J-A35015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.S.S.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

M.J.S.,

                           Appellant                 No. 850 WDA 2014


                    Appeal from the Order April 23, 2014
             In the Court of Common Pleas of Allegheny County
                  Family Court at No(s): FD 10-007983-008


BEFORE: BENDER, P.J.E., BOWES, J., and DONOHUE, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 20, 2015

      M.J.S. (“Father”) appeals from the custody order dated April 23, 2014,

that was entered after two trials were held and an appeal was undertaken to

decide the custody issues involving Father’s and J.S.S.’s (“Mother”) three

children: C.S. ( born in April of 1997), A.S. (born in March of 2000), and

T.S. (born in November of 2004) (collectively “Children”). After review, we

affirm.

      This Court in Father’s previous appeal set forth the following history of

this case, stating:

            Mother and Father were married on July 22, 1995, and
      separated on April 5, 2010. Following an unsuccessful attempt
      to mediate their custody issues, Father filed a Complaint for
      Primary Physical Custody of the Children on July 22, 2010.
      Generations Education and Mediation programs were scheduled.
      On July 23, 2010, Mother filed a Complaint in Divorce, along with
      a counterclaim for primary physical custody of the Children.
J-A35015-14



              Father filed a Motion for Interim Custody in August 2010 in
       an attempt to obtain shared physical custody, which was denied.
       The parties then commenced co-parenting counseling … and
       entered into an agreement for a shared custody schedule on a
       short[-]term basis. As the custody issue was not resolved by
       this agreement, the trial court ordered [a] psychological
       evaluation to be conducted by Dr. Eric Bernstein in January of
       2011.     Upon completion of the psychological evaluation, a
       judicial conciliation was scheduled for April 6, 2011, but later
       rescheduled for March 28, 2011.

              Father filed a second Petition for Interim Custody.
       Pursuant to the recommendation of Dr. Bernstein, an Interim
       Custody Order was entered on March 15, 2011. Due to the fact
       that the parties could not determine a holiday custody schedule,
       the trial court entered another Interim Order on March 28, 2011,
       vacating all prior orders and reiterating the terms of the March
       15, 2011 order and adding additional provisions regarding co-
       parenting counseling, holidays, and vacations. As the parties
       were still unable to reach an agreement as to holidays, the trial
       court entered an order on April 13, 2011, outlining a holiday
       custody schedule.       The trial court scheduled a pre-trial
       conference for July 26, 2011. Father filed motions to obtain
       compliance with vacation provisions, as well as to allow the
       younger Children to attend the eldest child’s confirmation, which
       were granted by the trial court.

              On August 18, 2011, the trial court scheduled a three-day
       trial for November 7, 15, and 29, 2011. The trial actually
       occurred on November 7, 15, 22, 23, and December 19, and 21,
       2011.     An updated psychological evaluation was conducted
       during this time period.

             Following the custody trial, the trial court entered a
       custody order on January 18, 2012, outlining Mother’s and
       Father’s custodial periods for 2012, 2013, and 2014.[1] On
       February 1, 2012, Mother filed a Motion for Reconsideration of
       the January 18, 2012 custody order. The trial court granted
____________________________________________


1
  The January 18, 2012 order provided generally that the parties would have
joint legal custody and that by 2014 they would have an equally shared
physical custody arrangement without further review by the court.



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      Mother’s Motion for Reconsideration in part to allow for a review
      hearing before implementation of the trial court’s 2013 and 2014
      physical custody schedule in conjunction with a new
      psychological evaluation.    A review hearing was set for
      November 19, 2012, and the trial court ordered an updated
      psychological evaluation to be completed before the review
      hearing. Hearings were held on November 19, and December 5,
      2012.    The custody matter was not completed, and, on
      December 6, 2012, the trial court stayed the January 18, 2012
      custody order relating to the increased custody provisions for
      2013 and 2014.

            Following the stay, Father allegedly engaged in various
      threatening conduct towards Mother, and she requested an order
      of no-contact, which was granted on an interim basis on
      December 18, 2012. Father filed a Petition for Protection from
      Abuse (“PFA”) on December 27, 2012, and the trial court
      dismissed Father’s PFA petition on January 13, 2013.           On
      February 5, 2013, the trial court granted Mother counsel fees,
      reasoning that Father had filed his PFA petition in bad faith.

            The custody proceedings resumed on March 8, and March
      11, 2013. By order dated March 14, 2013, and entered on
      March 18, 2013, the trial court made the physical custody
      provisions of primary physical custody to Mother and partial
      physical custody to Father, and shared legal custody to both
      parties as listed in the January 18, 2012 order permanent.

J.S.S. v. M.J.S., No. 641 WDA 2013, unpublished memorandum at 1-4 (Pa.

Super. filed February 11, 2014) (J.S.S. I).

      To further provide a factual background for this case, we include a

portion of the trial court’s opinion, dated May 23, 2013, which was written in

conjunction with Father’s initial appeal to this Court, i.e., J.S.S. I. The trial

court stated:

      During the marriage, Father travelled regularly for his career and
      was often away from the family for all but weekends, leaving the
      day-to-day care of the children to Mother. The parties separated
      in 2010. Both parties filed for primary custody of the children.


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     The parties were unable to negotiate an acceptable schedule
     and, ultimately, a trial was scheduled.

     I entered a custody Order on January 18, 2012, after five days
     of trial. I ordered the parties would share legal custody of their
     three children except for certain medical issues. With regard to
     physical custody, Father would enjoy partial custody every other
     weekend. On non-custodial weeks, he would have the boys for
     two weeknights and his daughter, [A.S.], for one night. Father's
     custody time was to gradually increase over a period of two
     years until the parties would ultimately share physical custody. I
     ordered reunification therapy for Father and daughter, [A.S.],
     and individual counseling for [A.S.].

     I arrived at this scheme very deliberately in order to give Father
     time to gradually build his relationship with his children,
     especially with [A.S.]. Based on all the testimony, it was clear to
     me that the relationship between Father and daughter was very
     fragile and filled with contention, in great part due to Father's
     rigidity with regard to what he saw as “his time” with the
     children. Any contact [A.S.] had with Mother … during “his time”
     was perceived by Father as purposeful interference by Mother
     and belligerence by daughter and resulted in various
     punishments for [A.S.] which served to increase her strife with
     Father.

     As noted, Father, who has a demanding career, had not been
     actively involved in the day to day lives of his children during the
     parties’ marriage but was determined to be so after the parties
     separated. While this is commendable, Father did not seem to
     recognize the need to take the time to allow his children to
     become accustomed to his new role. Mother was not faultless in
     this process, in my opinion. My concern, however, was not who
     to blame but how to bring the parties closer together without
     further stressing a clearly upset young girl. It was my hope that
     Father and daughter, through therapy and time, could gradually
     repair their relationship.

     After the trial, both parties filed motions for reconsideration and
     clarification. Mother asked that she be permitted to petition the
     court for a review of the custody situation, including updated
     psychological evaluations, before Father's increased custody
     went into effect.     I granted that portion of her Motion on
     February 1, 2012, as I felt it was warranted. I do not, as a rule,

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J-A35015-14


     desire to put families and children through additional litigation,
     but, in this case, [I] was troubled by [A.S.’s] distress and by the
     general inability of these parties to agree on even the simplest
     aspects of their custody arrangements. The complete inability of
     the parents to co-parent on even the simplest level, despite their
     intelligence, education and social standing, was troubling. If
     that pattern of behavior could not improve, I deemed a review to
     be appropriate to determine if custody should be increased.

     Accordingly, a one[-]day review was scheduled for November
     19, 2012. When it was learned that the psychologist who
     performed the evaluations, Dr. Bernstein, was not available, a
     separate half day was scheduled for him to testify on December
     5, 2012. The case did not conclude on that date for a number of
     reasons, not the least of which was Father's late arrival on
     December 5, after his insistence that he be allowed to testify
     first that morning, prior to Dr. Bernstein. Because Father had
     insisted on testifying first, Dr. Bernstein was not in the
     courtroom to testify when the case was scheduled to begin. An
     additional day was ultimately set aside for this review at the
     earliest possible day on my calendar, which was March 8, 2013.

     Because the review was not complete, I entered an Order dated
     December 6, 2012[,] which stayed the implementation of the
     increasing custody for Father which was to begin on January 1,
     2013. In Paragraph 26 of his Statement, Father complains that
     this Order was entered without “notice, presentation, argument,
     hearing or response or otherwise in consideration of Father's
     position.” Contrary to this assertion, Father and his counsel
     were in court when Mother's counsel presented the proposed
     Order. Father's counsel requested a specific amount of time to
     provide this Court with their own proposed order, to which I
     agreed. Father did not provide that order. The statement, at
     Paragraph 25 of the Statement[,] that the Order was entered
     “suddenly[,]” is contrary to the statement of Father's counsel at
     the hearing on March 8, 2013 (3/8/13 TR p 252-255)
     acknowledging Father was to send his own proposed interim
     order.

     Father's counsel withdrew her representation of Father and on
     March 8, 2013, Father proceeded pro se. The review still did not




                                    -5-
J-A35015-14


       conclude and an additional hearing was held on March 11, 2013,
       concluding the review. On March 14, 2013, I entered the order
       which is the subject of this appeal.[2]

       Much like the custody trial, Father spent most of his time in this
       review pointing out what he saw as Mother’s faults, rather than
       focusing on the needs and best interests of his children. On the
       other hand, Mother expressed credible concern with supporting
       testimony and evidence about Father’s continuing and escalating
       problems with his daughter, and daughter’s increasing distress.
       (11/19/12 TR p 17 - 30). Mother’s testimony demonstrated to
       me that it was the best interest of her children which was in the
       forefront of her mind. (3/8/13 TR p 20). Mother’s expression of
       concern for her children was seen by Father as Mother[’s]
       attempting to profit economically through having more custody.
       (3/8/13 TR p. 195-199). My interview with the children on
       November 19, 2012 clearly indicated that Father’s behavior, and
       therefore the children’s relationship with him had deteriorated.

       Father himself exhibited a demeanor in the courtroom that I
       found inappropriate.       He used terminology that I found
       disturbing, such as his use of the term “self-help” (3/11/13 TR p
       126-127), “hostage taking” (3/11/13 TR p 56), and his
       statements to Mother that this would [] “all be over soon”
       (3/11/13 TR p 157). Though prompted often from the bench to
       introduce     evidence     which     would    demonstrate     the
       appropriateness of an increase in his custody time, Father
       insisted on trying to put on his case through Mother. He focused
       only on behavior from the time period prior to the first hearing
       (3/11/13 TR p 57-59), and presented me with voluminous and
       unhelpful trial aids which he felt would demonstrate a conspiracy
       between Mother and her counsel - and this court - to deprive
       him of custody time.

       Ultimately, Father expressed his belief that the entire conduct of
       the case was somehow suspect. As proof, he referred to a letter
       from his former counsel wherein she notes that the case was
       erroneously listed on a filing receipt as being in front of a judge
       other than me. Father states that Mother’s counsel “switched”
____________________________________________


2
  The March 14, 2013 order is the order from which Father appealed in
J.S.S. I.



                                           -6-
J-A35015-14


      the case to my docket. (3/11/13 TR p. 95-97). Father’s trial aid
      states[,] “Dad will always wonder why Judge Marmo isn’t
      involved.”

      Based on the evidence before me, and my observation of the
      parties and their children, I rightly found that an increase in
      Father's custody time would be detrimental to the children. As
      the best interests of the children is the primary concern in the
      formulation of a custody order, my March 14, 2013 Order should
      be affirmed.

Trial Court Opinion, 5/23/13, at 2-5 (unnumbered; footnotes omitted).

      On April 12, 2013, Father filed an appeal with this Court from the

March 14, 2013 custody order, which was entered on the docket on March

18, 2013. Upon review, this Court vacated the custody order and remanded

the matter for the trial court to “expressly consider all of the section 5328(a)

best interests factors in arriving at its custody decision….”    J.S.S. I at 8.

See 23 Pa.C.S. § 5328(a); J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super.

2011) (stating “[a]ll of the factors listed in section 5328(a) are required to

be considered by the trial court when entering a custody order”) (emphasis

in original).   The trial court responded by submitting an opinion that

contained discussion regarding all sixteen custody factors. See Trial Court

Opinion, 3/6/14. In that opinion, the trial court noted its recognition that it

had not included a discussion of the sixteen factors in its opinion filed in

conjunction with Father’s April 12, 2013 appeal. The court stated, however,

that since its “analysis had not changed between the original January 18,

2012 Order and the March 14, 2013 Order[,]” it believed it was unnecessary




                                     -7-
J-A35015-14


to repeat its original analysis, which had included a discussion of the sixteen

factors. Id. at 2.

      Following the issuance of the trial court’s opinion, Father filed a

Petition to Confirm Custody—Reinstate Custody Order of January 18, 2012.

Mother responded and on April 23, 2014, the trial court ordered the denial of

Father’s petition, reinstating its March 14, 2013 order. Father then filed a

timely appeal from the April 23, 2014 order.       In essence, however, the

issues raised in this instant appeal relate to the trial court’s March 18, 2013

custody order.

      Father raises the following nine issues for our review:

      1. Whether the trial court committed an error of law or abuse of
      discretion in finding that Father was not entitled to the expanded
      custodial time as outlined in the original Custody Order entered
      January 18, 2012[?]

      2. Whether the trial court committed an error of law or abuse of
      discretion in finding that the parties daughter, [A.S.], was
      harmed by spending more time with Father when there was no
      evidence from the Court appointed psychologist or otherwise to
      support this finding[?]

      3. Whether the trial court erred in not considering its own
      admission that Mother is equally culpable in failing to cooperate
      with Father[?]

      4. Whether the trial court committed an error of law or abused
      its discretion in drawing a negative inference from Father's
      withholding of consent to release records of [A.S.’s] treatment
      with Dr. Wollman, a practitioner who clearly made abhorrent
      mistakes in [the] treatment of [A.S.] to Father's detriment and
      indicated in casual statements her bias against Father[?]

      5. Whether the trial court committed an error of law or abused
      its discretion in granting Mother legal custody, especially with
      regard to the parties’ son, [C.S.], who has a unique masculine-


                                     -8-
J-A35015-14


      related medical condition where he would especially need his
      Father’s involvement[?]

      6. Whether the trial court committed an error of law or abused
      its discretion by the scheduling of a review hearing back in
      February 2012 yet not to be held until November 2012 prior to
      implementation of her expanded schedule, as such review
      hearing essentially invited and incentivized Mother to sabotage
      the implementation of the Custody Order in every way
      possible[?]

      7. Whether the trial court committed an error of law or abused
      its discretion by precluding appeal or review of this matter in
      almost three years of proceedings by dangling the concept of
      shared custody before Father, but indulging continuances,
      review hearings, stays and ultimately vacating all prior orders,
      eliminating such shared custody time[?]

      8. Whether the trial court committed an error of law or abused
      its discretion in separating siblings in the custodial schedule[?]

      9. Whether the trial court erred as a matter of law and abused
      its discretion by entering a “no contact” order enforceable by the
      police as an Interim Order between the second and third days of
      the review hearings as this perpetuated a highly prejudicial
      environment to Father and, more significantly, circumvented his
      constitutional rights under the PFA statute[?]

Father’s brief at 7-8.

      With regard to custody matters, our scope and standard of review are

as follows:

      [O]ur scope is of the broadest type and our standard is abuse of
      discretion. This Court 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, this Court must defer to the trial judge who presided
      over the proceedings and thus viewed 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


                                     -9-
J-A35015-14


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

E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B.,

989 A.2d 32, 35-36 (Pa. Super. 2010)). Furthermore, we note that:

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

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012).

         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 well-being. Saintz v. Rinker, 902

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

677 (Pa. Super. 2004)).

         Father first argues that the court abused its discretion by refusing to

expand his time with the Children. He contends that nothing had changed

since the January 18, 2012 order was entered that should have resulted in

the court’s refusal to order an equal custody arrangement.               Father

particularly mentions the court’s reliance on the difficulties the parties have


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J-A35015-14


had communicating with each other. Because this had not changed, Father

claims that the court’s reliance on this factor was in error in that “the

parties’   less-than-‘minimal’   communication   is   not   supported   by   the

evidence.” Father’s brief at 23. To support his argument, Father relies on

B.C.S. v. J.A.S., 994 A.2d 600 (Pa. Super. 2010), which provides:

      Shared custody in Pennsylvania is governed by 23 Pa.C.S. §
      5304:

             § 5304. Award of shared custody

             An order for shared custody may be awarded by the
             court when it is in the best interest of the child:

             (1) upon application of one or both parents;
             (2) when the parties have agreed to an award of
             shared custody; or
             (3) in the discretion of the court.

      23 Pa.C.S. § 5304. In Wiseman v. Wall, 718 A.2d 844 (Pa.
      Super. 1998), this Court identified factors the trial court is
      required to consider:

             Among the factors which must be considered in
             awarding shared custody are the following: (1) both
             parents must be fit, capable of making reasonable
             child rearing decisions and willing and able to
             provide love and care for their children; (2) both
             parents must evidence a continuing desire for active
             involvement in the child's life; (3) both parents must
             be recognized by the child as a source of security
             and love; (4) a minimal degree of cooperation
             between the parents must be possible.

      Id. at 848; see also In re Wesley J. K., 299 Pa. Super. 504,
      445 A.2d 1243, 1248-49 (Pa. Super. 1982). A minimal degree of
      cooperation does not

             translate into a requirement that the parents have
             an amicable relationship. Although such a positive

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J-A35015-14


            relationship is preferable, a successful joint custody
            arrangement requires only that the parents be able
            to isolate their personal conflicts from their roles as
            parents and that the children be spared whatever
            resentments and rancor the parents may harbor.

      In re Wesley J. K., 445 A.2d at 1249 (citation omitted).

B.C.S., 994 A.2d at 602-03.      Consequently, based on this discussion in

B.C.S., Father asserts that this Court has not mandated that an amicable

relationship between the parents is a prerequisite for shared custody.

Rather, he contends that his and Mother’s “minimal” communication is

adequate to support shared custody. Father’s brief at 25. Moreover, Father

asserts that the court’s current custody schedule does not meet the

Children’s best interests, but sends a message “that Father [is] a ‘less than’

parent[.]” Id. at 26.

      Father overlooks the reasoning behind this Court’s reversal of the

order on appeal in B.C.S.     The trial court in B.C.S. denied the father’s

petition for shared custody based upon a personal, mistaken belief that the

parties must “really [be] able to work well together and talk to each other

frequently … and be civil and cordial….” B.C.S., 994 A.2d at 603. Since that

does “not comport with well-established precedent[,]” we vacated the trial

court’s order and remanded for further proceedings.         Id. (citing In re

Wesley J.K., 445 A.2d 1243, 1249 (Pa. Super. 1982)).

      Here, the court focused on the best interests of the Children and, in

part, relied on their opinions, namely, that they preferred being in Mother’s


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care and that they had “some fear of their Father[.]” Trial Court Opinion,

3/6/14, at 4.    The court also noted that the Children felt Father “to be

untruthful, … that he tried to convince them their Mother did not want them,

… [and] that Father pushes A.S.’s buttons and that he was irrational.” Id.

(internal quotation marks omitted). The court further indicated that:

      While it was clear to me that the [C]hildren love their Father, it
      was equally clear that they are more comfortable in their
      Mother’s care and that A.S. does not think she loves her Father.
      She, in particular, has a damaged and complicated relationship
      with her Father that I hoped he would give [A.S.] care and time
      to heal. Instead, there were numerous examples presented
      wherein he caused her unneeded stress. He was unwilling to
      focus on rebuilding his relationship with her so it could continue
      into the future and instead focused on forcibly imposing his will
      on her in a fashion virtually guaranteed to further alienate them
      from each other.

Id. at 5. Simply stated, Father’s allegations that the court’s findings are not

supported by the evidence are incorrect.          Father appears to be requesting

that this Court re-find and/or re-weigh the evidence.         However, as stated

above, our standard of review requires that we “accept findings of the trial

court that are supported by competent evidence of record, as our role does

not include making independent factual determinations.”            C.R.F., III v.

S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). Therefore, we conclude that

Father’s first issue is without merit.

      Likewise, Father’s second argument, which centers on A.S. and her

relationship with Father, again would require that this Court revise the trial

court’s findings in that he claims there is no support in the record for those


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findings. Father relies on Dr. Bernstein’s testimony, citing a section of it that

indicates an equal custody arrangement may lessen the tension between

Mother and Father. See Father’s brief at 29. Father does acknowledge that

Dr. Bernstein is not necessarily suggesting shared custody, i.e., changing

the existing custody schedule, but Father questions whether an increase of

four more days per month could be “greatly disrupt[ive….]”           Id.   Father’s

argument appears to suggest that four days less custody per month creates

the problems, but that four days more would “stop the bleeding.” Id. at 30.

Again, we conclude that Father’s argument rests on an attack on the trial

court’s findings, which are based on its credibility determinations to which

we defer. Again, we conclude that Father is not entitled to relief.

      Father’s third issue references Mother’s request for reconsideration of

the January 2012 order that would have expanded Father’s custody over the

next two years to reach equal, shared custody. Father accuses the court of

creating   hostility   between   the    parties     when   it   granted    Mother’s

reconsideration request, thus, giving “Mother the incentive to prevent Father

from obtaining his expanded time in advance.”          Id. at 31.   He complains

that Mother then could “sabotage and thwart all [his] attempts … to prove

himself to the court that he was worthy of additional custodial time.”          Id.

Father also contends that the continuing litigation had a “deleterious effect”

on the Children because the custody issues went unresolved, a fact Father

claims the Children blamed on him.              To support this argument Father


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identifies testimony presented by himself, Dr. Bernstein, Mother, A.S., and

Father’s sister, discussing what each witness stated and concluding that “the

court effectively ‘sanctioned’ Father” when it refused to reinstate the prior

shared custody award. Id. at 37. Father provides no citation to authority

and overlooks this Court’s inability to make factual determinations that

contradict the trial court’s findings, which are supported by the evidence of

record. This argument is also without merit.

     Father’s fourth issue involves his refusal to consent to the release of

A.S.’s records of her treatment with Dr. Wollman, who Father contends is

biased against him and made mistakes in her treatment of A.S.         Father

claims that the trial court drew a negative inference from his refusal to

consent to the release and that, therefore, the custody order should be

reversed.

     In response to this issue, Mother contends that the cases cited by

Father are not applicable to the situation before this Court in that those

cases discuss the confidentiality of mental health records. See e.g., Gates

v. Gates, 967 A.2d 1024 (Pa. Super. 2009) (reversing trial court’s finding a

mother in contempt for refusing to release her confidential mental health

records in the context of a custody action).    Rather, Mother asserts that

Father’s concern was not the confidentiality of A.S.’s records of her

treatment, but that his refusal was an attempt to block any biased

statements about him that he believed Dr. Wollman would make.


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      In its May 23, 2013 opinion, the trial court addressed this issue as

follows:

      Dr. Wollman made a comment regarding Father which indicted
      that she may have harbored a bias against Father. However,
      there is actually no way for me or Dr. Bernstein to know if she
      made “abhorrent mistakes” as Father states without seeing the
      records. I found that Father’s failure to consent to the release of
      those records to Dr. Bernstein demonstrated that he was not
      seeking to get information that might have assisted the
      psychologist, me, and, most importantly, himself, in reaching a
      better understanding of his daughter.

      I was disturbed by Father’s failure to sign the release. Any
      inference I drew from Father’s refusal to release Dr. Wollman’s
      records, however, had no [a]ffect whatsoever on my decision to
      not implement increased custody time for Father. I did not
      increase Father’s custody time because I do not believe it would
      be in the best interest of his [C]hildren to do so, based on all of
      the evidence before me.

Trial Court Opinion, 5/23/13, at 8. Father’s argument has failed to persuade

us otherwise. Therefore, we do not conclude that the trial court abused its

discretion.

      In his fifth issue, Father asserts that the court’s assigning limited legal

custody of C.S. to Mother, in regard to C.S.’s medical condition for which he

receives injections, is an abuse of discretion.    Specifically, the March 14,

2013 order provided joint legal custody of the Children, but added that if the

parties could not agree “as to the course of [m]edical [t]reatment, including

the selection of the professional provider, Mother’s determination shall

prevail.”     Trial Court Order, 3/14/13, at 2.   The order also directed that

Mother schedule the Children’s medical appointments with notice to Father


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so that he can attend the appointments. Father believes he should be a part

of the decision making process, relying on Hill v. Hill, 619 A.2d 1086 (Pa.

Super. 1993). The Hill case concerned a situation in which the parents were

awarded shared legal custody, but “[i]n the event of disagreement,

[m]other’s preference [would] prevail.” Id. at 1088. On appeal, this Court

held that the trial court had given “the father authority in name only and

deprived him of a legal remedy because he was already awarded ‘share legal

custody.’” Id. at 1088. We further stated that “the concept of shared legal

custody does not contain the principle of giving one parent final authority in

the event of a dispute.”   Id. at 1089 (relying on In re Wesley J.K., 445

A.2d 1243 (Pa. Super. 1982)).

      In response to this claim of error, the trial court explained:

      The    evidence    presented    regarding    medical   treatment
      demonstrated to me that Father is more concerned with
      interfering and exercising control over the scheduling of
      appointments for the [C]hildren than he is in making sure that
      they get appropriate treatment.         He arbitrarily cancelled
      appointments scheduled by Mother for times when the [C]hildren
      would not miss school, rescheduled them for times when the
      [C]hildren would miss school, and then failed to attend those
      appointments and Mother took the [C]hildren. With regard to
      [C.S.], Father demonstrated no basis for his objections to the
      treatment plan of his son’s doctor; his objections were arbitrary.
      He did not seek a second opinion, merely demanded that nothing
      be done without his “consent.” It is imperative that this young
      man receive regular and monitored care and it was my
      determination that Father’s demands that nothing be done
      without his “consent” is not based on anything but his struggle




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J-A35015-14


       for power. This behavior was repeated regarding the younger
       boy’s dermatological treatment.

Trial Court Opinion, 5/23/13, at 9 (unnumbered).3

       Although we recognize that Father’s reliance on the holding in Hill is

persuasive, we conclude that the Hill case is distinguishable from the

present circumstances. In Hill, the “final decision-making power” awarded

the mother covered every decision that could arise; it was not just limited to

medical treatment decisions as is the situation here.      The Hill court also

noted that the trial court had not made on the record findings about the

parents’ ability to at least minimally cooperate.        Here, the trial court

provided extensive findings on the lack of cooperation between Mother and

Father, particularly as it related to the medical treatment of the Children, not

just decisions in general. Therefore, we conclude that in light of the parties’

inability to cooperate, as found by the trial court, the limited exception to an

equally shared custody arrangement, regarding the medical treatment of all

three Children, is not an abuse of discretion.     Hill does not control under

these circumstances.

       Father’s sixth claim of error involves Pa.R.C.P. 1915.4, entitled

“Prompt Disposition of Custody Cases,” which in pertinent part provides:

____________________________________________


3
  Father also argues that Mother’s father, who is a physician, should not be
treating the Children. Father did not raise this issue in his Pa.R.A.P. 1925(b)
Statement of Matters Complained of on Appeal, therefore, we deem this
issue waived. See Rule 1925(b)(4)(vii).



                                          - 18 -
J-A35015-14



       (c) Trial. Trials before a judge shall commence within 90 days
       of the date the scheduling order is entered. Trials and hearing
       shall be scheduled to be heard on consecutive days whenever
       possible but, if not on consecutive days, then the trial or hearing
       shall be concluded not later than 45 days from commencement.

Pa.R.C.P. 1915.4(c).

       Father claims that this rule was violated because he had filed the

custody action in July of 2010 and the final order was not entered until

March of 2013, almost three years later. Father also states that the “review

hearing” held in November of 2012 was unnecessary and was not completed

until March of 2013. He sets forth an extensive discussion of the procedural

history of this matter, and claims that Mother and the trial court were the

cause of the various delays that prejudiced both him and the Children.

       We are compelled to conclude that this issue has been waived because

it was not raised in the court below.          See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).      See also Pa.R.A.P. 2117(c) (“issue is not reviewable on

appeal unless raised or preserved below”); and Pa.R.A.P. 2119(e) (same).

Furthermore, these rules require an appellant to identify where in the record

the issue was raised below and Father has not done so.4

____________________________________________


4
  We also note that Father’s reliance on Pa.R.C.P. 1915.4(c) may be ill-
advised in that the relief to which he may have been entitled could have
resulted in a dismissal of his custody complaint pursuant to Pa.R.A.P.
1915.4(b). See Dietrich v. Dietrich, 923 A.2d 461 (Pa. Super. 2007).
(Footnote Continued Next Page)


                                          - 19 -
J-A35015-14


      In Father’s seventh issue, he appears to assert that the court did not

consider all the evidence in arriving at its custody order.    Specifically, he

contends that at the November 19, 2012 hearing, “after only having heard

Mother’s direct testimony and [half] of the [C]hildren’s testimony in camera,

the trial judge, in response to [A.S.’s] request to decrease the time spent

with her father, boldly declared to her: ‘I don’t think we are going to go up

in time.’”   Father’s brief at 51-52 (emphasis omitted).      Based upon this

single statement by the court, Father asserts that the court had “foreclosed

further consideration of the issue, and that the remainder of the proceedings

below were mere surplusage that need only be endured.” Id. at 52.

      Mother responds, pointing out that the court advised Father to provide

evidence that supported his claim for shared custody. Rather than comply

with the court’s request, Mother contends that “Father spent most of his

time … pointing out what he saw as Mother’s faults, rather than focusing on

the needs and best interests of his [C]hildren.” Mother’s brief at 44 (quoting

Trial Court Opinion, 5/23/13, at 4 (unnumbered)). Mother also relies on a

statement in this Court’s memorandum issued in response to Father’s appeal

from the divorce decree. Noting that Father requests relief from this Court

upon remand by directing that a different judge be appointed (Father’s brief

                       _______________________
(Footnote Continued)

Additionally, this dismissal would not necessarily have brought about the
reinstatement of the January 2012 order, which we recognize is Father’s
goal.



                                           - 20 -
J-A35015-14


at 60), Mother quotes a portion of this Court’s prior decision in [J.S.S.] v.

[M.J.S.], No. 1214 WDA 2013, unpublished memorandum at 29, n.7 (Pa.

Super. filed July 31, 2014), which addressed Father’s implication that the

trial court was biased against him.       Mirroring what was stated in that

decision, we suggest that if Father believed the court was biased then he

should have petitioned for recusal.     Implying bias without petitioning for

recusal will not overcome Father’s failure to present evidence supporting his

claim for shared custody.     Moreover, our review reveals that the court’s

comment to A.S. appeared to be an attempt to comfort her and was not an

indication that the court had pre-judged the final outcome.          Thus, we

conclude that Father’s seventh issue is without merit.

      In Father’s eighth issue, he contends that the trial court ignored Dr.

Bernstein’s recommendations and the guidance of well-settled case law

when it ordered a custody schedule separating the siblings. Father provides

more than six pages of discussion, setting forth various incidents that he

believes give support to A.S.’s feelings of alienation from him. Father also

extensively discusses Dr. Bernstein’s opinion.     However, Father does not

explain that the schedule deviates by only two days per month, i.e., A.S.

spends one less overnight with her Father every two weeks than her

brothers do.

      In its opinion on remand, the trial court discussed this issue relating to

Factor 6, listed in the Child Custody Act, 23 Pa.C.S. § 5328(a), stating:


                                    - 21 -
J-A35015-14


      Since the children are together during most periods of custody
      and have no step-siblings, the considerations of Factor 6
      regarding sibling relationship are met equally. A.S. spends an
      extra day with her Mother when her brothers are in Father's
      custody, I disagree with Father's assessment, which is somewhat
      reinforced by Dr. Rosenblum's [sic] testimony, that this
      arrangement gives A.S. some feeling of power to which she is
      not entitled.    To the contrary, I carefully considered her
      vehemently expressed desire to not be with her Father, and
      determined that allowing A.S. one less day with Father might
      reassure her that she had some nominal say in her life. Instead
      of being patient[,] allowing his child to adjust and attempting to
      mend his relationship with her, Father dug in his heels and
      focused on what he thought he was entitled to, rather than
      considering his child's best interests.

Trial Court Opinion, 3/6/14, at 4 (unnumbered).

      “[T]he policy in Pennsylvania is to permit siblings to be raised

together, whenever possible (the doctrine of ‘family unity’ or ‘whole family

doctrine’).” Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004). “Absent

compelling reasons to separate siblings, they should be reared in the same

household to permit the ‘continuity and stability necessary for a young

child’s development.”   Id.   “However, this Court has made clear that the

policy against separation of siblings is only one factor—and not a controlling

factor—in the ultimate custody decision.”     Id.   Under the circumstances

here, we conclude that the court did not abuse its discretion in ordering this

slight deviation from having the Children all spend the exact same amount of

time with Father, as he requests. Father’s argument does not convince us

otherwise.




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J-A35015-14


      Father’s final issue concerns the court’s issuance of a no-contact order

against him on December 18, 2012.        He complains that the court had no

authority to issue such an order and, therefore, it infringed on his

“constitutional liberty interests in free speech and association without due

process.” Father’s brief at 58-59. Father acknowledges that the order has

since been vacated, but complains that he and the Children were subject to

police involvement during the three-month period that the order remained in

effect.   Notably, Father does not explain what relief he seeks from this

Court.

      Mother directs this Court’s attention to Deutsche Bank Nat. Co. v.

Butler, 868 A.2d 574, 577 (Pa. Super. 2005), which provides that:

      “Generally, an actual claim or controversy must be present at all
      stages of the judicial process for the case to be actionable or
      reviewable….      If events occur to eliminate the claim or
      controversy at any stage in the process, the case becomes
      moot.” J.S. v. Whetzel, 860 A.2d 1112, 1118 (Pa. Super.
      2004) (quotation marks and citation omitted). “An issue can
      become moot during the pendency of an appeal due to an
      intervening change in the facts of the case or due to an
      intervening change in the applicable law.” In re Cain, 527 Pa.
      260, 590 A.2d 291, 292 (Pa. 1991). “An issue before a court is
      moot if in ruling upon the issue the court cannot enter an order
      that has any legal force or effect.” Rivera v. Pennsylvania
      Dept. of Corrections, 837 A.2d 525, 527 (Pa. Super. 2003).

      In response to this issue, we rely on the trial court’s order dated March

14, 2013, that states that “[a]ll prior custody Orders in this matter as well as

any Orders concerning communications between the parties are hereby

superseded in their entireties.   Certain provisions of these previous orders


                                     - 23 -
J-A35015-14


are incorporated herein; however, this Order is controlling.”   Trial Court

Order, 3/14/13, at ¶ 2. In light of the fact that the December 2012 order

was vacated, we conclude that this issue is moot. We again conclude that

Father is due no relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




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