J-A02045-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
S.B.,                                         :   IN THE SUPERIOR COURT OF
        Appellant                             :        PENNSYLVANIA
                                              :
                    v.                        :   No. 2417 EDA 2014
                                              :
R.B., Jr.                                     :


                Appeal from the Order Entered August 11, 2014
                 in the Court of Common Pleas of Pike County
                       Civil Division, at No. 1278 of 2012

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                            FILED MARCH 20, 2015

        S.B. (Mother) appeals the order of the Court of Common Pleas of Pike

County entered August 11, 2014, that awards primary physical custody of

her sons, R.B., born in December 2006, and T.B., born in April 2009

(Children), to their father, R.B., Jr. (Father), and permits Father to relocate

the Children to Illinois.   The order awards Mother partial physical custody

and a schedule of visitation. The parties share legal custody. We affirm.

        The parties separated in June 2012 when Father returned to his

hometown of Wheaton, Illinois. Mother remained in the marital residence in

Greentown, Pike County, with the Children.        Mother filed a complaint in

divorce on June 19, 2012, that included a count for custody. Father filed a

counter-claim, in which he sought primary physical custody of the Children,

and the right to relocate them to Illinois.
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     The parties stipulated to an interim custody agreement in August 2012

by which Mother exercised primary physical custody of the Children, and

Father exercised partial physical custody. They shared legal custody.

     The trial court held a hearing on the issue of custody on April 25 and

26, 2013, and, on May 31, 2013, entered an order awarding shared legal

custody to the parties, primary physical custody to Mother, and partial

physical custody to Father.

     In entering the May 2013 order, the trial court adopted the

recommendations of licensed child psychologist Judith A. Munoz, M.A., of

Pocono Psychological Services, who conducted a custody evaluation of

Mother, Father, the Children, and the Children’s paternal grandparents in

March 2013. Ms. Munoz testified at the April 2013 hearing in support of the

recommendations set forth in her report.      In addition to a partial physical

custody schedule for Father, Ms. Munoz testified that Mother should permit

and encourage Father to be more involved in the Children’s lives and that

Mother should do that through better co-parenting.

     Under the terms of the May 31, 2013, order, Father’s first period of

partial physical custody was to start in Illinois on June 15, 2013, and

continue to July 14, 2013.    On June 5, 2013, however, Mother filed an

emergency motion to modify and decrease Father’s custody for the summer

of 2013. The trial court denied the motion.




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        On June 14, 2013, Mother filed a motion to suspend Father’s summer

custody that was to begin on the next day. Mother claimed in her motion

that R.B. had told his counselor that Father had engaged him in

inappropriate sexual behavior. The alleged abuse had occurred in December

2012.    The trial court denied Mother’s motion in an order dated June 20,

2013.

        Susan Thompson, a licensed professional counselor and outpatient

therapist at Friendship House in Honesdale, Pennsylvania, reported R.B.’s

statements to ChildLine.   The Department of Children and Family Services

(DCFS) of DuPage       County, Illinois,   investigated    the   allegations and

determined that they were unfounded.

        On August 19, 2013, Mother filed a motion to suspend Father’s

visitation in Illinois pending completion of home studies and background

checks on all the members of Father’s household.          In August 2013, DCFS

received another report from Mother alleging that Father had abused R.B.

This report arrived as the parties were discussing Father’s plans to spend a

weekend in Pennsylvania with the Children that September.                  DCFS

investigated and determined that the allegations were, again, unfounded.

        On September 6, 2013, Father filed a motion to modify the custody

order of May 31, 2013, in which he averred that Mother was initiating false

claims that he was sexually abusing the Children and that she was otherwise




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obstructing his custodial rights and his relationship with the Children.   He

also alleged that Mother refused to co-parent.

        Lackawanna County Children and Youth Services (LCCYS) received a

report of alleged sexual abuse of R.B. by Father on December 24, 2013,

after Father had traveled to Pennsylvania for his period of Christmas holiday

custody of the Children. As a result, Father was forbidden to have contact

with the Children for sixty days.       LCCYS investigated the report and

determined, on February 18, 2014, that it was, yet again, unfounded.

        In February 2014, Mother’s 19-year old nephew filed a report in which

he alleged that Father had sexually abused R.B. in the summer of 2009.

Pike County Children and Youth Services (PCCY) investigated the report and

deemed it unfounded on March 13, 2014.

        On February 24, 2014, Mother filed a motion to modify the custody

order to restrict Father to supervised custody of and communication with the

Children.    The trial court scheduled this Motion and Father’s motion for

modification filed on September 6, 2013, for hearing in May 2014. The trial

court also ordered Judith Munoz to conduct evaluations of the parties and

the Children and to update her recommendations from her report of April

2013.

        The trial court conducted a full evidentiary hearing on May 23, 2014;

June 5, 2014; July 17, 2014 and July 18, 2014.         Father presented the

testimony of licensed psychologist, Judith T. Munoz; intake caseworker for



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PCCY, Edward Calabrese; licensed professional counselor, Susan Thompson;

and the regional director of Friendship House in Honesdale, Pennsylvania,

Nicole Watters Hettes.    Father also testified on his own behalf.    Mother

presented the testimony of Thomas Regan, a National Certified Counselor for

Catholic Social Services; Theresa Vosefski-Sears, licensed clinical social

worker with Kids Peace; Anthony Zuclich, M.A., of Youth Advocate Programs,

Inc.; Karen Ryan, Mother’s sister; and Tracey DiMattia, trauma and sex

abuse therapist for Kid’s Peace. Mother also testified on her own behalf.

      The trial court entered the order complained of on August 11, 2014.

This timely appeal followed.1

      Mother’s brief is deficient in several ways. For instance, she did not

provide a statement of the questions involved. See Pa.R.A.P. 2116(a) (“No

question will be considered unless it is stated in the statement of questions

involved or is fairly suggested thereby.”).   Mother does however precede

each section of her argument with a question in boldface type. Mother also

failed to include a statement of the standard and the scope of review and a

statement of the case. See Pa.R.A.P. 2111 (a). We have accepted Mother’s




1
  Mother untimely filed her Rule 1925(b) statement. There was, however,
no objection or claim of prejudice from Father to Mother’s late filing so we
have accepted it in reliance on our decision in In re K.T.E.L., 983 A.2d 745
(Pa. Super. 2009).



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brief with these deficiencies because they do not hinder our review of this

matter.2 We list those questions here as her questions involved:

             1. [Mother] avers that the [t]rial [c]ourt erred when it
      disallowed the testimony of Thomas Regan in the field of
      psychology despite the fact that [Father] stipulated to his
      credentials for said testimony.

            2. The [t]rial [c]ourt also misstated and did not give due
      deference to the opinion of Tracy DiMattia, the sexual abuse
      counselor, who gave the opinion that she believed the
      [C]hildren’s stories of abuse, that custody should be granted to
      Mother and that Father’s custody should be supervised by
      professionals.

            3. The [t]rial [c]ourt erred in not finding that the report of
      the Custody Evaluator did not include any theory or facts as to
      how [Mother] created the allegations of the abuse by the
      [C]hildren.

            4. The [t]rial [c]ourt erred in finding that Ms. Munoz’
      report supports a finding discrediting the abuse allegations[.]

Mother’s Brief at 7, 8-9, 9, and 13, respectively.

      Our scope and 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,

2
  We remind Appellant’s counsel, John Henry Klemeyer, Esquire, that proper
appellate advocacy requires a reading and understanding of the Rules of
Appellate Procedure. We strongly caution counsel to adhere in future
appeals to our Rules of Appellate Procedure—or risk waiver of his clients’
claims.



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

         We have stated 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.

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

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

         The primary concern in any custody case is the best interests of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004)).

         We must accept the trial court’s findings that are supported by

competent evidence of record, and we defer to the trial court on issues of

credibility and weight of the evidence. If competent evidence supports the

trial court’s findings, we will affirm even if the record could also support the




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opposite result.   See In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.

Super. 2003).

      Additionally,

         [t]he parties cannot dictate the amount of weight the trial
         court places on evidence. Rather, the paramount concern
         of the trial court is the best interest of the child. Appellate
         interference is unwarranted if the trial court’s consideration
         of the best interest of the child was careful and thorough,
         and we are unable to find any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002) (quoting Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)).

      The trial court examined each of the sixteen statutory factors

governing custody enumerated in 23 Pa.C.S.A. § 5328(a), and each of the

factors governing relocation enumerated in 23 Pa.C.S.A. § 5337(h) in its

order entered August 11, 2014.      Mother has chosen to challenge only the

trial court’s determination, pursuant to 23 Pa.C.S.A. § 5328(a)(2), 3 that

Father did not abuse the Children sexually. She does not challenge the trial

court’s determination on any other of the custody or relocation factors.

      Mother first complains that the trial court erred when it disallowed the

testimony of Thomas Regan. We quote the trial court’s response to Mother’s

complaint, with approval:



3
  23 Pa.C.S.A. §5328(a)(2) provides that the trial court shall consider, “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.”


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             Appellant initially contends that this [c]ourt disallowed the
      testimony of Thomas Regan as an expert in the field of
      psychology.     Our August 11, 2014, Custody Order clearly
      indicates that we received the expert testimony of Mr. Regan,
      but chose not to accept his expert conclusions or opinions. See
      Finding of Fact No, 228.[4]        The [c]ourt found the expert
      testimony and opinions of Judith Munoz, M.A., to be more
      persuasive. As we explained, Mr. Regan did not possess a valid
      license in psychology at the time of trial and was not engaged in
      the practice of psychology even though opposing counsel did not
      object to his qualifications as an expert witness in that field.
      This [c]ourt respectfully submits it was within its discretion to
      accept all, some or none of Mr. Regan’s expert testimony. The
      trial record clearly reveals that we allowed the expert testimony
      of Mr. Regan, but simply did not find the same credible.
      Accordingly, the [c]ourt committed no abuse of discretion or
      error of law as to Mr. Regan's testimony.

Trial Court Order, 9/17/14, at 2.

      In addition, the trial court noted, in its Finding of Fact 224, that Mr.

Regan formed his opinion without ever having met the Children, “224. Mr.

Regan never met or interviewed the minor children.” The trial court did not

err in failing to credit Thomas Regan’s testimony.      Mother’s first issue is

without merit.

      In her second issue, Mother claims that the trial court misstated and

failed to give due deference to the testimony of Ms. DiMattia. The trial court

responded:

      Appellant next alleges that the [c]ourt misstated and failed to
      give due deference to the testimony of Tracy DiMattia. The
      [c]ourt contends that its findings as to Ms. DiMattia’s testimony

4
  “228. As Mr. Regan does not possess a license in psychology and
conducted his co-parenting sessions in a manner which included mainly
separate sessions with Mother alone, his alleged expert opinions are without
merit.”


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      were accurate. See Findings of Fact Nos. 281-293. The mere
      assertion that Ms. DiMattia believed the [C]hildren’s stories of
      abuse does not conclusively determine the merits of those
      allegations. Rather, the [c]ourt considered all relevant evidence
      in concluding that [Mother] failed to establish evidence of
      physical abuse by [Father]. In addition, Ms. DiMattia testified
      that she could not give an exact reason why the [C]hildren acted
      out sexually during therapy sessions. See Finding of Fact No.
      290.[5] As such, the [c]ourt gave due consideration to the
      testimony and expert opinions of Ms. DiMattia and committed no
      abuse of discretion or error of law with regard to the same.

Id.

      We find no abuse of discretion in the way the trial court interpreted

Ms. DiMattia’s testimony. The record supports the trial court’s determination

that Mother failed to present evidence establishing the fact that Father

abused the Children. Where competent evidence supports the trial court, we

will not disturb the trial court’s findings.   See In re Adoption of T.B.B.,

supra. Mother’s second issue is without merit.

      Mother next complains that the trial court erred in failing to find that

Ms. Munoz’s report contained no theories as to how Mother created her

allegations of abuse. We again quote the trial court with approval:

            Appellant also contends that Ms. Munoz did not set forth
      any theories or facts as to how Mother created the allegations of
      abuse. The [c]ourt does not believe that a specific theory or
      idea as to how, if at all, Mother created the allegations of abuse
      was necessary. In fact, a finding that Mother created such idea
      was collateral to Ms. Munoz’s determination that Mother was
      perpetuating the allegations of sexual abuse without any factual
      foundation other than the statements of the [Children].

5
  “290. When asked why these behaviors may have occurred, Ms. DeMattia
stated that there could be many different reasons, but could not give an
exact reason.”


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      Allegations of abuse, as those alleged by Mother, can never be
      taken lightly. Nevertheless, our exhaustive consideration of all
      factors herein led to the conclusion that Mother did not establish
      her claims of sexual abuse by Father. As the question of
      whether or how Mother created these allegations is not required
      to make our custody determination, we respectfully submit that
      no abuse of discretion or error of law occurred therein.

Trial Court Order, 9/14/15, at 3.

      We agree with the trial court.         It was sufficient for the trial court to

determine that the allegations of sexual abuse against Father were false. It

was not necessary for the trial court to establish whether or why Mother

made those allegations. Mother’s third issue is without merit.

      In her fourth and final issue, Mother complains that the trial court

erred in finding that Ms. Munoz’s report supports a finding discrediting her

allegations of abuse. The trial court responded to Mother:

      In paragraph ten (10) of her Concise Statement[6], [Mother]
      appears to claim that Ms. Munoz had no basis for discrediting the
      abuse allegations of the minor [C]hildren. As previously stated,
      Ms. Munoz prepared very detailed custody evaluation reports.
      The [c]ourt found Ms. Munoz’s reports and opinions persuasive.
      The [C]hildren did not testify at trial. Based on all of the
      evidence presented, including Ms. Munoz’s reports and
      testimony, the [c]ourt concluded that Mother did not prove the
      allegations of sexual abuse by Father. The [c]ourt respectfully
      submits that the entire trial record supports our conclusion on
      this subject and that it did not commit any abuse of discretion or
      error of law.

Id., at 5.




6
   Mother’s concise statement contains fourteen allegations of error.            She
chose to present only four of them in her brief on appeal.


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      Ms. Munoz’s reports and opinions are not dispositive of the question of

whether Father abused R.B., but are simply one factor that the trial court

considered in reaching its conclusion. Our review of the record reveals that

it contains sufficient credible evidence to support a determination that Father

did not sexually abuse R.B.—a finding supported by every entity that

investigated the claims. Mother’s fourth issue is without merit.

      Accordingly, for the reasons stated, we affirm the order of the trial

court entered August 11, 2014.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/20/2015




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