and community life.

            (5)   The availability of extended family.

            (6)   The child’s sibling relationships.

            (7)   The well-reasoned preference of the child, based on
                  the child’s maturity and judgment.

            (8)   The attempts of a parent to turn the child against the
                  other parent, except in cases of domestic violence
                  where reasonable safety measures are necessary to
                  protect the child from harm.

            (9)   Which party is more likely to maintain a loving, stable,
                  consistent and nurturing relationship with the child
                  adequate for the child's emotional needs.


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            (10) Which party is more likely to attend to the daily
                 physical, emotional, developmental, educational and
                 special needs of the child.

            (11) The proximity of the residences of the parties.

            (12) Each party’s availability to care for the child or ability
                 to make appropriate child-care arrangements.

            (13) The level of conflict between the parties and the
                 willingness and ability of the parties to cooperate with
                 one another. A party’s effort to protect a child from
                 abuse by another party is not evidence of
                 unwillingness or inability to cooperate with that party.

            (14) The history of drug or alcohol abuse of a party or
                 member of a party’s household.

            (15) The mental and physical condition of a party or
                 member of a party’s household.

            (16) Any other relevant factor.

      23 Pa.C.S.A. § 5328(a).

      Mother argues that although the court properly determined that she

should remain the primary caretaker, the court abused its discretion in

ignoring evidence that would support “more time with Mother[.]”               See

Mother’s Brief, at 19-20. Mother suggests “adjusting [her] primary custody

from the 5 overnights Father has every 2 weeks, and the alternating weeks in

the summer.” Id. at 20. We find no support for this argument, and we find

no abuse of discretion in the court’s conclusion that there were no compelling

reasons to alter the custody order.

      We have reviewed the custody hearings from April 16, 2015 to

December 27, 2016, the January 10, 2017 Statement on the Record, wherein

the court reviewed all of the evidence received, and, finally, the court’s


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painstaking analysis of the statutory custody factors in both its January 10,

2017 Statement on the Record and its May 31, 2017 Rule 1925(a) opinion.

Contrary to Mother’s claim, the court considered all the evidence, including

minor daughter’s preference and her maturity in expressing that preference

and Father’s “abandonment.” The court stated:

      [Minor daughter] tells me she likes school. She does rather well.
      She’s involved in a jazz dance club. She’s a cross-country runner.
      She has great grades in math and science. All these things bode
      well for her remaining with [Mother]. She is a straight-A, high
      honor roll student. And after we go through the background of
      this child, she states, without any prompting, she looked right at
      me – and I wrote it down – she said, “I’ve been living through this
      for nine-and-a-half years.” . . . Her preference is strong to be
      with her mother for all the reasons she mentioned. All the reasons
      we accept. She’s an incredibly bright, articulate child, not just
      academically, but poised, and her preference is well-reasoned and
      grounded in reality.

Trial Court’s Statement on the Record, 1/10/17, at 54-55, 58. The court also

considered what Mother described as “Father’s abandonment,” when he only

saw Children once in a two-month period in 2014 and his failure to tell Mother

the address of his new home. The trial court considered the events leading

up to this. Mother, however, would have the trial court, and this Court, ignore

the evidence presented by Father as well as the tortured history of this case.

      Mother was continually late for her drop-offs at Father’s home, and,

ironically, it was Mother who would call the State Police when she was late for

drop-off at Father’s home, and police would escort Children from her car to

Father. Mother contacted Children and Youth Services several times, alleging

child abuse, once when Father took minor son to the emergency room for an

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allergic reaction to ibuprofen. The court characterized Mother’s actions as a

“studied attempt to make Father’s life miserable.” Id. at 12.

     I also heard that Father – and rightfully so- was very upset, as he
     should be, that Children & Youth had contacted him on numerous
     occasions. . . . Children & Youth are a last resort. They deal with
     horrific acts; sexual abuse, physical abuse, neglect. . . . Father
     legitimately mentions that [minor son] had an allergic reaction to
     generic ibuprofen . . . [s]o he took the child to the hospital
     emergency room. As a parent one would be concerned if a child
     had a reaction to any medicine, prescribed or over-the-counter.
     Mother called the police and alleged there was abuse by Father.

                                    ****

      Later, Father moves, but he doesn’t tell Mother he moves. . . .
     What’s Father’s reason? He didn’t want the police to come to his
     new home. April of 2014; Father didn’t see [Children]. In May,
     he didn’t see them until Memorial Day. You get into June. He
     only saw them on Father’s Day. Father was spooked. I don’t
     blame him. He said he didn’t want Children & Youth or the police
     involved. . . . Mother admitted that four years ago she called
     Children & Youth. She alleged abuse by Father, which never
     happened. Father makes a mistake. I understand his anger.

Id. at 22-24.

     In reaching its custody decision, the court considered the fact that

Mother exposed Children to the police and Children and Youth, used bad

judgment, and instigated turmoil. Despite this, the court found that Mother

“is, apparently, capable of taking care of the children.” Id. at 46. The court

also considered the fact that Father made his share of mistakes and

contributed, wholeheartedly, to the continual discord between the parties. Id.

at 46-47. Mother’s argument goes on to recite the evidence presented to the




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court that she believes supports an order that is in Children’s best interests,

in other words, provides less time with Father.

      Father responds that Children “are not doing well under [Mother’s]

primary care,” as illustrated by their behavioral and emotional issues, and,

therefore, the court’s order maintaining the current custody schedule is not

supported by the record. Father’s Brief, at 21-22. There was considerable

testimony regarding minor son’s behavioral issues, minor daughter’s recent

“contemplation of suicide,” and mental health counseling for Children. We are

not convinced, however, that altering the custody order would alleviate

Children’s emotional issues; we agree with the trial court’s assessment that

Children’s behavioral and emotional issues are more a consequence of their

parents’ dysfunction than the custody schedule.

      Next, Mother argues that the court exhibited bias against her and that

as a result of that bias, it did not fairly apply the statutory factors. These

claims are meritless. Notably, the court was equally critical of the parties’

behavior.   Further, as we stated above, the court properly applied the

statutory custody factors, both from the bench and in its opinion.     Mother

essentially seeks a reweighing of the evidence in order to a reach an even

more favorable order. Father, in his cross appeal, seeks the same thing. Since

the parties are unwilling to work out a custody schedule on their own, they

are subject to the court’s determination of what is in their children’s best

interests. We must defer to the trial court on issues of credibility and weight

of the evidence, and our review of the certified record confirms the court’s

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conclusions drawn from its consideration of the statutory best-interest factors.

We see no reason to disturb the court’s custody decision based upon either

party’s assessment of the evidence. Ketterer, supra. We find no error or

abuse of discretion. Collins, supra; J.R.M., supra.

      With respect to Father’s cross-appeal, we rely upon Judge Rubenstein’s

opinion to dispose of his claims. Judge Rubenstein had the opportunity to

observe the proceedings, over several years, and to make determinations

concerning the credibility and demeanor of the witnesses, including the minor

daughter, who Mother called as a witness. We defer to his findings. Further,

Judge Rubenstein performed a careful and detailed analysis of the Children’s

best interests, and the evidence presented at trial supports the trial court's

determination that their best interests are served by maintaining the current

custody schedule. See Trial Court Opinion, 3/22/17, at 15-21. Accordingly,

we affirm the February 22, 2017 order based upon Judge Rubenstein’s

opinion, and we direct the parties to attach a copy of that opinion in the event

of further proceedings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017

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