J-S66016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.L.,                                   :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellee        :
                                        :
             v.                         :
                                        :
S.L.,                                   :
                                        :
                        Appellant       :     No. 768 MDA 2014


                  Appeal from the Order Entered April 1, 2014,
             In the Court of Common Pleas of Lackawanna County,
                     Civil Division, at No. 07-FC0-040839.


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED NOVEMBER 24, 2014

        S.L. (“Father”) appeals pro se from the April 1, 2014 order, which,

inter alia, denied his petition for reconsideration of the January 24, 2014

custody order of the Lackawanna County Court of Common Pleas.           We

affirm.

        Father and L.L. (“Mother”) had two sons:   M.L., born in March 1996

and T.L., born in June 1998 (collectively, “the Children”). The January 24,

2014 order found Father in contempt of the trial court’s October 10, 2013

custody order and awarded Mother sole legal custody of the Children

pursuant to a provision in the October 10, 2013 order.       In addition to

denying Father’s reconsideration petition, the April 1, 2014 order also

provided that T.L. “shall not be prohibited from seeking mental health
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treatment as he is permitted under 35 P.S. § 10101.1; however, due to

concerns of alienation and undue influence[, T.L.] shall only seek [mental

health] treatment during [M]other’s periods of physical custody,” as the

January 24, 2014 order gave Mother sole legal custody of T.L.1 The April 1,

2014 order also denied Father’s “Petition to Recuse Guardian [ad litem]”

(“GAL”).

      The trial court set forth the factual background and procedural history

of this appeal as follows:

             This case involves a high-conflict custody dispute over the
      parties’ two (2) sons: M.L., date of birth March . . . 1996, and
      T.L., date of birth June . . . 1998. The matter is before the Court
      on Father’s Petition for Reconsideration of this Court’s Order
      dated January 24, 2014 and Father’s Petition to Recuse the
      Guardian ad Litem, both filed February 18, 2014. A review of
      the file in this matter clearly evidences a long history of conflict
      dating back to the initial Custody Conciliation Conference on
      September 9, 2008.

             This case dates back to July 6, 2007, when L.L. (“Mother”)
      filed a Complaint in Divorce against S.L. (“Father”).2 The parties
      attended a Conciliation Conference on September 9, 2008,
      where it appears from the record that the parties originally
      agreed to resolve their issues through mediation, which was
      reflected in this trial Court’s September 10, 2009 Order. That
      same day an Order was issued whereby Danielle Ross, Esq. was
      appointed as Guardian ad Litem (“GAL”) for the minor children.3
      The parties have enjoyed joint legal custody from the beginning
      of the case.


1
   The trial court noted that M.L. attained the age of eighteen between the
issuances of the January 24, 2014 order and the April 1, 2014 order. Trial
Court Opinion, 8/6/14, at 1 n.1. Thus, in the April 1, 2014 order, the trial
court ruled that Father’s petition for reconsideration was moot as to M.L.
Therefore, we will confine our discussion in this matter to T.L.

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           2
            As of the writing of this Opinion, a Divorce Decree
           has not been entered.
           3
             The record indicates that identical Orders to the
           two (2) Orders entered on September 10, 2009,
           regarding mediation and the appointment of the
           GAL, were entered on October 17, 2009.

           On January 30, 2009, the GAL filed a report indicating that
     the parties had agreed to attend parental coordination sessions
     with Ann Marie Termini, a family court therapist. An Order was
     issued on February 9, 2009 requiring the parties to attend the
     above-mentioned sessions. Unfortunately, the parties never
     completed the parental coordination sessions because the parties
     were unsuccessfully discharged from the program.            (H.T.
     01/22/2014 at 48).

           The file is replete with various petitions filed by the parties
     and memoranda filed by the GALs.4 The GAL memorand[a] filed
     in this matter discuss the many occasions where parties have
     met with the GAL to resolve a wide array of issues. The GAL
     indicates that at least one of these sessions lasted two and a half
     hours. (05/16/2012 GAL Memo). A GAL memorandum filed on
     September 9, 2009 indicates that legal custody was an issue
     from the onset of this case. The GAL commented in her January
     4, 2014 memorandum as to her doubt that “. . . Mother and
     Father will ever come to their own agreement and finality/
     closure is needed in this case.”
           4
             The initial GAL, Danielle Ross, was replaced by
           Bonni Shelp, Esq., due to Ms. Ross’s departure.

           The instant petitions source back to this trial Court’s Order
     dated October 10, 2013. Before the Court at that time were
     Mother’s Petition for Review in Custody dated May 23, 2013,
     Father’s Counter Petition dated July 9, 2013, and Father’s Motion
     for Appointment of Counsel dated September 27, 2013. Upon
     consideration of the aforementioned custody petitions and
     motions, this Court ordered, inter alia, that:




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            “[Father] is precluded from unilaterally changing
            medical and/or mental health providers for the minor
            children without the consent of [Mother]. If it is
            found by the Court that [Father] has violated the
            provisions of legal custody in the future, [Mother]
            will be awarded sole legal custody of the minor
            children.” (10/10/2013 Order).

             On December 10, 2013, Mother filed a Petition for
      Contempt, alleging that Father violated the provisions of legal
      custody, namely changing healthcare providers for the minor
      children without consulting Mother. Mother’s petition specifically
      reference[d] the October 10, 2013 Order and requested that the
      Court “Award [Mother], Sole Legal custody of the minor children,
      M.L. and T.L.” (12/10/2013 Contempt Pet.). Father filed an
      Answer on January 15, 2014, and a hearing commenced on
      January 2[2], 2014.       This Court found that Father was in
      Contempt of the October 10, 2013 Order. Consequently, this
      Court issued the January 24, 2014 Order that granted Mother
      sole legal custody of the minor children.

            On February 18, 2014, Father filed the petitions that are
      currently before the Court, namely the Petition for
      Reconsideration of the January 24, 2014 Order and the Petition
      to Recuse Guardian.

Trial Court Opinion, 8/6/14, at 1–3.

      The trial court held a hearing on the petitions on April 1, 2014,

following which it refused to grant reconsideration of the January 24, 2014

order with regard to T.L. N.T., 4/1/14, at 7. At the April 1, 2014 hearing,

Father’s counsel averred that he wished to present the testimony of Joanne

Judge, a counselor Father had utilized for T.L. prior to the January 24, 2014

order.   Id. at 26.   Father’s counsel also wanted to question the GAL, Ms.

Shelp, as on cross-examination, about her awareness of T.L.’s treatment




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sessions with Ms. Judge and further suggested that the GAL should be

recused from the case. Id. at 26–29. The trial court refused the testimony

of the counselor and the GAL on the basis that the matter had previously

been litigated and had resulted in the January 24, 2014 order that precluded

the counselor from treating T.L. against Mother’s wishes. Id. at 29–32.

      As noted, on April 1, 2014, the trial court denied Father’s petition for

reconsideration of the January 24, 2014 order that found Father in contempt

of the trial court’s October 10, 2013 custody order, and awarded Mother sole

legal custody of the Children. Order, 4/1/14. The April 1, 2014 order also

provided that T.L. shall seek mental health treatment only during Mother’s

periods of physical custody. Additionally, the April 1, 2014 order also denied

Father’s petition to remove the GAL.

      On May 1, 2014, Father filed a notice of appeal but failed to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). The trial court did not thereafter order Father to file

the concise statement; therefore, this Court entered an order on June 17,

2014, affording Father until June 27, 2014, to file a concise statement.

Father timely complied.2



2
   See In re K.T.E.L, 983 A.2d 745, 747 (Pa. Super. 2009) (holding that the
failure to file a concise statement of errors complained of on appeal with the
notice of appeal will result in a defective notice of appeal, to be disposed of
on a case-by-case basis). Cf. J.M.R. v. J.M., 1 A.3d 902, 907 (Pa. Super.
2010) (stating that an appellant’s failure to comply with an order from this

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      Father raises the following four issues in this appeal:

      1. Did the trial court err as a matter of law and abuse its
      discretion by failing to consider the 16 enumerated factors in 23
      Pa.C.S.A. § 5328(a), when it modified the Father’s custody
      without the benefit of conducting a custody hearing[?]

      2. Did the trial court [err] as a matter of law and abuse its
      discretion by denying the Father his due process rights by
      modifying the Father’s legal custody without a petition for
      modification?

      3. Did the trial court err as a matter of law and abuse its
      discretion in not allowing oral arguments to take place or allow
      for facts to be presented by the Father to remove the Guardian
      ad Litem?

      4. Did the trial court err as a matter of law and abuse its
      discretion by finding the Father to be in contempt of the trial
      court’s order of January 24, 2014?

Father’s Brief at v.

      Initially, we observe that the Child Custody Act, 23 Pa.C.S. §§ 5321–

5340 (“Act”), is applicable because the hearing in this matter was held in

January 2014. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012)

(holding that if the custody evidentiary proceeding commences on or after

the effective date of the Act, i.e., January 24, 2011, the provisions of the Act

apply).

      In custody cases, 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


Court to file a concise statement will result in waiver of the issues on
appeal).

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     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.

Id. at 443 (citation omitted). We have stated:

     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)).

     In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

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.

Id. at 18–19 (quotation and citations omitted).


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      With any custody case decided under the Act, the paramount concern

is the best interests of the child. 23 Pa.C.S. §§ 5328, 5338. Section 5338

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

order if it serves the best interests of the child. The Act also sets forth the

best interest factors that the trial court must consider.       23 Pa.C.S.   23

Pa.C.S. § 5328(a); E.D. v. M.P., 33 A.3d 73, 80–81 n.2 (Pa. Super. 2011)

(listing factors to consider when awarding custody). Upon consideration of

the section 5328(a) factors, section 5323 of the Act provides for the

following types of awards:

      § 5323. Award of custody

      (a) Types of       award.—After considering the factors set forth in
      section 5328        (relating to factors to consider when awarding
      custody), the       court may award any of the following types of
      custody if it is   in the best interest of the child:

            (1) Shared physical custody.

            (2) Primary physical custody.

            (3) Partial physical custody.

            (4) Sole physical custody.

            (5) Supervised physical custody.

            (6) Shared legal custody.

            (7) Sole legal custody.

23 Pa.C.S. § 5323(a).




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      In her responsive brief, Mother points out that Father filed his appeal

from the April 1, 2014 order denying reconsideration of the underlying

January 24, 2014 order, and asserts that his appeal is untimely with respect

to the January 24, 2014 order. Mother’s Brief at 3–4, 7–8. Mother contends

that Father is attempting to bootstrap an appeal of the January 24, 2014

order by appealing the April 1, 2014 order. Indeed, our review of Father’s

concise statement and brief reveals that Father is seeking to challenge the

January 24, 2014 order in this appeal from the April 1, 2014 order denying

reconsideration of the January 24, 2014 order.

      We find guidance in Valley Forge Center Assocs. v. Rib-It/K.P.,

693 A.2d 242 (Pa. Super. 1997).        Therein, this Court explained that the

mere filing of a motion for reconsideration is insufficient to toll the thirty-day

appeal period. Id. at 245. The appeal period may be tolled, however, if the

trial court expressly grants reconsideration. Id.

      This Court recently reiterated this well-settled precept that a motion

for reconsideration, unless expressly granted within the thirty-day appeal

period, does not toll the time period for taking an appeal from a final,

appealable order. In Gardner v. Consolidated Rail Corp, 100 A.3d 280,

283 (Pa. Super. 2014), we stated that the “mere filing of a motion for

reconsideration . . . is insufficient to toll the appeal period.” The Gardner

Court, referencing Valley Forge, reaffirmed that “the 30–day appeal period




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is tolled only by a timely order ‘expressly granting’ reconsideration” of the

final appealable order. Gardner, 100 A.3d at 283 (citing Valley Forge, 693

A.2d at 245).

      Here, the trial court did not grant reconsideration of the January 24,

2014 order. Thus, we lack jurisdiction to consider Father’s first, second, and

fourth issues because they relate exclusively to the January 24, 2014 order,

and this appeal is untimely with regard to that order.     Valley Forge, 693

A.2d at 245–246.

      The only issue before us is Father’s third issue challenging the trial

court’s denial of his petition to remove the GAL without holding a hearing on

the petition.   Father claims that the trial court failed to afford him due

process by refusing to convene an evidentiary hearing regarding his removal

petition. He cites the First Amendment to the United States Constitution.

      The First Amendment to the United States Constitution provides as

follows:

      Congress shall make no law respecting an establishment of
      religion, or prohibiting the free exercise thereof; or abridging the
      freedom of speech, or of the press; or the right of the people
      peaceably to assemble, and to petition the Government for a
      redress of grievances.

U.S. CONST. amend. I.

      Father’s claim is premised upon his contention that the trial court

“erred and abused its discretion” when it failed to hold a hearing on his




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“concerns.” Father’s Brief at xv. In support, Father maintains that the First

Amendment guarantees the rights of the people to “petition the government

for redress of grievances.” Id. Father’s reliance on the First Amendment is

misplaced. The present case does not involve Congress making a law that

prohibits or abridges the right of the people to petition the Government for a

redress of grievance. Thus, Father’s reliance on the First Amendment right

to petition is not appropriate in this case.

      In the summary of his argument, Father further asserts that the trial

court denied him due process in failing to conduct an evidentiary hearing on

his petition to remove the GAL. Father’s Brief at viii. Father also claims that

the trial court denied his children due process when it denied them an

opportunity to be heard, because the GAL failed to inform the court of T.L.’s

wishes.   Id. at xv.    Essentially, Father is dissatisfied with the GAL, and

sought an evidentiary hearing to air his complaints about the GAL and have

the GAL removed.

      Father fails to support his argument with any relevant case law or

discussion of the Pennsylvania Rules of Civil Procedure to establish his right

to an evidentiary hearing on his petition.        We have stated, “Appellate

arguments which fail to adhere to these rules may be considered waived,

and   arguments    which    are   not   appropriately   developed   are   waived.

Arguments not appropriately developed include those where the party has




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failed to cite any authority in support of a contention.” Lackner v. Glosser,

892 A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted). See also In re

W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (“[W]here an appellate brief

fails to provide any discussion of a claim with citation to relevant authority

or fails to develop the issue in any other meaningful fashion capable of

review, that claim is waived.”). Thus, we conclude that Father’s third issue

is waived for failure to provide any discussion of a claim with citation to

relevant authority and failure to develop the issue in any other meaningful

fashion capable of review.

      Even if not waived, we would affirm the issue on the basis of the trial

court’s discussion of Pa.R.C.P. 1915.11-2 in its opinion.     Rule 1915.11-2

provides as follows:

      Rule 1915.11-2. Appointment of Guardian Ad Litem

      (a) The court may, on its own motion or the motion of a party,
      appoint a guardian ad litem to represent the best interests of the
      child in a custody action. The guardian ad litem shall be a
      licensed attorney or licensed mental health professional. The
      guardian ad litem shall not act as the child’s counsel or represent
      the child’s legal interests. Prior to appointing a guardian ad
      litem, the court shall make a finding that the appointment is
      necessary to assist the court in determining the best interests of
      the child.

      (b) The court may order either or both parties to pay all or part
      of the costs of appointing a guardian ad litem.

      (c) The guardian ad litem shall file of record and provide copies
      of any reports prepared by the guardian ad litem to each party
      and the court not later than 20 days prior to trial.         The


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     admissibility of the report shall be determined at the hearing.
     Prior to disclosure to the parties of confidential information
     prohibited by 23 Pa.C.S. § 6336, the court shall make a
     determination of whether the information may be disclosed. The
     guardian ad litem shall attend all proceedings and be prepared to
     testify.   The guardian ad litem shall be subject to cross-
     examination if called to testify by either party or the court.

     (d) The order appointing a guardian ad litem shall be in
     substantially the form set forth in Rule 1915.21.

Pa.R.C.P. 1915.11-2.

     The trial court explained its decision to deny Father’s petition to

remove the GAL as follows:

            The court may, on its own motion or the motion of a party,
     appoint a guardian ad litem to represent the best interests of the
     child in a custody action. Pa.R.C.P. No. 1915.11-2. It is well-
     established that the appointment of a GAL is appropriate in high-
     conflict custody cases. The reason for this is that due to the
     high-conflict between the parties there is a concern that one or
     both of the parties may take actions that are not in the best
     interest of the child. Appointing a GAL in a high-conflict custody
     case ensures that there is always a party representing the best
     interests of the minor child or children.

            As evidenced by the record . . . , this case can certainly be
     considered a high-conflict custody dispute that, by its nature,
     necessitates the appointment of a GAL to represent the best
     interest of the minor child. Due to the conflict between these
     parties and their motivation to undermine one another, the Court
     believes that removing the GAL would leave open the possibility
     that no party would be representing the best interests of T.L.
     Pursuant to the practice of appointing GALs in cases of high
     conflict, and based upon the parties’ inability to cooperate, this
     case demands the appointment of a GAL.

           The Court considered Father’s Petition to Recuse Guardian
     and Mother’s Answer thereto. The Court also considered the
     proffered testimony that was to be offered in support of Father’s


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       petition. Based upon the uncontroverted proffered testimony[,]
       the Court determined that recusal of the GAL was not warranted.
       The Court was not satisfied that there was any evidence that the
       GAL exhibited a bias towards Mother. Moreover, this appears to
       be a pattern for Father. He filed a similar petition on February
       29, 2012, and subsequently made an oral motion for removal of
       the GAL as is evidenced by this Court’s March 11, 2013 Order.
       As seems to be the common thread in this case, when the Court
       rules in a manner which Father disagrees, he attempts to
       manipulate matters until he gets his desired outcome.

Trial Court Opinion, 8/6/14, at 17–18.

       The record in this matter supports the trial court’s determination that

Father, as the party seeking the removal of the GAL, failed to satisfy his

burden to establish bias, prejudice, or unfairness that raises a substantial

doubt as to the GAL’s ability to serve impartially. Thus, we would conclude

that the trial court did not abuse its discretion in refusing to remove the

GAL.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2014




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