J-S01012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    D.F.F., JR.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    B.E.F.                                     :
                                               :
                          Appellant            :   No. 1436 MDA 2018

                       Appeal from the Order Entered July 27, 2018
                       In the Court of Common Pleas of York County
                        Civil Division at No(s): 2017-FC-000596-03


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                            FILED MARCH 15, 2019

        B.E.F. (“Mother”) appeals from the order granting D.F.F., Jr. (“Father”)

sole legal custody, and primary physical custody, of the parties’ minor son,

B.F. (“Child”) (born December 2009); finding Mother in contempt of a prior

order of court; awarding Father $1,000.00 in counsel fees; and denying

Mother’s petition for contempt.1 We affirm.

        The trial court set forth the following factual and procedural history of

this case:

        The parties were married on June [] 20[0]1.[2] Father had a
        daughter, [Sa.F.], from a previous relationship. During their
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1Child’s sister, S.F., turned 18 prior to the conclusion of the custody trial.
Accordingly, the order only addresses the custody of Child.

2 The trial court acknowledged that its opinion contained a typographical error,
listing the year of marriage as 2011.
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     marriage, the parties had two children, S.F. and [Child]. Father
     worked as a mechanic. Mother originally had her own business
     that she ran as a psychologist, where [Sa.F.] worked during high
     school. According to the testimony, Mother sold her business to
     become a stay-at-home [m]other and to homeschool S.F. and
     [Child] when S.F. was in the fourth grade. Father was the primary
     financial provider for the family, but he did find time to coach
     S.F.’s soccer team. Mother did eventually start her own tea
     business in 2014 from the home.

     In April of 2017, the parties separated. It is not disputed that
     Father had committed adultery during their relationship. On April
     5, 2017, Mother filed a Petition for a Protection from Abuse (PFA)
     Order against Father and a Temporary PFA Order was granted on
     the same date. On April 8, 2017, Father sent a message of “Hey.”
     The next day, Father sent Mother a text stating the first message
     was sent in error by his new phone. On April 12, 2017, Father
     sent Mother another message saying, “Here. A box out here if
     you want.” Father was indicating that he had arrived to pick up
     the children for a visit and had left a box on the sidewalk of
     Mother’s items. All of this happened prior to the time scheduled
     for a hearing for the final PFA had even occurred. Mother filed a
     Petition for Indirect Criminal Contempt (ICC) for Father’s text
     communication []. Father was arrested on April 13, 2017 for the
     ICC.

     On April 20, 2017, the parties agreed to the entry of a Final PFA
     for a no contact order for a twelve (12) month period without
     admissions. The PFA did indicate that Father could contact S.F.
     as long as he did not discuss the PFA proceedings with her, but
     the Final PFA was silent in regards to [Child]. On May 25, 2017,
     Father pled guilty to the ICC and was sentenced with a fine and
     six months of probation. This conviction also extended the PFA
     for an additional year, with an expiration to occur on April 17,
     2019.

     Father filed a Petition for Custody because he had not been
     allowed to see or talk with [Child]. At the conciliation conference,
     Mother admitted that she did not think that Father was a threat
     to the children, but she did request a threat of harm assessment
     be conducted. At this time, the parties shared legal custody.
     Mother was granted primary physical custody, and Father was
     granted partial physical custody on alternate weekends with
     Monday overnights on the alternate weeks. It was also requested
     that there would be an amendment to the PFA to allow contact

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       between the parties strictly as it relates to custody, which was
       granted on December 22, 2017.

       Father filed a Motion for Contempt of the Custody Order on
       December 13, 2017. In his petition, he alleges two counts of
       contempt, specifically that Mother failed to permit Father to
       exercise shared legal custody when she unilaterally made medical
       decisions for [Child] and refused to take the child to the Urgent
       Care when the child was sick and throwing up. Father also alleges
       that Mother withheld physical custody from Father on his weekend
       from Friday, November 24, 2017[,] to Sunday, November 26,
       2017, with Mother alleging that the child was too sick to visit and
       even too sick to speak with Father on the phone. Mother still
       refused to take the child to the Urgent Care. Mother counter-filed
       with a Petition for Contempt of a Custody Order on January 17,
       2018. In her Petition, Mother also alleges two counts of contempt
       against Father. In the first count, Father was ordered to complete
       a Threat of Harm evaluation in the Interim Order and failed to
       timely complete the evaluation or provide Mother with a copy of
       the evaluation. Mother also alleges that Father arrived late to
       exchanges on two occasions, once on October 23, 2017 and once
       on November 12, 2017.          Both petitions for contempt were
       reserved for time of trial.

       Father did undergo a threat of harm evaluation[3] by Chad Shaeffer
       at Spirit Trust Associates. It is noted by the [c]ourt that delays in


____________________________________________


3 A threat of harm evaluation is governed by 23 Pa.C.S.A. § 5329, which
provides, in pertinent part:

       (c) Initial evaluation.--At the initial in-person contact with the
       court, the judge, conference officer or other appointed individual
       shall perform an initial evaluation to determine whether the party
       or household member who committed an offense under subsection
       (a) poses a threat to the child and whether counseling is
       necessary. The initial evaluation shall not be conducted by a
       mental health professional. After the initial evaluation, the court
       may order further evaluation or counseling by a mental health
       professional if the court determines it is necessary.

                                               ***



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       the evaluation were related to delay in payments. The evaluator
       found that Father posed a risk of harm to future paramours and a
       risk of harm to [Child] if custody would occur and [Child] were to
       have contact with Father’s paramour.         Father disputes the
       evaluation. This determination was based in large part on the
       facts provided by Mother that w[ere] undisclosed to Father or the
       [c]ourt. The information was provided to the evaluator at the
       eleventh hour without Father being given an opportunity to
       respond. After the report was issued, Father wrote a letter to the
       evaluator in response, which he provided as a separate exhibit.

       A Joint Stipulation was filed on March 27, 2018. Prior to the start
       of trial, both parties became aware that [Child] was suffering from
       gastrointestinal issues. The first two days of the [c]ustody [t]rial
       were held on March 29, 2018 and April 2, 2018. At that time,
       Mother alleged that [Child]’s gastrointestinal issues stemmed
       from Father giving the child a McDonald’s Happy Meal and sugary
       candy over Easter weekend. It was further indicated to the [c]ourt
       by Mother that [Child] had not been to the doctor since he was
       two weeks old. The [c]ourt was concerned with [Child]’s constant
       bouts of illness and vomiting, so this [c]ourt ordered that Father
       arrange for [Child] to have a medical appointment. The child had
       also had vision issues that Father had noticed and addressed by
       getting appropriate care and glasses for the child. Mother had not
       obtained glasses and was resistant to doing so. This [c]ourt then
       made a report to York County Office of Children, Youth and
       Families for investigation of medical neglect. Mother took over
       setting up medical treatment and, due to the PFA, effectively shut
       Father out of participation.

       An additional day of trial occurred on June 14, 2018. Closing
       arguments by both parties were submitted via briefs on June 25,
       2018.

Trial Court Opinion, 7/27/2018, at 1-4.

       Prior to the custody trial, the court entered an interim custody order,

awarding shared legal custody to Mother and Father, with Mother having

____________________________________________


       (f) Costs.--The court may order a party to pay all or part of the
       costs of the counseling and evaluations under this section.



                                           -4-
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primary physical custody, and Father having partial physical custody on

alternate weekends from Friday at 6:00 p.m. until Sunday at 8:00 p.m., as

well as every Monday at 4:30 p.m. until Tuesday at 7:30 a.m. See Interim

Order for Custody Pending Trial, 9/29/17, at 5-6.

       The order precluded Father’s family from having any contact with Child

or S.F. See id., at 6. Further, the order required Father to obtain a threat of

harm evaluation, although the order notes “Mother concedes that she does

not believe that Father poses a current risk to the children . . .” See id., at

3.

       Following three hearings, the trial court issued a detailed opinion and

order on July 27, 2018. This order provided Father with sole legal custody

and primary physical custody of Child. See Order of Custody, 7/27/18, at 1,

4. It also granted Mother partial physical custody, on alternate weekends,

from Thursday after school until the start of school Monday morning. See id.,

at 4. On the weekends Mother does not have physical custody, the order

provides Mother with physical custody from Sunday at 6:00 p.m. until Monday

at the start of school.4 See id.

       During summer, the order provides each parent with two non-

consecutive weeks of custody. See id. With regard to holidays, the court




____________________________________________


4The order contains specific times for the exchanges to the extent that Child
does not attend a brick and mortar school.


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granted Father physical custody for all holidays, except Mother’s Day,

concluding that Mother does not celebrate holidays. See id., at 5.

     The court also denied Mother’s petition for contempt, and granted

Father’s petition for contempt, ordering Mother to pay Father $1,000.00. See

id., at 17, Trial Court Opinion, 7/27/18, at 28-29. The court also ordered

Mother to pay the costs of the threat of harm evaluation.        See Order of

Custody, 7/27/18, at 17. Mother then filed this timely appeal.

     On appeal, Mother raises the following issues for our review:
     1. Whether the trial court erred or abused its discretion when it
        changed the status quo of Mother as shared legal and primary
        physical custodian to sole legal and majority physical custody
        to Father when the trial court:

        a. Relied on statements and facts not in evidence;

        b. Discounted the testimony of the expert witness stating
           without evidence other than speculation of Father that
           Mother manipulated the [threat of harm] evaluation;

        c. Did not permit Mother reasonable time to complete her
           testimony and refused to permit her to offer rebuttal to
           testimony proffered by Father’s witness;

        d. Incorrectly determined that factors significantly weigh in
           favor of Father, discounting Father’s domestic violence,
           Mother as primary caregiver of the child since birth, [and]
           the child’s stability and wellbeing;

        e. Failed to award any holidays to Mother in contraindication
           of the prior order of custody developing the record about
           holiday time celebrated by Mother;

        f. Displayed various verbal and physical conduct towards
           Mother in its substitut[ing] its personal standard and bias

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              instead of maintaining neutrality, all of which tainted its
              determination of custody.

       2. Whether the trial court erred or abused its discretion when it
          found Mother willfully disobeyed the court order in
          contraindication of Father’s own evidence.

       3. Whether the trial court erred or abused its discretion when it
          found that Father was not in contempt of court for intentionally
          returning the child late multiple times, for his failure to obtain
          the [threat of harm] evaluation as ordered by the October
          pretrial and for the trial court’s decision to order Mother to
          reimburse Father for his [threat of harm] evaluation.
Mother’s brief at 22-23 (unnecessary capitalization and suggested answers

omitted).5

       In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.

§§ 5321-5340, our standard of review is as follows:

       In reviewing a custody order, our 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).


____________________________________________


5 Mother’s argument section does not align with her statement of questions
involved, as Mother combines several sections into one argument. Further,
Mother includes no argument regarding question three.

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      We have stated:

      [t]he 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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).

      This Court has further defined our standard of review: stated the

following regarding an abuse of discretion standard.

      Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating
      the court’s order. An abuse of discretion is not merely an error of
      judgment, but if the court’s judgment is manifestly unreasonable
      as shown by the evidence of record, discretion is abused. An
      abuse of discretion is also made out where it appears from a
      review of the record that there is no evidence to support the
      court’s findings or that there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations

omitted).   With any custody case decided under the Act, the paramount

concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338.

      The Act provides that, upon petition, a trial court may modify a custody

order if it serves the best interests of the child. 23 Pa.C.S.A. § 5338. Section

5328(a) sets forth the best interest factors that the trial court must consider

in addressing a petition to modify custody. See E.D. v. M.P., 33 A.3d 73, 80-

81 (Pa. Super. 2011). Trial courts are required to consider “[a]ll of the factors

listed in section 5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A.,

33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).

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     These factors are:

     § 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) The information set forth in section 5329.1(a)(1) and
     (2) (relating to consideration of child abuse and involvement with
     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.




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           (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.

           (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.

     Further, we have explained:

     Section 5323(d) provides that a trial court shall delineate the
     reasons for its decision on the record in open court or in a written
     opinion or order. Additionally, section 5323(d) requires the trial
     court to set forth its mandatory assessment of the sixteen
     [Section 5328(a) custody] factors prior to the deadline by which
     a litigant must file a notice of appeal. . . .

     In expressing the reasons for its decision, there is no required
     amount of detail for the trial court’s explanation; all that is
     required is that the enumerated factors are considered and that
     the custody decision is based on those considerations. A court’s



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       explanation of reasons for its decision, which adequately
       addresses the relevant factors, complies with Section 5323(d).

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (quotation marks and

citations omitted).

       Mother does not contend that the trial court failed to consider any

specific factor. Rather, Mother asserts that the trial court incorrectly weighed

the custody factors in favor of Father, discounting Father’s domestic violence,6

Mother’s role as the primary caregiver, and Child’s stability and wellbeing.

See Mother’s brief, at 31. Mother argues that she was the primary caretaker

for Child, including homeschooling Child, and recounts Child’s medical issues

and her responses to them. See id., at 31-40.

       Mother also notes the trial court must consider the parental duties

performed by each party on behalf of the child, and the need for stability and

continuity in the child’s education, family life, and community life. See id., at

40. Mother asserts that the trial court failed to take into consideration the

stability of Child in uprooting him from his home and discontinuing his

homeschooling, and failed to account for the activities he engaged in with

Mother, including taking piano lessons. See id. Mother faults the trial court

____________________________________________


6  Mother did not assert that the trial court erred in discounting Father’s
domestic violence in her Rule 1925(b) statement. Accordingly, this issue is
waived. See Krebs v. United Refining Company of Pennsylvania, 893
A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to preserve issues by
raising them both in the concise statement of errors complained of on appeal
and statement of questions involved portion of the brief on appeal results in a
waiver of those issues). Notwithstanding Mother’s waiver of this issue, the
trial court appropriately considered Father’s history of abuse.

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for failing to consider the conditions in Father’s home, which include Father

and Father’s paramour not coming home until at least 5 p.m., and the fact

there are three other siblings, either step-siblings or half-siblings, in the home.

See id.

       Further, Mother faults the trial court for failing to award her any holiday

time, as Mother claims she presented evidence “that Mother does celebrate

Jewish holidays.”       See id., at 42.        Additionally, Mother notes that the

parenting plans submitted by the parties included holidays for both parents.7

See id., at 42-43. Finally, in cursory fashion, Mother references the standard

for awarding shared legal and physical custody, before encouraging this Court

to reverse the trial court’s order. See id., at 43.

       The trial court examined each custody factor in a thorough and

comprehensive opinion. We briefly summarize the court’s findings as they

relate to the custody factors raised by Mother. With regard to factor two,

consideration of abuse and safety of the child, the trial court recognized the

prior PFA order against Father, as well as his guilty plea to Indirect Criminal


____________________________________________


7 With respect to holidays, Mother asserts that there was testimony that she
celebrates Jewish holidays. Mother’s reference to the record is related to
testimony presented by her friend, M.B. While Father submitted a proposed
holiday schedule alternating holidays, including Yom Kippur and Rosh
Hashanah, Mother presented a holiday schedule that did not include any
proposed schedule for Yom Kippur or Rosh Hashanah. See Mother’s Parenting
Plan, at unnumbered 4. Father testified “holidays started dropping of[f] at
[Mother]’s request . . .”, including Christmas, Easter and Halloween. See
N.T., 4/2/18, at 40-41.


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Contempt. See Trial Court Opinion, 7/27/18, at 7-10. The court concluded

factor two favored Mother. See id., The court also concluded that Mother

engaged in medical neglect of Child based on her refusal to take Child to a

doctor, and her lack of appropriate vision care for Child. See id., at 10-13.

      On factor three, the court observed that Mother performed more

parental duties during the marriage. See id., at 13. However, the court noted

that Father also performed parental responsibilities. See id., at 14. The court

expressed concern about the fact that Child had not seen a doctor since he

was two weeks old. See id., at 14. Further, the court believed that Mother

isolates Child, not allowing the family to celebrate holidays, go to doctors,

attend public school, or contact Father’s family. See id., at 16 The court

determined factor three weighed in Father’s favor. See id., at 16-17.

      Similarly, in assessing factor four, stability and continuity in the child’s

life, the trial court also weighed this factor in Father’s favor. See id., at 20-

21. The court again noted the isolation of Child at Mother’s home. See id.,

at 20. Additionally, the court “was impressed with Father’s fiancée, with whom

Father now has a child.      She remained calm in the face of aggressive

questioning and tone by Mother’s counsel. She and Father appear to have a

very stable relationship. . .” See id., at 19-20. The court also noted that

Mother’s “attempts to turn the child against Father are subtle, manipulative,

and insidious”, concluding that factor eight favored Father.     See id., at 22-

23. The court observed Mother made Child sad by informing him that the rest


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of the family was picking out a new dog while Child was in Father’s custody.

See id., at 23.

      The court found that Mother is incapable of making reasonable child-

rearing decisions, concluding Mother had questionable judgment and attention

to Child’s medical and educational needs. See id. at 28. It also found that

Mother was more focused on control, as well as proving Father was a bad

parent, than acting in Child’s best interest. See id. The court observed that

Father was asking the right questions medically and attempting to assert some

parental control, and Child was caught in the crossfire and being negatively

impacted. See id. Accordingly, the court awarded sole legal custody, and

primary physical custody, to Father. See id. The court awarded no holidays

to Mother, other than Mother’s Day, because the holidays did not seem

important to Mother. See id. at 20-21.

      The trial court, in a comprehensive fashion, considered and weighed all

relevant factors. In essence, Mother questions the trial court’s conclusions

and assessments and seeks to have this Court to re-find facts, re-weigh

evidence, and/or re-assess credibility in her favor.    This, we may not do,

absent an abuse of discretion. See C.R.F., 45 A.3d at 443. As we stated in

King v. King, 889 A.2d 630, 632 (Pa. Super. 2005):

      It is not this Court’s function to determine whether the trial court
      reached the ‘right’ decision; rather, we must consider whether,
      ‘based on the evidence presented, given [sic] due deference to
      the trial court’s weight and credibility determinations,’ the trial
      court erred or abused its discretion. . . .


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(quotation marks and citations omitted). The trial court wrote a detailed and

exhaustive opinion discussing each factor. The trial court’s conclusions are

supported by the record, and we discern no error of law or abuse of discretion.

      In Mother’s second issue, she faults the trial court for discounting the

testimony of the expert witness, Chad Schaeffer, C.A.D.C., who was qualified

as an expert by Father’s counsel, and testified with regard to Father’s threat

of harm evaluation. See Mother’s brief, at 45. Mother recounts events of

domestic violence that she contends were not in dispute. See id., at 45-48.

Mother contends that the trial court erred in discounting these events, and the

evaluator’s conclusion that Father exhibits a mild to moderate proclivity

towards domestic violence. See id., at 45-54. Ultimately, Mother faults the

trial court for not crediting the testimony regarding domestic violence, and for

failing to find that Mother’s actions were appropriate. Mother correctly notes

that “[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.”      See

Pa.C.S.A. § 5328(a)(13).

      With regard to expert testimony, we have stated:

      The trial court was under no obligation to delegate its decision-
      making authority to [an expert witness]. It is an abuse of
      discretion, however, for a trial court to dismiss as unpersuasive,
      and to totally discount, uncontradicted expert testimony.
      Accordingly, while a trial court is not required to accept the
      conclusions of an expert witness in a child custody case, it must
      consider them, and if the trial court chooses not to follow the
      expert’s recommendations, its independent decision must be
      supported by competent evidence of record.



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M.A.T., 989 A.2d at 19-20 (quotation marks and citations omitted).

      The trial court discounted Schaeffer’s testimony, writing:

      Due to the rushed nature of the report at the end without Father’s
      opportunity to respond, as well as the testimony as a whole by all
      witnesses to which the evaluator did not have access, the [c]ourt
      must reach a different conclusion. Notably, the testimony of S.F.
      in this case contradicts the findings by the evaluator that the
      relationship issues permeated the marriage. She indicated that
      she only became aware of conflicts between the parties near the
      end of the relationship. Additionally, Mother seems to be at least
      an equal player in the conflict. S.F. stated, “I just know that there
      was - it was bordering upon violence. I would hear her screaming
      and stuff at night, things breaking, and being thrown around.”
      There was also an incident where the daughter observed her
      parents fighting in which she was asked by Father to be a witness.
      None of the testimony indicated that Father was more at fault in
      these incidences than Mother.

Trial Court Opinion, 7/27/18, at 9-10.

      Schaeffer concluded that Father would pose a threat of harm to Child,

while Father was interacting with a romantic partner or paramour, based upon

his conclusion that Father engages in intimate partner abuse.         See N.T.,

3/29/18, at 11. However, Mr. Schaeffer conceded that Mother’s “testimony

more than any other source of information established that pattern,

established that pattern [of abuse] more solidly than any other piece of

information.” Id. at 42. Since the court found “Father was significantly more

credible than Mother,” it was reasonable for the court to discount Schaeffer’s

testimony.

      Essentially, Mother objects to the credibility determinations made by the

trial court with respect to the issues regarding domestic violence. However,



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we defer to the credibility determinations of the trial court. See C.R.F., 45

A.3d at 443.

      The trial court determined Father’s testimony was more credible than

Mother’s testimony. See Trial Court Opinion, 7/27/18, at 8. It therefore

rejected Schaeffer’s opinion, which was based primarily on the credibility of

Mother. The trial court appropriately considered the allegations of domestic

violence, as well as Schaeffer’s expert recommendation, and its findings and

conclusions are supported by competent evidence of record. We find no error

of law or abuse of discretion.

      In her third issue, Mother faults the trial court for relying on statements

and facts not in evidence. See Mother’s brief, at 55. Initially, Mother notes

the trial court’s opinion references the date of marriage as occurring in 2011

rather than 2001. See id. Further, she contends the trial court erroneously

concluded that a child abuse investigation was still ongoing, as the

investigation was closed without a finding of abuse 11 days before the court

issued its order.   See id.      Mother also asserts the trial court erred by

referencing Mother’s background to conclude that Mother knew a Section 5329

evaluation would be costly, and sought one despite her knowledge that Father

did not pose a risk to Child. See id., at 56. Mother then references several

text exchanges between Mother and Father that she contends are not included

in the record but are mentioned by the court. See id., at 58-59.




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      With respect to Mother’s and Father’s marriage occurring in 2001, rather

than 2011, the trial court acknowledged this error but states the date of

marriage was “not even a slight consideration. . .” See Trial Court Opinion,

9/26/18, at 3. We conclude that this error is harmless. See In re M.T., 607

A.2d 271, 281 (Pa. Super. 1992) (observing that an error must actually harm

an appellant to justify awarding a new trial).

      Similarly, the trial court notes that although Mother asserts the

investigation into medical neglect was closed prior to the court entering its

opinion and order, the court was not made aware of the investigation’s

closure. See Trial Court Opinion, 9/26/18, at 3.       We discern no abuse of

discretion, or harm for that matter, from the trial court’s reference to the child

abuse investigation.

      Mother also challenges the trial court’s observation that Mother knew

the threat of harm evaluation would be costly. This issue also lacks merit. A

court is entitled to reach inferences from the evidence presented utilizing

common sense. See T.D. v. E.D., 194 A.3d 1119, 1130 (Pa. Super. 2018).

Here, Mother testified she had a Master’s degree in clinical mental health

counseling, as well as previous experience running her own counseling

business, which had two offices.        See N.T., 6/14/18, at 57-58.         This

background gave the trial court a sufficient basis to conclude Mother had a

general knowledge of the costs associated with evaluations and counseling.




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      With regard to the text messages, the text messages purportedly

contain the following information from Father to Mother: “Hey”; a text

message the following day saying that the previous text was sent in error due

to Father having a new phone; and “Here. A box out here you will want.” See

Mother’s brief, at 58. We agree with Mother that a trial court generally may

not consider evidence that is outside the record. See M.P. v. M.P., 54 A.3d

950, 955 (Pa. Super. 2012). A court abuses its discretion when it relies upon

outside information as the basis for its decision. Id.

      Notwithstanding this general principle, we conclude that Mother has

waived this issue. Mother’s brief acknowledges that Father’s written closing

argument stated “details about the ICC, which were not in evidence or on the

record.”   Mother’s brief at 58.   A review of the record reveals that it was

Mother’s counsel who suggested: “He not only texted her things that were not

relevant to the children, but he put a box at her door that she was unsure of

what -- he said he had a box there for her.” N.T., 1/23/18, at 14. At the

custody hearing, Mother’s counsel requested that the court take judicial notice

of the PFA criminal contempt proceedings. See N.T., 6/14/18, at 181. The

court granted Mother’s request. See id., at 182

      Further, neither the record from the PFA, nor the ICC, is included in the

certified record. It is well settled that we cannot consider anything which is

not part of the record in this matter.        See Jahanshahi v. Centura

Development Co., Inc., 816 A.2d 1179, 1183 (Pa. Super. 2003). It is the


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appellant’s responsibility to supply the appellate court with the complete

record for appellate review. Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.

Super. 2006) (en banc).

        Not only did Mother request that the court take judicial notice of the

underlying records, she also has failed to ensure that they are included in the

certified record.8 We therefore conclude that Mother has waived this issue.

        In her fourth issue, Mother asserts that the court displayed improper

verbal and physical conduct towards Mother, and substituted its personal

standards and bias instead of maintaining neutrality. See Mother’s Brief, at

61. Mother notes that during the custody trial, the court made a referral to

Children and Youth based on medical neglect. See id. Mother argues the trial

court expressed repeated statements of concern for the medical welfare of

Child. See id. Mother references Code of Judicial Conduct Rule 2.2, and faults

the trial court for concluding that Child needed to see a medical doctor rather

than a naturalist. See id., at 62-64. Mother asserts that the trial court’s

demeanor intimidated Mother and Mother’s counsel. See id., at 64. Mother

claims the trial court made inappropriate loud comments and gestures, rushed

Mother’s testimony, and yelled at Mother. See id., at 64-67. As an example

of the trial court rushing Mother’s case, she contends she did not have an




____________________________________________


8   The reproduced record also does not contain these documents.

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opportunity to rebut certain portions of Sa.F.’s testimony. Mother concludes

that the court should have recused itself. See id., at 70.

       With respect to recusal:

       In this Commonwealth, a party must seek recusal of a jurist at the
       earliest possible moment, i.e., when the party knows of the facts
       that form the basis for a motion to recuse. If the party fails to
       present a motion to recuse at that time, then the party’s recusal
       issue is time-barred and waived.

Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017) (citations omitted).

       To the extent that Mother challenges the trial court’s alleged bias or

improper conduct, we conclude that Mother has waived this issue by failing to

timely seek recusal. When Mother’s counsel expressed a hope that the court

would “have an open mind at least to listen . . .”, the court stated that it would

keep an open mind. See N.T., 6/14/18, at 14-17. At no point did Mother

request recusal. Based on Mother’s failure to request recusal at all, let alone

at the earliest possible moment, we conclude Mother has waived this issue.9

       With respect to the court’s decision not to allow Mother to rebut Sa.F.’s

testimony regarding “witchcraft,” and Mother’s relationship with Sa.F., we do

not discern an abuse of discretion.

       “Questions concerning the relevancy of evidence are within the sound

discretion of the trial court and will not be reversed on appeal absent a clear


____________________________________________


9 Moreover, even if Mother had not waived this issue, our review of the record
reveals that the court’s actions towards Mother and her counsel were not
improper, and that Mother and Father had essentially the same amount of
time to testify.

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abuse of discretion.” Sprague v. Walter, 656 A.2d 890, 907 (Pa. Super.

1995) (citation omitted). Additionally, the standard of review of a trial court’s

admission or exclusion of evidence is well established and very narrow:

         These matters are within the sound discretion of the trial
         court, and we may reverse only upon a showing of abuse of
         discretion or error of law. An abuse of discretion may not
         be found merely because an appellate court might have
         reached a different conclusion, but requires a result of
         manifest unreasonableness, or partiality, prejudice, bias, or
         ill-will, or such lack of support so as to be clearly erroneous.
         In addition, [t]o constitute reversible error, an evidentiary
         ruling must not only be erroneous, but also harmful or
         prejudicial to the complaining party.

Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa. Super. 2007) (citation omitted).

      Mother testified that Sa.F. worked for her at her counseling office. See

N.T., 6/14/18, at 109-10. Mother testified to concerns regarding Sa.F. when

she found witchcraft books: “They were black witchcraft books. Just putting

the pieces together, with putting things in my salad dressing, was she trying

to do some type of spell, you know. . .” See id., at 177. Mother also claimed

that Sa.F. attempted to poison her. See id., at 107-10.

      Sa.F. then testified. Sa.F. denied having “witchcraft” books, describing

them as “young adult fictional novels like Harry Potter that most kids read.”

See id., at 215. She denied attempting to harm Mother, and testified that

she worked every week for Mother on two or three weeknights, as well as

eight hours on Saturday, and was paid $40.00 every two weeks. See id., at

207, 260-61.




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       Mother’s counsel suggested that Mother should be permitted to respond

to Sa.F.’s testimony because “she didn’t know that [Sa.F.] was going to lie to

the degree that she - - that she did.” See id., at 261. The court then stated:

“. . . we’re done here.” See id.

       The trial court’s refusal to allow Mother to provide rebuttal testimony

was not an abuse of discretion.          The court appropriately limited testimony

regarding issues that had generally been covered, and were, at best,

tangentially related to the issues in dispute.

       In Mother’s final issue, she asserts the trial court erred when it found

Mother in contempt, and awarded Father $1,000.00 in counsel fees.10 Mother

contends that the trial court demonstrated anger towards Mother based on

her refusal of Father’s request to transport Child to an urgent care facility

when Child vomited in November of 2017, and then refused Father custodial

time because Child was sick. See Mother’s Brief, at 72.

       Mother claims that she was not comfortable traveling with Child because

he was vomiting and wanted to rest. See id. Mother contends that she was

texting Father about the situation and receiving responses from Father’s

paramour. See id., at 73. Mother asserts that Child’s condition improved


____________________________________________


10 Although Mother asserted the trial court erred in denying her petition for
contempt, and for assessing Mother the cost of the threat of harm evaluation,
in both her concise statement of errors complained of on appeal and her
statement of questions involved, the argument section of her brief does not
raise these issues. Accordingly, they are waived. See In re W.H., 25 A.3d
330, 339 n.3 (Pa. Super. 2011).

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and she texted Father the next day to set up a custody exchange. See id.,

at 74.

         Mother claims that she did not hear from Father directly or for the

balance of the weekend. See id. Mother explains that she did not understand

why Father’s paramour was texting her rather than Father, and was

attempting to do what was best for Child who was sick and too unwell to

travel. See id., at 75. Mother claims she had no prior incidents where she

violated an order of court. See id., at 76.11

         The trial court observed that Father’s motion for contempt related to

two events. See Trial Court Opinion, 7/27/18, at 28-29. The first occurred

when Mother failed to permit Father to exercise shared legal custody when

Mother unilaterally made medical decisions for Child and refused to take Child

to the doctor when Child was sick and throwing up. See id., at 28. Further,

the court noted that Father alleged Mother withheld physical custody from

Father for three days, alleging Child was too sick to visit or speak with Father,

while also refusing to take Child to the doctor.     See id.   The court found

Mother in contempt of the interim custody order, and awarded Father

attorneys’ fees of $1,000.00. See id., at 28-29.



____________________________________________


11 Mother’s brief also asserts “[t]he trial court arbitrarily awarded Father
reimbursement of attorney’s fees in the amount of $1,000.” Mother’s brief at
75. However, Mother fails to develop this argument, and we therefore
conclude that she has waived this issue. See In re W.H., 25 A.3d 330, 339
n.3 (Pa. Super. 2011).

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      As is the case with child custody orders in general, we review a contempt

order in a child custody case for an abuse of discretion. See Garr v. Peters,

773 A.2d 183, 189 (Pa. Super. 2001).

      In order to support of finding of civil contempt, the trial court must

determine “(1) that the contemnor had notice of the specific order or decree

which she is alleged to have disobeyed; (2) that the act constituting the

contemnor's violation was volitional; and (3) that the contemnor acted with

wrongful intent.” Harcar v. Harcar, 982 A.2d 1230, 1235 (Pa. Super. 2009)

(citation omitted). Generally, our case law provides that trial courts should

comply with the following five elements to ensure due process in a civil

contempt proceeding: “(1) a rule to show cause why attachment should issue;

(2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt

citation; and (5) an adjudication.”     Id., at 1234-35 (citation omitted).

However, compliance with all five of these elements is not mandatory. Id.,

at 1235. “[W]hen the contempt proceedings are predicated on a violation of

a court order that followed a full hearing, ‘due process requires no more than

notice of the violations alleged and an opportunity for explanation and

defense.’”   Diamond v. Diamond, 792 A.2d 597, 601 (Pa. Super. 2002)

(citation omitted).

      The record supports the trial court’s determination. The record reveals

that Mother withheld custody from Father claiming Child was sick, but refused




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to take Child to the doctor.12 See N.T., 6/14/18, at 23-25, 130-132; N.T.,

4/2/18, at 56-58. Although Mother asserts that Child got better the next day,

and that she reached out to Father to schedule a drop-off time, Mother then

ignored text messages from Father’s paramour, who was the prior

intermediary between Father and Mother due to the PFA, requesting when

Child would be available for the custody exchange. See N.T., 6/14/18, at 23-

25; N.T., 4/2/18, at 56-58.         Mother then blocked the text messages from

Father’s paramour and, as a result, Father did not get to spend his birthday

with Child. See N.T., 4/2/18, at 56-58. Given these circumstances, the trial

court did not abuse its discretion when it found Mother in contempt.

       For the foregoing reasons, we affirm the order of the trial court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2019




____________________________________________


12 In Mother’s written closing argument, she argued that “[t]he parties position
is to take a ‘sick child’ approach rather than a ‘well child’ approach, which
corresponds to Mother’s and Father’s former religious beliefs. Thus, when the
child is sick, he should be taken to the doctor, rather than [] scheduling ‘well
child’ visits.” Mother’s closing argument at unnumbered 5.

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