J-S25041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M.M.-R.                                 :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 J.R.R.                                  :
                                         :
                    Appellant            :   No. 1835 WDA 2017

               Appeal from the Order Entered November 9, 2017
              In the Court of Common Pleas of Allegheny County
                  Family Court at No(s): FD 08-008935-016

BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED JUNE 4, 2018

      J.R.R. (“Father”) appeals pro se from the order entered November 9,

2017, in the Court of Common Pleas of Allegheny County, which granted the

petition for contempt filed by M.M.-R. (“Mother”) and sanctioned Father

$20,000 in counsel fees.        The order also denied Father’s petition for

modification of custody with respect to the parties’ son, H.R. (“Child”), and

awarded Mother five weeks of custody makeup time. After careful review, we

affirm.

      Mother and Father married in 1994 and divorced in 2012. Child was

born in January 2000. At the time of the hearing in this matter, the parties

were subject to a final custody order entered November 2, 2015, as modified

by an order entered April 4, 2016.     The orders awarded primary physical

custody of Child to Mother and partial physical custody to Father every Monday

and Thursday from 4:00 p.m. until 8:00 p.m. and every Friday from 4:00 p.m.
J-S25041-18



until noon on Saturday.        Father also exercised partial physical custody on

alternating Saturdays from noon until Sunday at 6:00 p.m.            The orders

awarded sole legal custody to Mother with respect to medical, dental, and

orthodontic matters, and shared legal custody in all other respects.

       By way of background, Child is autistic, suffers from obsessive-

compulsive disorder and anxiety, and functions within the borderline range of

intelligence with an IQ of 72. N.T., 10/30/2017 & 10/31/2017, at 38, 44.

Child takes medication and attends speech therapy and a social skills group in

order to address these concerns. Id. at 49, 60, 96. On May 27, 2016, Father

presented the trial court with a petition to modify legal custody for medical

decisions.1 In his petition, Father averred that Mother was neglecting Child’s

medical care and cancelling his therapy sessions. Father further averred that

Mother is an alcoholic, and that her alcohol abuse poses a threat to Child. The

court scheduled a hearing on Father’s petition for February 1, 2017.

       The remaining factual and procedural history of this matter centers

around a car accident that took place on November 15, 2016. Mother’s cousin,

J.K., was caring for Child that day because Mother was working. Id. at 51.

While J.K. was driving Child to lunch, she suffered a coughing fit and crashed

into a telephone pole. Id. at 187-88. Child complained of chest pain and was


____________________________________________


1 The record reveals that the pleadings in this matter were presented to the
trial court in person and then filed several days later.




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taken to the hospital.2 Id. at 53. When Mother arrived at Child’s bedside, he

became upset and yelled, “Dad said that you . . . would try to harm me.” Id.

at 54. Child also accused J.K. of having alcohol in her travel mug. Id. at 56.

Father took custody of Child after he was discharged from the hospital, stating

that he would return Child to Mother’s care later that evening. Id. at 58.

However, when Mother attempted to retrieve Child, Father insisted that Child

did not feel safe with her and would spend the night at his home. Id. at 59.

Child sent Mother a text message from Father’s phone stating the same thing.

Id.

       On December 5, 2016, Mother presented the trial court with a petition

for special relief, contempt, and hearing date. Therein, Mother averred that

she had no contact with Child since the afternoon of the car accident and that

Father was refusing to return Child to her care. Mother requested that the

court direct Father to return Child and schedule a hearing to address Father’s

contemptuous behavior. Father presented an answer to Mother’s petition, in

which he averred that Child was refusing to return to Mother.

       The trial court entered an order directing that Father return Child to

Mother on December 7, 2016. The court further directed that it would address

Mother’s contempt allegations during the hearing on Father’s petition to




____________________________________________


2Child did not suffer any injuries other than bruising from his seatbelt. N.T.,
10/30/2017 & 10/31/2017, at 56.

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modify legal custody for medical decisions on February 1, 2017. The court

scheduled an expedited conciliation to occur on December 19, 2016.

      On December 21, 2016, the trial court entered an interim order of court

again directing the parties to comply with the existing custody schedule. The

court continued generally the hearing on Father’s petition to modify legal

custody for medical decisions and Mother’s contempt allegations, directing

that either party could praecipe to reschedule the hearing.            The court

scheduled a review conciliation for May 4, 2017.

      On May 18, 2017, the trial court entered an order amending Father’s

petition to modify legal custody for medical decisions to include a request for

modification of physical custody. The court consolidated Father’s petition with

Mother’s previously filed petition for special relief, contempt, and hearing date,

and indicated that it would schedule a hearing on the petitions once a date

became available.

      Father presented the trial court with an additional petition for

modification of custody on May 26, 2017.        Father averred that Child was

insisting that he live with Father rather than Mother. On June 5, 2017, the

court once again entered an order consolidating Father’s petition with Mother’s

previously filed petition for special relief, contempt, and hearing date. The

court scheduled a hearing on the petitions for October 30, 2017, and October

31, 2017.




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        On October 24, 2017, Mother presented the trial court with a petition

for contempt and to consolidate hearing date. Mother averred that Father had

instructed Child’s psychiatrist to wean him off his current medication in

violation of Mother’s sole legal custody with respect to medical matters.

Mother requested that the court consolidate her petition with the other

petitions awaiting a hearing. The court granted Mother’s request by order

entered October 26, 2017.

        Finally, the trial court conducted a hearing on October 30, 2017 and

October 31, 2017.3        On November 9, 2017, the court entered the order

complained of on appeal. The court found Father in contempt of the physical

custody provisions of its prior orders, sanctioned him $20,000 in counsel fees

payable at $300 per month, and denied his request for modification of

custody. The court found that Father was not in contempt of the legal custody

provisions of its prior orders. The court also awarded Mother five weeks of

custody makeup time with Child.            The court supplemented its order with

detailed findings of fact on November 20, 2017. Also on November 20, 2017,

the trial court modified its November 9, 2017 order slightly in response to an

emergency motion for special relief presented by Father.4 Father presented

the court with a pro se emergency motion for stay and motion to appoint a


____________________________________________


3 Father’s counsel withdrew after filing Father’s second petition for
modification of custody and Father appeared at the hearing pro se.

4   Father’s motion is not contained in the certified record.

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guardian ad litem on November 29, 2017. Father requested that the court

stay its prior order until Child completed counseling and appoint a guardian

ad litem for Child. The court denied Father’s motion on December 1, 2017.

       Father timely filed a pro se notice of appeal on December 6, 2017. That

same day, the trial court directed Father to file a concise statement of errors

complained of on appeal. Father complied by filing a pro se concise statement

on December 14, 2017.5

       In his statement of questions involved, Father lists the following claims:

       A. Did the Court abuse its discretion and/or err as a matter of law
       by denying Father’s Petition for Custody Modification without
       properly considering the desires of Child, who was seventeen (17)
       years old and gainfully employed at the time?

       B. Did the Court abuse its discretion when it sanctioned Father
       $20,000.00 in attorney’s fees without first determining whether
       he afford [sic] to pay it?

       C. Did the Court abuse its discretion by granting Mother’s motion
       in limine to exclude evidence prior to October 22, 2015, only to
       allow Mother to proffer such evidence while denying said
       opportunity to Father?

       D. Did the Court abuse its discretion by improperly considering
       testimony from expert witness Jody Shemansky, which was
       beyond the scope of her established expertise?




____________________________________________


5 Father violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise statement
at the same time as his notice of appeal. We have accepted Father’s concise
statement pursuant to In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009)
(holding that the appellant’s failure to comply strictly with Pa.R.A.P.
1925(a)(2)(i) did not warrant waiver of her claims, as there was no prejudice
to any party).

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J-S25041-18


       E. Did the Court abuse its discretion by considering and giving
       weight to hearsay statements concerning Father's alleged
       disparaging statements to Child concerning Mother?

       F. Did the Court abuse its discretion by using inferring [sic] ill
       intent on the part of Father which was not supported by direct
       evidence but rather by the prejudicial assertions and suppositions
       of biased witnesses?

       G. Did the Court exceed its proper authority by imposing unfair
       and unreasonable affirmative duties on Father to “redirect” and
       “challenge” Child's “paranoid thoughts” at every turn?

Father’s brief at 7-8.

       At the outset, we must address whether Father preserved his claims for

our review. In his concise statement, Father raised only two claims: “Child

. . . wants to live with Father” and “Father can not [sic] afford counsel fees.”

Concise Statement, 12/14/2017 (unnecessary capitalization omitted). It is

well settled that any claim not included in a concise statement is waived. In

re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017).          Therefore, Father

waived his claims relating to the trial court’s evidentiary rulings, including

issues C, D, and E.6


____________________________________________


6 Even if Father had included these claims in his concise statement, he would
have waived them by failing to make timely and specific objections. Father
agreed on the record with Mother’s motion in limine and failed to make any
objections during the custody hearing. See State Farm Mut. Auto. Ins. Co.
v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015), appeal denied, 116 A.3d 605
(Pa. 2015) (quoting Lockley v. CSX Transp. Inc., 66 A.3d 322, 325 (Pa.
Super. 2013), appeal denied, 74 A.3d 127 (Pa. 2013)) (“‘It is axiomatic that
[i]n order to preserve an issue for appellate review, a party must make a
timely and specific objection at the appropriate stage of the proceedings
before the trial court. Failure to timely object to a basic and fundamental
error will result in waiver of that issue.’”).

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      Moreover, Father failed to develop his four remaining claims regarding

the trial court’s custody decision and award of counsel fees in his brief.

Father’s brief is often rambling and difficult to decipher, and he fails to cite

any legal authority other than standards of review and cases dealing with

jurisdiction and the finality of the order on appeal. “‘[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.’”   In re W.H., 25 A.3d 330, 339 n.3 (Pa.

Super. 2011), appeal denied, 24 A.3d 364 (2011) (quoting In re A.C., 991

A.2d 884, 897 (Pa. Super. 2010)).

      Nonetheless, even if Father had not waived his challenges to the trial

court’s custody decision and award of counsel fees, we would conclude that

he is not entitled to relief. 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 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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).




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     When a trial court makes an award of custody, the best interest of the

child is paramount. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014).

The factors to be considered by a court when awarding custody are set forth

at 23 Pa.C.S.A. § 5328(a):


     (a) Factors.--In ordering any form of custody, the court shall
     determine the best interest of the child by considering all relevant
     factors, giving weighted consideration to those factors which
     affect the safety of the child, including the following:

           (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)
           (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



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            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.

            (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.A. § 5328(a).

      With respect to the trial court’s decision to find Father in contempt and

award counsel fees to Mother, our child custody statute provides as follows,

in relevant part:

      (g) Contempt for noncompliance with any custody order.—


            (1) A party who willfully fails to comply with any
            custody order may, as prescribed by general rule, be



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              adjudged in contempt. Contempt shall be punishable
              by any one or more of the following:

                                           ***

                     (v) Counsel fees and costs.

23 Pa.C.S.A. § 5323(g)(1).

       In order to support a finding of civil contempt, the petitioning party must

prove by a preponderance of the evidence: “(1) that the contemnor had notice

of the specific order or decree which he is alleged to have disobeyed; (2) that

the act constituting the contemnor’s violation was volitional; and (3) that the

contemnor acted with wrongful intent.” Coffman v. Kline, 167 A.3d 772,

780 (Pa. Super. 2017) (quoting Sutch v. Roxborough Memorial Hosp., 142

A.3d 38, 67-68 (Pa. Super. 2016), appeal denied, 163 A.3d 399 (Pa. 2016)).

       In this case, the trial court entered detailed findings of fact on November

20, 2017, discussing each of the Section 5328(a) factors7 as well as its finding

of contempt and award of counsel fees. Findings of Fact, 11/20/2017, at ¶

15-121. The court found that Father took advantage of the car accident on

November 15, 2016, by using it to alienate Child from Mother. Id. Father

then used Child’s refusal to return to Mother’s care as an excuse to violate the

prior custody orders. Id.



____________________________________________


7The trial court did not separately address Section 5328(a)(2.1). However,
our review of the record does not reveal any evidence relevant to this factor.

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      The trial court issued a separate opinion on February 5, 2018. In its

opinion, the court indicated that Father’s challenge to its custody decision is

now moot because Child is eighteen years old. Trial Court Opinion, 2/5/2018,

at 16. With respect to its contempt finding and award of counsel fees, the

court reiterated its previous conclusion that Father deliberately alienated Child

from Mother and then refused to return Child to Mother’s care in violation of

its prior orders. Id. at 18-21.

      Initially, we agree with the trial court that Father’s challenge to its child

custody decision is moot.

      As a general rule, an actual case or controversy must exist at all
      stages of the judicial process, or a case will be dismissed as moot.
      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 that case, an opinion
      of this Court is rendered advisory in nature. 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. . . .

In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (citations and quotation

marks omitted).

      As the trial court explained in its opinion, Child turned eighteen in

January 2018 and the custody provisions of the court’s order are no longer in

force. Therefore, even if we were to agree with Father that the trial court

abused its discretion by declining to modify custody, we could not enter an

order that would have any legal effect. See K.W. v. S.L., 157 A.3d 498, 499

n.1 (Pa. Super. 2017) (explaining that this Court would not review an interim




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custody order that was no longer in force, because any claim relating to that

order would be moot).

      Moreover, the record is replete with evidence supporting the trial court’s

finding of contempt and award of counsel fees. At the time of the custody

hearing on October 30, 2017, and October 31, 2017, it was undisputed that

Child had not returned to Mother’s care in nearly a year, since the car accident

on November 15, 2016.       During his testimony, Father described only one

attempt to return Child to Mother. N.T., 10/30/2017 & 10/31/2017, at 310.

Additionally, Father testified that he only punished Child once in an effort to

gain his cooperation.    Id. at 311.    Father explained that he took Child’s

computer away “[f]or a day or two” and then returned it to him. Id. Father

claimed that he did not attempt to punish Child again because “I feel like I’ve

tried everything in my means to make him go there. If I take his computer

away forever because he doesn’t go to his mom’s house, what does that

prove? [Child] is a very strong-willed child.” Id.

      Perhaps the most compelling testimony presented during the hearing

was that of the family’s former therapist, Alyssa Pirain, M.A.        Ms. Pirain

testified that she met with Child, Mother, and Father for a series of therapy

sessions beginning shortly after the car accident. Id. at 12. Ms. Pirain recalled

that Child “was extremely agitated, very angry, [and] very upset” during their

first session. Id. at 14. Child stated that Mother and the other members of

her family “are always secretly drunk” and explained that he received this


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information from Father. Id. at 15. Child also appeared to be upset about

money, stating that he and Father “have no money because mom takes it.”8

Id. Child shouted repeatedly, “mom’s a liar,” and did not want to be in the

same room with her. Id. at 16-17.

        Child became increasingly agitated in subsequent therapy sessions. Id.

at 20, 29.      Ms. Pirain testified that Child “would always look to dad for

confirmation or what he wanted him to say,” but that Father would do nothing

to redirect Child’s paranoid thoughts. Id. at 21-22. Father would not even

look at Mother during sessions. Id. at 23. Ms. Pirain explained, “[Father]

usually put his hand . . . so he didn’t have to see her out of the peripheral

vision. . . . and [Child] followed the same thing but with a pillow.” Id. at 23-

24. Father would say positive things about Mother when Ms. Pirain prompted

him to do so. Id. at 24-25. However, Ms. Pirain suspected that Father was

saying one thing during the sessions and another thing outside of the sessions.

Id. at 25-26. She explained,

        . . . . I think that outside of the room he would say the opposite
        of what he would say in the room because [Child] periodically
        would say, but, dad, you said this, and now dad would say
        something different in the room. So [Child] got very confused,
        and then would get very agitated and upset and angry.

Id. at 25-26.




____________________________________________


8   This appears to be a reference to Father’s child support obligation.

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      Additionally, Father admitted to Ms. Pirain that he was still angry and

resentful toward Mother due to the circumstances of their divorce. Id. at 17-

18, 22. Ms. Pirain testified that Father criticized Mother’s parenting abilities

and accused her of drinking in front of Child. Id. at 17, 22. Father claimed

that he knew Mother was drinking because “he knows her, and he knows her

behaviors.” Id. at 28. Father also admitted that he provided Child with “not

kid friendly information,” but disagreed with Ms. Pirain that this was

inappropriate. Id. at 22-23.

      Ms. Pirain testified that she ultimately ended therapy sessions with the

family because Child would become physically violent “[w]hen I would start to

question [him] as far as being able to love his mother.”       Id. at 29.   She

described an incident during which Child “tried to take my bookshelf and knock

it overtop of me. He was slamming doors. He ripped one of my doors in my

office off the hinges . . . .” Id. Ms. Pirain asked Father to intervene and help

calm Child, but he initially failed to comply. Id. When Father did attempt to

calm Child, he was unable to do so. Id. at 30.

      Thus, the record overwhelmingly supports the trial court’s finding that

Father is in contempt of its prior custody orders. Father incited paranoia and

fear in Child, and then used the resulting parental alienation as an excuse not

to return Child to Mother’s care.     Father’s behavior resulted in a nearly

yearlong ordeal during which Mother incurred over $20,000 in counsel fees.

N.T., 10/30/2017 & 10/31/2017, at 109. It was within the court’s discretion


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to sanction Father by requiring him to pay the fees. Father’s ability to pay is

not a relevant consideration. See Hopkins v. Byes, 954 A.2d 654, 659 (Pa.

Super. 2008) (“We conclude the court did not err or abuse its discretion by

imposing $500 attorney's fees as a sanction, without first ascertaining

mother’s ability to pay.”).

       However, even if Father’s ability to pay were a relevant consideration,

the trial court discussed Father’s financial situation in its opinion. The court

explained that Father is employed as a truck driver, and that he indicated

during an equitable distribution proceeding in 2012 that he earns nearly

$55,000 per year.9 Trial Court Opinion, 2/5/2018, at 20. The court found

that its sanction against Father was not excessive based on his employment.

Id. We also observe that the court ordered Father to pay Mother’s counsel

fees in monthly $300 dollar increments, which will allow Father to pay off the

balance slowly over the course of approximately five and a half years.

       Based on the foregoing, we affirm the trial court’s November 9, 2017

order granting Mother’s petition for contempt, sanctioning Father $20,000 in

counsel fees, denying Father’s petition for modification of custody, and

awarding Mother five weeks of custody makeup time.

       Order affirmed.



____________________________________________


9 This figure is included in Father’s May 21, 2012, pre-trial statement, which
is contained in the certified record. Father does not challenge the accuracy of
this figure on appeal.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2018




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