J-S57002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     L.M.                                      :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                 v.                            :
                                               :
                                               :
     C. McG.                                   :   No. 1093 EDA 2018

                  Appeal from the Order Entered March 13, 2018
                  In the Court of Common Pleas of Bucks County
                 Domestic Relations at No(s): No. 2011-62920-C


BEFORE:        PANELLA, J., PLATT*, J., and STRASSBURGER**, J.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 28, 2018

        L.M.1 appeals from the March 13, 2018 order denying her “petition for

special relief to dispose of [her] outstanding request to relocate.” We affirm.

        We adopt the following factual and procedural history from the trial

court’s opinions, which are supported by the record. See Trial Court Opinion

(“TCO”), 1/23/18; TCO, 3/16/18; TCO, 6/20/18, at 2-6.

        C.McG., a transgender woman, and L.M., a cisgender woman, entered

into a romantic relationship in 2005. In April 2010, L.M. gave birth to twins,

E.M. and Lu.M. (collectively, “Children”), after being impregnated with

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

**   Retired Senior Judge assigned to the Superior Court.

1L.M. is referred to in the trial court’s memorandum opinion as L.B., her birth
name. As L.M.’s appeal was filed using the surname of her current wife, we
will refer to her in that manner.
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C.McG.’s banked sperm; both mothers are thus the biological parents of

Children.

      This matter was initiated in September 2011, following the parties’

separation. L.M. filed a petition for custody of Children. Following a hearing in

December 2011, the court entered a temporary order awarding the parties

shared custody of Children. The order memorialized the parties’ agreement to

undergo a private custody evaluation by Dr. Stephen R. Cohen, a psychologist.

In October 2012, Dr. Cohen submitted a seventy-five page custody evaluation

report, developed after extensive interviews of nineteen individuals, including

four interviews of the parties, and six psychological tests administered to L.M.

and C.McG.

      In February 2013, L.M. provided C.McG.with a notice of her proposed

relocation to Macungie, Pennsylvania. C.McG. filed a notice of opposition to

the relocation and in March 2013, L.M. filed a motion for an expedited custody

hearing. In April 2013, the court entered an order approving a stipulation

between the parties, providing for shared legal and physical custody of

Children in a fourteen-day alternating schedule, permitting L.M. to relocate to

Macungie, which is in Lehigh County, and agreeing that all custody exchanges

would occur at C.McG.’s residence in Bucks County, and that L.M. would

provide all transportation for custody exchanges. L.M. and C.McG. agreed to

undergo three co-parenting counseling sessions.

      In July 2013, L.M. filed a petition to modify the custody order, seeking

primary physical custody of Children because she wished to enroll them in fall

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preschool in Macungie and had difficulty transporting Children. On December

19, 2014, C.McG. filed a petition to modify custody, requesting Children reside

primarily with her in Bucks County to attend kindergarten in the New Hope-

Solebury school district, and opposed another proposed relocation by L.M.

from Macungie, Pennsylvania, to Watchung, New Jersey.

       In January 2015, L.M. filed an answer to C.McG.’s petition, proposing

Children reside primarily with her in Watchung, and argued that the move to

Watchung did not qualify as a relocation because it did not significantly impair

C.McG.’s ability to exercise her custodial rights. No order was entered on the

docket regarding the issue of relocation, but L.M. moved to Watchung, and

Children, when staying with L.M., also lived in Watchung.

       In July 2017, after a myriad of filings and fourteen custody hearings,2

the trial court read into the record an order in custody, providing that the

parties would share legal custody of Children, and that primary physical

custody would be with C.McG. during the school year, and partial physical

custody with L.M. on the first and third weekends of each month from Friday

at 5:00 p.m. to Sunday at 5:00 p.m. The physical custody would reverse in

the summer on the first Sunday after school ended. L.M. was to provide all

transportation. The custody order established additional provisions for

telephone calls, vacation, holidays, and activities.
____________________________________________


2Hearings were held April 27, 2015; July 6, 2015; October 22, 2015; October
23, 2015; January 7, 2016; May 9, 2016; May 10, 2016; July 21, 2016; July
22, 2016; October 11, 2016; December 23, 2016; January 31, 2017; July 24,
2017; and July 31, 2017.

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       L.M. filed a motion for reconsideration on August 9, 2017. L.M. timely

appealed the custody order to this Court, but, on October 10, 2017, her appeal

was quashed. This Court noted per curiam that the July order was not final

due to the fact that no order had been entered on the docket on a prior petition

to relocate and because a written custody order had not been entered onto

the docket.3 See No. 2806 EDA 2017, Order, 10/10/17, at 1. The trial court

entered a written custody order on September 21, 2017, memorializing the

order read in court on July 31, 2017.

       On November 6, 2017, C.McG. filed a petition for special relief, seeking

a finding of contempt and counsel fees against L.M. On November 8, 2017,

L.M. filed a complaint for a writ of mandamus in the Supreme Court of

Pennsylvania, requesting that the Court enter an order directing the trial court

to dispose of her “request to relocate.” The writ was subsequently denied

although L.M. was granted leave to file original process. See No. 176 MM

2017, Order, 12/11/17.           On November 10, 2017, L.M. filed a petition

requesting that the trial court recuse itself. On November 28, 2017, following

a hearing, the trial court denied L.M.’s request for recusal. L.M. filed a motion

for reconsideration, which the trial court later denied.




____________________________________________


3 With regard to the outstanding petition for relocation, it remained
outstanding because a motion had been filed, but no order disposing of it had
been entered on the docket. See, e.g., R.L.P. v. R.F.M., 110 A.3d 201, 206
(Pa. Super. 2015) (noting that custody orders must be entered as separate
written orders or as separate sections of written opinions).

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      L.M. filed a notice of appeal to this Court and accompanying statement

of errors complained of on appeal, specifically from the trial court’s order

entered November 28, 2017, which was the denial of L.M.’s request for the

trial court to recuse itself. On January 11, 2018, by per curiam order, this

Court quashed the appeal, as an order denying a motion to recuse is not a

final order, and because the petition for relocation remained outstanding. See

No. 73 EDA 2018, Order, 1/11/18.

      On February 1, 2018, the trial court held a hearing on C.McG.’s petition

for special relief filed in November 2017. At the conclusion of the hearing, the

trial court found L.M. in contempt of the July 31, 2017 custody order and had

her committed to Bucks County Correctional Facility for ten days, ordered her

to write a letter to the court explaining how she would abide by the order in

the future, and to pay counsel fees in the amount of $12,265.75. See N.T.,

2/1/18, at 83-98.

      On February 21, 2018, L.M. filed, in the trial court, a petition for special

relief to dispose of her outstanding request to relocate. On March 13, 2018,

the trial court issued a written order, entered on the docket, denying her

petition as moot, because there was no pending request to relocate. See

Order, 3/13/18, at 1.

      L.M. timely filed a notice of appeal and accompanying statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

Her appeal is now ripe for our review.




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     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).

     [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).

     With regard to the abuse of discretion standard,

     [a]lthough 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).

     “Our paramount concern in child custody cases is to determine the best

interests of the child.” In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016)


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(citations omitted). “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 well[-]being.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).

      The Child Custody Act sets forth the best interest factors that the trial

court must consider. See 23 Pa.C.S.A. § 5328(a)(1)-(16). See also J.R.M. v.

J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating trial courts are required

to consider “[a]ll of the factors listed in section 5328(a) . . . when entering a

custody order.”)

      In L.M.’s first issue, she claims that the trial court committed an error

of law and abuse of discretion in failing to analyze the relocation factors of 23

Pa.C.S.A. § 5337(h)(1)-(10) because, as she contends, her request to relocate

was still pending. See Appellant’s Brief, at 4-5, 15. L.M. acknowledges that

she was already living in New Jersey, and so the procedural requirements of

§ 5337 were not per se triggered; however, she argues that the relocation

factors should have been considered in the context of the custody proceeding

as Children traveled a significant distance. See id., at 15. We disagree.

      As noted, the relocation petition remained “open” because no written

order was entered on the docket. The court’s order of March 13, 2018, closed

the open motion by noting that the issue was moot, as L.M. had already moved

to Watchung, had been living there for the past several years, and had herself

averred that the move to Watchung was not actually a relocation. We see no


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

remaining relocation issues to determine.

      Next, L.M. claims that the trial court erred and abused its discretion in

its analysis of the sixteen custody factors of § 5328(a). She contends that the

court’s conclusions were unreasonable pursuant to the evidence of the record.

See Appellant’s Brief, at 25. Essentially, L.M. takes issue with certain

statements made by the trial court when analyzing the custody factors on the

record; L.M. characterizes these statements as unsupported by the record.

      The court entered its analysis of the custody factors as follows:

      We have to look at the factors mandated by the Supreme Court
      of Pennsylvania in any custody case, and we’ll do so. Which party
      is more likely to insure the health and safety of the child? The
      answer is obvious. They both are well-equipped, and have in the
      past and will in the future, insure the health and safety of both
      children.

      Which party is more likely to encourage and permit frequent and
      continuing contact between the child and the other party? In my
      view, any impediments to the relationship are mostly created by
      [L.M.], who can find nothing positive about anything that [C.McG.]
      can do. But I think on balance both parents are likely to permit
      continuing contact between each because they know that it’s good
      for the children.

      Is there any abuse committed? Absolutely none. There’s no risk
      of harm to any of these children. Can the parents perform parental
      duties on behalf of [Lu.M.] and [E.M.]? Of course. Is there
      extended family available? Yes, on both sides, and they are well-
      invested in your children.

      The next one I find to be especially important. Is there a need for
      stability and continuity in the child’s education and his family life
      and his community life? Yes. Where is that stability? Now and has
      been in New Hope. That’s where they grew up. That’s where
      they’ve been attached to. That’s where their roots remain.

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     Watchung only becomes an issue because [L.M.] decided to move
     there.

     Sibling relationships? They have each other. They have a
     biological sister here in New Hope. Is there a well-reasoned
     preference of the child? No, of course not, and we wouldn’t
     consider it because of their age and their lack of maturity. I’m
     sure they would be happy no matter what the circumstances.

     Has there been an attempt of one parent to turn the child against
     the other parent? No, not seriously. None that we can discern.
     Can [C.McG.] and [L.M.] maintain, on a consistent basis, a loving,
     nurturing and consistent relationship with the children?
     Absolutely. And at the same moment they are more than capable
     of attending to the daily, physical, emotional and developmental
     and educational needs of the children. Fortunately, there are no
     special needs.

     The proximity of the residences of the parties. It is the crucial
     issue for this [c]ourt. An hour ride, 40 miles. It’s not
     inconsequential. I think [L.M.] says to herself, I’ve chosen to live
     there. No matter what, let’s have the children make that trek. As
     the children get older, it’s not easier. Had you stayed in
     Doylestown and had you moved to the New Hope area, and had
     you even stayed in Macungie, the prior Order would have been
     appropriate, but it’s no longer appropriate.

     Are there abilities to make appropriate child-care arrangements?
     Yes, strongly. They each have their mother. What [L.M.] sees as
     a deficit is a plus. There is an au pair available to attend to the
     needs of the children so [C.McG.] can spend the amount of time
     that she should with them.

     Is there conflict between the parties? Yes, there always is in
     custody cases. Is this insurmountable? No. They don’t like each
     other. I get it. Is there an inability to cooperate? No. There’s an
     unwillingness to cooperate. Is there a history of drug or alcohol
     abuse? I haven’t heard anything about [L.M.] drinking to excess
     since, but if it’s on either side, it’s there. She’s the one who had
     the DUI. She’s the one who blacked out. She’s the one who had
     to go to the Caron Foundation. She’s the one who imbibed to
     excess.




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      The mental and physical condition of the parties. It is a neutral
      factor. They are both physically and mentally equipped to be able
      to deal with all the issues presented. There is no history of abuse
      in any fashion, parent to parent, parent to child.

      So these are the mandates I have to consider . . .

N.T., 7/31/17, at 111-115.

      L.M., in arguing that the trial court’s findings are not supported by the

record, raises a myriad of issues regarding the court’s findings of fact and

credibility determinations including, but not limited to, the court’s findings

related to where the children grew up and have the most stability, which

parent was responsible for impediments to the parties’ relationships, factual

findings regarding L.M.’s use of alcohol and DUI, and other issues. See

Appellant’s Brief, at 27-39.

      As we have observed, the trial court is required to consider all of the §

5328(a) factors in entering a custody order. While the court gives “weighted

consideration to those factors which affect the safety of the child” pursuant to

23 Pa.C.S.A. § 5328(a), we have acknowledged that “It is within the trial

court's purview as the finder of fact to determine which factors are most

salient and critical in each particular case.” M.J.M. v. M.L.G., 63 A.3d 331,

339 (Pa. Super. 2013) (citation omitted). Put simply, the amount of weight a

court gives any one factor is almost entirely discretionary.

      Essentially, L.M. disputes the trial court’s findings of fact, determinations

of credibility, and the weight given to the voluminous evidence introduced at

fourteen hearings. She questions the court’s conclusions, inviting us to re-find

facts, re-weigh evidence, and re-assess the credibility of witnesses. This we

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cannot do. We do not disturb the trial court’s findings of fact and

determinations regarding the credibility and weight of the evidence absent an

abuse of discretion, which we do not find in this case.

      Next, L.M. argues that the trial court committed an abuse of discretion

and an error of law in relying on a custody evaluation made five years earlier,

and not ordering a new evaluation. See Appellant’s Brief, at 40. She contends

that the trial court’s emphasis on the evaluation’s thoroughness, and the

weight put upon it, was inappropriate given the fact that there had been no

update or supplement made within six months to one year. See id., at 40-41.

      In support of this argument, L.M.—impermissibly—cites to a single

unpublished decision of this Court, in a child support case, observing in dicta

that the trial court had not placed much weight upon a custody evaluation

performed three years prior to the master’s hearing. See Appellant’s Brief at

4 (citing Carter v. Carter, No. 3817 EDA 2016 (Pa. Super., filed 11/30/17)

(unpublished memorandum)). L.M. has cited no case law or any legal authority

to support her claim, nor developed her argument beyond two paragraphs.

Accordingly, we find that L.M. has waived this claim. See In re Estate of

Whitley, 50 A.3d 203, 209-210 (Pa. Super. 2012) (noting that failure to cite

to relevant legal authority constitutes waiver of the claim on appeal).

      L.M. combines her next three issues into one. She contends that she

was prejudiced by a direct conflict of interest; that her counsel was ineffective;

and that the trial court did not respond to the harassment and intimidation of

her witnesses by C.McG.’s counsel. See Appellant’s Brief, at 42.

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        With regard to the conflict of interest, L.M. avers that she was prejudiced

by the fact that one of her prior five attorneys, Melanie Wender, Esquire, who

represented her from December 2014 to October 2015, joined the law firm of

counsel for C.McG., and Attorney Wender had not given L.M. notice of the

potential conflict.4 See id. L.M. cites generally to two rules of professional

conduct to support her argument, but does not cite to case law to further

develop her argument regarding a conflict of interest or the prejudice caused

thereby.

        With regard to her claim of ineffective assistance, L.M. does not

elaborate which of her five attorneys counseled her ineffectively, or provide

authority to support the application of a standard applied to the representation

of attorneys in criminal matters to a regular custody matter.

        With regard to the alleged harassment by counsel, L.M. states that

counsel for C.McG. followed L.M. and her wife into the hallway and said, “you

better watch yourself,” called L.M. a liar on the witness stand, and

impermissibly interacted with unnamed witnesses of L.M.’s while they were

under oath. See id., at 42. L.M. does not cite to any authority to support this

argument, or indeed, develop any argument beyond this bald statement of

fact.


____________________________________________


4L.M. also references a disciplinary board complaint filed in this matter. See
Appellant’s Brief, at 43. However, because the complaint is not a part of the
certified record, we may not consider it on appeal. See Brandon v. Ryder
Truck Rental, Inc., 34 A.3d 104, 106 n.1 (Pa. Super. 2011).

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       Here, L.M.’s failure to develop her arguments, cite to pertinent portions

of the record to support her claims, or provide legal authority to support her

averments, precludes us from review of her issues, and results in the waiver

of her claims. See Estate of Whitley, 50 A.3d at 209-210.

       Finally, L.M. combines her last two issues to argue that the trial court’s

conclusions were manifestly unreasonable and the product of partiality and

bias. Although L.M. identifies comments made by the trial court that she

contends show its bias, she does not cite to the pertinent place in the record

where either these remarks or objections to the same may be found. 5 Again,

L.M. impermissibly cites to a single, unpublished case to define, generally, an

abuse of discretion. See Appellant’s Brief, at 44. L.M. cites no case law

regarding bias, recusal, or other relevant legal authority. Accordingly, she has

waived this claim. See Estate of Whitley, 50 A.3d at 209-210.

       Order affirmed.




____________________________________________


5 While all appellants are required to make appropriate references to the
record, see Pa.R.A.P. 2119(c), this lack is particularly egregious considering
the voluminous nature of the notes of testimony. Cf. Philips v. Selig, 959
A.2d 420, 428 (Pa. Super. 2008) (declining to find waiver where failure to
comply with appellate rules has not impeded our ability to review the issues).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2018




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