J-S26044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    R.S.                                            :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                  v.                                :
                                                    :
                                                    :
    J.M.                                            :
                                                    :
                        Appellant                   :   No. 126 WDA 2020

              Appeal from the Order Entered December 19, 2019
    In the Court of Common Pleas of McKean County Civil Division at No(s):
                             No. 501 C.D. 2018


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                  FILED JULY 06, 2020

           J.M. (Mother) appeals from the December 19, 2019 final custody order

entered in the Court of Common Pleas of McKean County (trial court) awarding

R.S. (Father) primary physical custody of their 13-year-old daughter. Because

the trial court based its decision in part on its unrecorded interviews with the

daughter, we vacate and remand.

                                               I.

           The parties married in 1995 and had two daughters, T.S. (born in

February 1997) and A.S. (born in December 2006) (Child).               In November

2011, Father filed for divorce in Elk County and requested partial custody of

the parties’ daughters. At the time, both daughters were living with Mother


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*   Retired Senior Judge assigned to the Superior Court.
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in the marital home. Tragically, while the divorce was pending in 2012, T.S.

died in an accident at age 15. After her death, the parties eventually reached

a custody agreement of Child in October 2013, with Mother keeping primary

physical custody while Father received partial custody. In 2015, Father filed

a petition for modification.   Around the same time, Mother moved with Child

to neighboring McKean County. In February 2016, the parties reached a new

agreement in which Mother retained primary physical custody while Father

received custody two weeknights per week plus every other weekend. After

the parties finally divorced in May 2016, there were no further developments

for almost two years until March 2018, when the parties agreed to transfer

venue to McKean County.

      The dispute in this appeal began on June 15, 2018. On that date, Father

filed a petition for special relief requesting make-up time with Child because

of conflicts with his schedule. The trial court treated the petition as seeking

modification and, after mediation failed, scheduled a trial. At the contentious

November 29, 2018 custody trial, Father presented evidence that Child had a

strained relationship with Mother and was unhappy living with her. Mother

strongly disputed these claims and portrayed Child as having a great

relationship with Mother. After all witnesses testified, the trial court conducted

an off-the-record interview of Child with counsel present. The next day, the

trial court ordered a mental health evaluation of Child and entered an interim

custody order increasing Father’s weekends to three a month.


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      The case then stalled because of difficulty finding a mental health

evaluator. When the evaluation was finally completed, the parties reconvened

for an August 14, 2019 status conference at which the trial court expressed

that it found the evaluation unhelpful. At Mother’s request, the trial court

conducted another off-the-record interview of Child at the conference.         As

later recounted in the trial court’s Rule 1925(a) opinion, Child expressed that

she wished to live with Father because of Mother’s disparaging treatment of

her. Trial Court Opinion (T.C.O.), 2/11/20, at 7. A week later, on August 21,

2019, Father alleged in an emergency petition for custody that Mother berated

Child after the conference because of what she told the court. Mother disputed

this claim in her reply, averring that Child told her that she hated staying with

Father.   Understandably, based on these conflicting claims, the trial court

appointed a guardian ad litem (GAL) to represent Child and scheduled a

hearing on the emergency petition for September 3, 2019.

      At that hearing, the trial court held an on-the-record discussion with

both parties and their counsel rather than receive evidence about what

happened after the status conference. Also present was the GAL, who relayed

that Child told her that she wanted to live with Father.          Though Mother

contested   Father’s   allegations,   both   parties   agreed   with   the   GAL’s

recommendation that Child receive counseling.          The trial court agreed and

ordered the GAL to find a therapist and have Child begin counseling before




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the next hearing.1 After Child began counseling, the parties met for another

hearing on December 2, 2019. Child’s therapist testified that Child told him

that she wanted to live with Father instead of Mother. Child also apparently

told the trial court the same thing in an in camera interview. Like the prior

two times, the interview was done without a court reporter.

       On December 19, 2019, the trial court entered an order awarding Father

primary physical custody of Child while Mother received two weeknights per

week plus every other weekend. In its accompanying opinion, the trial court

analyzed the sixteen-factor best-interest test under 23 Pa.C.S. § 5328(a) and,

because Child would be moving back to Elk County, the ten relocation factors

under 23 Pa.C.S. § 5337(h). While finding the majority of the best-interest

factors as weighing on neither side, the trial court gave an extended discussion

of the seventh factor concerning the preference of Child:

       The Court spoke with the Child. She is somewhat immature for
       her age. She genuinely loves both of her parents and wants to
       spend time with each of them. She wants them to get along. She
       and her Mother’s personalities are vastly different and this has
       caused conflict in their relationship. Child’s aspirations and
       Mother’s expectations for her differ.         Mother needs to be
       supportive of daughter and not judgmental of her performance
       whether it be on the athletic field, at school, in the home or in the
       community. Mother’s parenting style is authoritarian. She admits
       to being overly protective of Child. Father’s parenting style is
       permissive. He is more likely to allow Child to do what she wishes.
       Mother on the other hand makes demands of Child that Child does
       not always find to be justified or reasonable. Father indulges
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1 The trial court also increased Father’s custody of Child on weekends to
include Sunday overnights.


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        Child. Father must be supportive of Mother’s reasonable decisions
        regarding Child’s permitted activities and behaviors. Child has
        recently expressed to the Court and to her counselor, Mr. Owens,
        a wish to live with her Father. Child’s stated reason is that she
        and her Mother do not get along and that she wants to avoid
        further arguments with her. The Court believes this wish is more
        basic - Mother won’t allow her to be a teenager (Mother will be
        unduly restrictive) and Father will allow her greater freedoms. If
        the Court is correct in this assessment Father must be less a friend
        and more a parent to Child. The Court will give the Child’s
        comments the weight the Court deems appropriate.

Opinion and Order, 12/2/19, at 9-10 (unpaginated).

        In the trial court’s view, the parties had placed Child at the center of

their own disputes, and Child was attempting to please both of them by telling

them what she thought they wanted to hear about the other parent. The trial

court, therefore, concluded that changing primary physical custody would

reset the relationships between everyone for the better. Id. at 12.

        Mother timely appealed2 and concurrently filed her Rule 1925(b)

statement.     Though not specifically claiming that the trial court erred in

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2   Our scope and standard of review of child custody orders are settled:

        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



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interviewing Child without a court reporter, Mother did allege that the trial

court erred by relying on non-record evidence in changing primary custody to

Father. While finding none of Mother’s claims as individually warranting relief,

the trial court nonetheless recommended in its Rule 1925(a) opinion that we

vacate its final custody order and remand for further proceedings, predicting

that “it is inevitable that because of the irregularities with some of the

evidence one or the other of the parties will file a Petition for Modification of

Custody at his or her first opportunity.” T.C.O. at 3.

       Relevant to our decision below, the trial court summarized more of its

off-the-record interviews with Child in discussing its analysis of the best-

interest and relocation factors.

       Child’s reasons for wanting to live with Plaintiff/Father included
       Child’s desire to avoid conflict with Defendant/Mother, to spend
       more time with her half-sisters and to be able to pursue her
       passion for horseback riding, an activity that Defendant/Mother
       has not supported. The Court concedes that it did not put all of
       Child’s reasons in its opinion. Child’s desire to reduce conflict
       about which there is a considerable amount of evidence is reason
       enough to change primary custody as Child’s emotional well-being
       is a factor that is to be afforded great weight. Defendant/Mother
       often berated [C]hild to the detriment of Child’s self-esteem and
       well[-]being. Child has kept a diary that paints a very harsh
       picture of Defendant/Mother. And, it is evident to the Court from
       its several meetings with Child that she and her Defendant/Mother
       are often at odds with each other. Repeatedly berating one’s child
       is not acceptable conduct.        Defendant/Mother’s conduct has
____________________________________________


       court only if they involve an error of law, or are unreasonable in
       light of the sustainable findings of the trial court.

S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).


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       caused friction in her and Child’s relationship and has caused Child
       emotional distress.

Id. at 23-24.

                                               II.

       Mother argues that the trial court, in giving Father primary custody,

repeatedly relied on statements that were made by Child during interviews

with the trial court. However, as Mother observes, because none of these

interviews were recorded or transcribed by a court reporter, this Court is now

faced with having to assess the trial court’s custody determination based on

facts that are outside of the record. Mother’s Brief at 53-54, 56. We agree.3

       Pennsylvania Rule of Civil Procedure 1915.11 governs the interview of a

child involved in a custody matter. Under that rule, an interview of the child

is discretionary and not mandatory. T.D. v. E.D., 194 A.3d 1119, 1125 (Pa.

Super. 2018). However, when such an interview occurs, our Supreme Court

is clear about how it is to be conducted.

       Rule 1915.11. Appointment of Attorney for Child. Interview of
       Child. Attendance of Child at Hearing or Conference

                                           ...

             (b) The court may interview a child, whether or not the child
       is the subject of the action, in open court or in chambers. The
       interview shall be conducted in the presence of the attorneys and,
       if permitted by the court, the parties. The attorneys shall have


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3In his brief, Father addresses neither the off-the-record interviews with Child
nor the trial court’s recommendation that we vacate its final custody order.


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      the right to interview the child under the supervision of the court.
      The interview shall be part of the record.

Pa.R.C.P. 1915.11(b) (emphasis added).

      Before the adoption of Rule 1915.11, this Court held that it was non-

waivable reversible error for a trial court to base its custody decision on an

unrecorded interview with the child, finding that the failure to transcribe the

interview precludes adequate appellate review.           Commonwealth ex rel.

Scott v. Rider, 375 A.2d 149, 151 (Pa. Super. 1977); Gunter v. Gunter,

361 A.2d 307, 310-12 (Pa. Super. 1976) (holding trial court improperly relied

on untranscribed statement of child).

      We reaffirmed this holding after the adoption of Rule 1915.11 in Ottolini

v. Barrett, 954 A.2d 610 (Pa. Super. 2008). There, the father challenged a

trial court’s failure to make a record of its interview with his children. The trial

court admitted that it did not create a record of its interview, but explained

that it did so in order to preserve the confidentiality of the children’s testimony

and protect against recriminations from the parents.          Id. at 612-613. On

appeal,   we   held   that   the   trial   court’s   well-intentioned   concern   for

confidentiality did not overcome our Supreme Court’s clear mandate in Rule

1915.11 that any interview with a child must be made part of the record. Id.

at 613. We further observed that it was clear the trial court relied, at least in

part, on the unrecorded interviews. Id. Accordingly, because the interview

with the children was not part of the record, the record was incomplete and




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prevented the panel from assessing whether the trial court properly weighed

the evidence. Id. at 615.4

       Turning to this case, all of the interviews with Child were held without a

court reporter, including the final December 2, 2019 interview when she

apparently expressed that she wanted to live with Father. N.T., 12/2/19, at

34. Additionally, as quoted at length above, the trial court relied on Child’s

statement in its consideration of Child’s preference under 23 Pa.C.S.

§ 5323(a)(7). The same is true in the above-quoted passage from the trial

court’s Rule 1925(a) opinion in which the court credits Father’s factual

contentions that Mother often berated Child and caused her emotional

distress.

       As evidenced by these passages, the trial court relied heavily on Child’s

interviews in resolving the factual disputes at the center of the parties’

dispute. Indeed, at the time it rendered its final custody decision, it had been

over a year since the November 2018 custody trial. After that trial, the only

record evidence received by the trial court was from the therapist at the

December 2, 2019 hearing that, in any event, the trial court later admitted



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4 The Ottolini panel also held that the trial court erred in relying on the
opinions in an expert report that was never admitted in violation of Pa.R.C.P.
1915.8(a). Ottolini, 954 A.2d at 613-615. In so finding, however, the panel
clarified that the trial court’s error in failing to record the interview with the
children was sufficient to vacate the trial court’s order, and that it was
addressing the failure to admit the expert’s report given that the case would
be remanded. Id. at 613.

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was afforded little weight. T.C.O. at 24. As a result, it is evident that Child’s

testimony was the main basis for the trial court’s factual findings and,

ultimately, its awarding Father primary physical custody. This case, therefore,

differs from those instances when we have excused a trial court’s failure to

record its interview with a child because there was substantial creditable

record evidence outside of the child’s testimony to support the factual findings.

See, e.g., N.H.M. v. P.O.T., 947 A.2d 1268, 1273-76 (Pa. Super. 2018) (trial

court’s factual finding that children were sexually assaulted was supported by

record evidence outside of its in camera unrecorded interviews with the

children).

      By failing to interview Child with a court reporter present, we are

hindered in being able to fulfill our duty under our broad scope of review.

Under our standard of review, while we must accept the factual findings of a

trial court in a custody matter, we are only bound to do so if they “are

supported by competent evidence of record.” S.T., supra. Here, because the

trial court’s factual findings and inferences hinge on non-record testimony

taken in violation of the clear language of Rule 1915.11(b), as well as our

holding in Ottolini, our ability to conduct meaningful appellate review of the

trial court’s determination is severely hampered. Consequently, we vacate

the trial court’s final custody order.

      Accordingly, we remand the matter to the trial court to interview Child

again in accordance with Rule 1915.11(b) and issue a new decision within 45


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days of the date of this Memorandum. To satisfy the interests of finality and

stability in custody arrangements for this child, we order that the current

custody arrangements be retained pending the outcome of a new decision.

     Order vacated; case remanded for proceedings consistent with this

Memorandum.

     Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2020




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