J-A12011-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.E.L.,                                               IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellant

                        v.

S.L.,

                             Appellee                      No. 1171 MDA 2014


                   Appeal from the Order Entered June 20, 2014
                 In the Court of Common Pleas of Luzerne County
                        Civil Division at No(s): 2007-01093


BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                                    FILED JUNE 04, 2015

        J.E.L. (“Father”) appeals pro se from the June 20, 2014 order denying

his petition for modification of a previous custody order that awarded S.L.

(“Mother”) primary physical custody of the parties’ two daughters, L.L. and

C.L., and granted Father periods of partial physical custody. We affirm.

        Husband and Wife married on September 8, 2001, separated in

January 2007, and divorced during October 2009.              Two children, L.L. and

C.L., were born of the marriage.            On January 31, 2007, Father filed a

complaint in divorce that included, inter alia, a count for custody of the

children. The trial court appointed John A. Bellino, Esquire, as guardian ad

litem. The action proceeded before a custody master, and on July 16, 2009,

the     trial   court   entered    a     custody   order   adopting   the   master’s
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recommendation to award Mother primary physical custody and to grant

Father overnight custody on alternating weekends and partial physical

custody for approximately four hours on Tuesday evenings.         Neither party

filed a de novo appeal, and despite multiple petitions to modify the custody

arrangement, the custody order remained largely unchanged.

       Father remarried and had two daughters with his current wife.         On

October 3, 2013, Father filed another petition for modification, wherein he

requested primary custody of L.L. and C.L. During the ensuing two-day trial,

Father and Mother testified and presented witnesses to support their

respective positions. The trial court examined the children in camera.1 As it

relates to one of Father’s complaints herein, the trial court declined to strike

the guardian ad litem’s custody report and recommendation on the grounds

that it was not filed and served on the parties pursuant to Pa.R.C.P.

1915.11-2(c).2      At the close of the evidentiary proceedings the trial court

____________________________________________


1
  Due to the trial court’s concern that Father would interrogate his daughters
about their testimony, the court subsequently ordered the notes of
testimony of the in camera sealed and prohibited counsel from discussing
the substance of the children’s testimony with their clients. As Father does
not challenge the trial court’s directive, we do not address it herein.
2
  Pursuant to Rule 1915.11-2(c), the guardian ad litem is required to file and
serve the report more than twenty days before the date set for the custody
trial. Herein, the guardian ad litem failed to file the recommendation and
faxed copies of the two-page document to respective counsel one week prior
to trial.




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directed the parties to file post-trial briefs and analyze their evidence in light

of the statutory best-interest factors outlined in 23 Pa.C.S. § 5328(a).3

____________________________________________


3
    Pursuant to 23 Pa.C.S. § 5328(a), the determination of a child’s best
interest requires the examination of the following sixteen factors:

       (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.

       (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.
(Footnote Continued Next Page)


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      On June 20, 2014, the trial court entered a custody order that

effectively denied Father’s request for primary custody.              The trial court

awarded shared legal custody and awarded Mother primary physical custody

of the children.       Father was granted an additional period of custody on

Thursday evenings from 3:15 pm to 7:00 pm. Finally, the court ordered co-

parenting counseling and directed Mother to provide Father with notice of

medical    appointments         and     school    activities.   The    trial   court’s

                       _______________________
(Footnote Continued)


      (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. § 5328.




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contemporaneous memorandum outlined its consideration of the sixteen

best-interest factors delineated in 23 Pa.C.S. § 5328(a). Trial Court Opinion

and Order, 6/20/14, at 2-12. This timely appeal followed.

       Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise

statement of errors complained of on appeal concomitant with his notice of

appeal.4 He presents four questions for our review:

       1. Whether the trial court erred in judgment to allow primary
          physical custody of minor children, [L.L. and C.L.], to remain
          with [M]other[.]

       2. Whether the trial court failed to take into proper consideration
          the factors relating to custody as set forth in 23 Pa.C.S.A. §
          5328.

       3. Whether the trial court erred in judgment to allow the
          inclusion of the recommendation of the court appointed
          Guardian ad Litem . . . into evidence and use it as one of the
          deciding factors.

       4. Whether the trial court abused its discretion in regards to
          evidence presented of misconduct and posts made on social
          media site, Facebook.

Father’s brief at 3.
____________________________________________


4
  Presumably because Father failed to serve his contemporaneous filing with
the trial court in accordance with Rule 1925, on July 22, 2014, the trial court
entered an order directing Father to file a Rule 1925(b) statement within
twenty-one days of that date. The order also instructed Mother to file a
response to Father’s Rule 1925(b) within seven days of Father’s filing.
Father complied with the trial court’s order. Mother did not file a response;
however, neither Father nor the trial court challenged the omission. Mindful
that Rule 1925 does not require a party to respond to an opponent’s concise
statement of errors, we do not sanction Mother for failing to comply with the
trial court’s order.



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      Our scope and standard of review of a custody determination 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.

        With any child custody case, the paramount concern is the
      best interests of the child. This standard requires a case-by-
      case assessment of all the factors that may legitimately affect
      the physical, intellectual, moral and spiritual well-being of the
      child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013) (quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)).

      Herein, the trial court’s June 20, 2014 custody order awarded Mother

primary physical custody.       As noted supra, the trial court properly

considered the best-interest factors enumerated in § 5328(a). Essentially,

the trial court determined that eleven of the enumerated factors militated in

favor of awarding Mother primary physical custody. The remaining factors

were determined to be either neutral or inapplicable. The trial court did not

adjudge one factor in Father’s favor.




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      Specifically, the trial court found, among other things, that Father’s

prior unfounded allegations of Mother’s mental abuse of their daughters and

Father’s attempts to force L.L. to “recant” statements she made during

private sessions with her mental health evaluators revealed a problematic

“win at any cost” mentality. Trial Court Opinion, 6/20/14, at 4. In a related

consideration, the trial court concluded that Father’s preoccupation with

L.L.’s discussions with her therapists upset that child and made her reluctant

to confide in mental-health professionals for fear that Father would discover

what she has told them. Id. at 9-10.

      As it relates to the factors addressing the sibling relationships of L.L.

and C.L. and the girls’ well-reasoned custodial preferences, the trial court

observed that, while the children are extremely close to each other, they

had not bonded with their young half-sisters and both believe that their

step-mother favors her children over them.      Id. at 8.   Likewise, the trial

court found, “Without any doubt [L.L. and C.L.] do not want to live with their

Father. . . . These children are intelligent and answered questions of counsel

and the Guardian ad Litem. These were not yes and no response.          [L.L.],

age eleven (11), discussed the questions and gave detailed reasons for most

answers.” Id. at 8-9. The court relayed L.L.’s feeling that her stepmother

berated her on occasions and teased her about the changes to her body

during puberty. Id. at 9. The court reiterated the child’s statements that

“she does not like the way her stepmother talks to her and [that her


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stepmother] likes to brag that her children are ‘a lot better than me and my

sister.’” Id. (emphasis in original). Further observing that the child did not

appear unhealthy or overweight, the court also noted L.L.’s objection to the

manner that Father limited the amount of food she could consume. Id. In

relation to C.L., the child appears to enjoy spending time with Father but

does not want to live with him. C.L., stated, “I like being with my mom the

most.” Id.

      Additionally, after close inspection, the trial court found that Mother

maintained stability in the children’s education, family life, and community

even though she moved six times within a two-year period.          Significantly,

the court highlighted that the children never left their original neighborhood

or changed schools, and continued their academic excellence during the

period of uncertainty for the family. It concluded that these facts evidenced

Mother’s role as a stabilizing force in her daughter’s lives.

      Father’s first complaint highlights two factual errors: C.L.’s age at the

time of trial and whether the then-current custody order alternated the one

night of partial physical custody between Monday and Thursday evenings.

We agree with Father’s position that the trial court misstated C.L.’s age as

eight rather than nine years old at the time of the custody trial. Likewise,

the certified record confirms that the prior custody order granted Father

partial custody on Tuesday evenings, although the parties adjusted the

period to accommodate their daughters’ activities.              However, these


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misstatements of fact were inconsequential and do not warrant disturbing

the trial court’s custody determination. Stated simply, the errors as to C.L.’s

age and the precise weeknight that the order permitted Father to exercise

partial physical custody were immaterial and did not alter the trial court’s

statutory best-interest analysis. No relief is due.

      Father’s second argument challenges the weight of the evidence

regarding the court’s findings as to all but two of the best-interest

considerations. Misinterpreting our standard of review and deference for the

trial court’s role as fact finder, Father contends that the trial court ignored

certain evidence that inured to his benefit. This position fails to recognize

that the court did, in fact, consider Father’s evidence but, as the ultimate

fact finder, the trial court discounted that evidence in favor of Mother’s

countervailing evidence.    Thus, Father’s argument demands that we re-

examine the evidence presented during the two-day hearing in a more

favorable light in order to attain a different conclusion. We decline to revisit

the trial court’s factual findings, which are supported by the certified record,

in order to reassess the weight of the evidence. J.R.M., supra at 650 (“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”).

      Next, we address Father’s contentions that the trial court erred in

accepting the guardian ad litem’s report and recommendation after the


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guardian ad litem failed to comply with the procedural aspects of Pa.R.C.P.

1915.11-2(c). The crux of this complaint is that neither Father nor Mother

received   the   requisite   twenty-day   notice   to   review   the   report   and

recommendation prior to trial. While Father’s counsel outlined the potential

prejudice associated with permitting the guardian ad litem to circumvent

Rule 1915.11-2(c), such as the impediments to cross-examination regarding

the guardian ad litem’s reasoning, analysis, and opinion, Father does not

assert prejudice herein.     Moreover, as the trial court noted in declining to

strike the recommendation, the guardian ad litem’s brief report lacked

substance and the objections that Father leveled against its admission

ultimately concerned the weight that the trial court would assign to it.

      Instantly, there is no indication in the certified record that the trial

court assigned any weight to the report or recommendation.              The court

simply acknowledged the guardian ad litem’s recommendation under the

statutory catch-all custody factor without adopting or specifically invoking

the recommendation as a basis for its determination to maintain Mother’s

primary physical custody.     In light of the trial court’s thorough analysis of

the enumerated best-interest factors and its consistent findings in favor of

Mother, we cannot conclude that it was reversible error for the trial court to

refer to the guardian ad litem’s recommendation under the heading, “[a]ny

other relevant factor.” See 23 Pa.C.S. § 5328(a)(16). Father’s argument

to the contrary is unpersuasive.


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      Father’s final issue concerns the trial court’s restrained reaction to the

alleged misconduct by Mother and her witnesses outside of the court room

on the first day of trial and Mother’s posts on Facebook regarding the

custody litigation. The relevant facts, as recited by Father, are as follows:

      On February 21, 2014, the first day of custody trial, the Appellee
      and all of her witnesses were allowed access . . . to the [Luzerne
      County Sherriff’s] security . . . room across . . . the hall from the
      court room. The security officer, [Deputy Sheriff] Michelle
      Castner, was in and out of that room and the court room during
      trial. . . . After the first day of trial, it was brought to the
      attention of Appellant that some posts were being put up on
      Facebook that he needed to see. He was given a few screen
      shots from [Mother’s] Facebook page. There was a picture of
      . . . [Mother’s] aunt [,Karen Peck,] in handcuffs, leg irons, and
      waist restraint with the caption, “Should have testified correctly,
      Lmao." This . . . witness [testified during the custody trial
      about] accusations of abuse committed by Appellant[.] The next
      screenshot [included] a status update . . . thanking [Deputy
      Castner] . . . for “a good couple giggles to get my mind off the
      hearing.” [The security officer’s] name is highlighted in blue
      which . . . indicat[es] that they are friends on Facebook[.]
      Another [witness and mutual] friend of [Deputy] Castner and
      [Mother], Holly Miller, . . . commented on the Facebook post
      stating, “the Judge told [me] he's not changing primary
      custody.” This evidence was presented to Appellant's lawyer . . .
      whom [sic] presented it to [the trial court] before the second
      day of trial.

Father’s brief at 33-34. Father also alleged that some of Mother’s witnesses

contravened the sequestration order by discussing the custody dispute in the

hallway outside of the court room.     He added that, when alerted to those

discussions, the deputy sheriffs on security detail failed to confront the

behavior.




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      After being informed of the alleged improper conduct, the trial court

admonished Mother off the record for her actions, postings on social media,

and her witnesses’ behavior.         According to Father, the trial court,

“wholeheartedly denied telling anybody what his decision on custody would

be before he heard the whole case or entered a verdict.”             Id. at 34.

Essentially, Father’s complaint on appeal is that the trial court’s off-the-

record remedy was insufficient. We disagree.

      We observe that while Father’s counsel brought the alleged misconduct

to the trial court’s attention, Father did not object to the trial court’s choice

of remedy.    Father did not move to strike any of the ostensibly tainted

testimony, request a mistrial, or propose an alternative remedy.        Instead,

Father accepted the trial court’s rebuke of Mother and the court’s verification

that it neither made the statement attributed to it nor fashioned the custody

decision prior to the close of evidence and argument. Having acceded to the

court’s remedy during trial, Father cannot assert error and prejudice at this

late juncture. Hence, his claim fails.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 6/4/2015




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