J-A25005-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

J.V., FATHER,                              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
J.V., MOTHER,                              :
                                           :
                   Appellant               : No. 165 EDA 2015

               Appeal from the Order entered December 9, 2014,
                  Court of Common Pleas, Delaware County,
                         Civil Division at No. 6996-11

BEFORE: PANELLA, DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 20, 2015

        In this custody action, J.V. (“Mother”) appeals from the order of court

awarding J.V. (“Father”) sole legal custody and primary physical custody of

their four-year-old child (“Child”). Following our careful review, we affirm.

        Mother and Father were married in May 2009. Child was born in late

2010.     In September 2011, Mother discovered multiple indications that

Father was involved in sexual relationships with other men.1 She took Child

and fled to her parents’ home in New Jersey. Father filed a custody action in

October of the same year.       Following a custody conference, a temporary



1
  After viewing father’s credit card statements, Mother discovered charges
from hotels and various homoerotic and pornographic websites. Mother then
installed spyware on the computer and unearthed digital evidence of Father’s
activities. Based on what she observed on the computer, Mother feared that
Father had a sexual interest in young boys. She turned the computer over to
the Delaware County District Attorney, but the District Attorney did not file
any charges against Father.
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custody agreement was reached, wherein Mother was given sole legal and

primary physical custody of Child and Father was given supervised visitation

one afternoon each weekend. Father was also further required to submit to a

psycho-sexual evaluation, and the parties agreed that the matter would be

revisited following this evaluation.   From this point until the final custody

hearing nearly three years later in September 2014, the parties filed

numerous emergency petitions and petitions for special relief in which the

alleged that the other party was interfering with his or her custodial periods.

During the pendency of this action, Father’s custodial rights changed

multiple times, increasing to shared physical and legal custody and, for a

time, reverting back to supervised visitation.

      Also of relevance to this appeal, during the pendency of this action,

Mother sought, on multiple occasions, authorizations from Father for the

release of information from various websites and social media sites that

Father visited, as well as email communications from his America On Line

(“AOL”) account.    As part of the custody action, the parties underwent

psychological evaluations by Gerald Cooke, Ph.D. In addition to the psycho-

sexual evaluation mentioned above, which was performed by a Dr. Kevin

McDermott, Father was also ordered to undergo an evaluation by an expert

in risk assessment and mental health.

      At the conclusion of all proceedings, the trial court awarded Father sole

legal and primary physical custody of Child, based in large part on its



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conclusions that Mother perpetually interferes with Father’s rights and

access to Child; that Mother has not evidenced an ability to set aside her

anger at Father for the sake of the best interests of Child; and that Father

has demonstrated the ability to put Child’s best interest first despite his

acrimonious relationship with Mother.2

     This timely appeal follows.   Mother raises five issues for our review,

which we have reordered for purposes of our discussion:

           1. Did the trial court err or abuse its discretion by
              not allowing Mother to obtain emails from AOL
              sent by Father from September 1, 2011 to the
              present, which evidence, if presented to the [trial]
              [c]ourt, would have supported a finding and
              Mother’s belief, that Father exhibited deviant
              behavior which behavior is not in the best
              interests of the Child?

           2. Did the trial court err or abuse its discretion by
              relying on the conclusions of Gerald Cooke and
              Kevin McDermott in concluding that Father’s
              deviant behavior did not pose a risk to the Child
              when Dr. Cooke and Dr. McDermott had not
              reviewed the electronic emails which were only
              obtained from AOL after their reports were
              issued?

           3. Did the trial court err or abuse its discretion in
              relying on the conclusions of Margaret Pruett-
              Saratan MA in concluding that Fathers’ deviant
              behavior posed a very low risk of danger to the
              Child where Ms. Pruett-Saratan was not an expert
              in the area of psycho-sexual evaluation?


2
   We are paraphrasing the three overarching themes of the trial court’s
findings. As it was required to, when making its decision, the trial court
addressed the factors enumerated in 23 Pa.C.S.A. § 5328(a). See Trial
Court Opinion, 12/9/14, at 15-27.


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            4. Did the trial court err or abuse its discretion in
               awarding Father primary physical custody in light
               of the factors set forth in 23 Pa.C.S.A. § 5328(a),
               especially in light of the recommendation of the
               custody evaluator, Dr. Gerald Cooke, who
               recommended equally shared custody?

            5. Did the trial court err or abuse its discretion by
               awarding sole legal custody to Father?

Mother’s Brief at 10-11.

      We begin with Mother’s challenge to the trial court’s denial of Mother’s

request for access to certain email communications. Mother initially sought,

and was granted, an order requiring Father to sign authorizations that would

require AOL to provide her with emails and other information regarding

Father’s activity through his AOL account from August 2010 through

September 1, 2011.      Mother now argues that the trial court abused its

discretion when it denied her subsequent request for authorizations so that

she could obtain emails from September 2, 2011 to the date of her motion.

Mother’s Brief at 43.

      Mother did not include this issue in her Pa.R.A.P. 1925(b) statement of

matters complained of on appeal.3 It is well established that an issue is




3
  In her Rule 1925(b) statement, Mother alleges that the trial court erred in
not finding Father in contempt for failure to “cooperate with court orders
regarding the discovery of information related to his electronic and internet
usage[,]” and that it erred for not permitting her to issue subpoenas to AOL
“regarding Fathers’ deletion of information[.]” Concise Statement of Matters
Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 1/8/15, ¶ ¶ 17, 20.


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waived for purposes of appeal if the appellant does not include it in his or

her Pa.R.A.P. 1925(b) statement. Yates v. Yates, 963 A.2d 535, 542 (Pa.

Super. 2008) (“As this argument was not raised in Father's Rule 1925(b)

statement, it is waived.”); Pa.R.A.P. 1925(b)(4)(vii).

      Next, we turn to Mother’s claim that the trial court erred in relying on

the conclusions of the expert witnesses Dr. Cooke and Dr. McDermott

because their opinions were formulated without reviewing the content of

emails from Father’s AOL account.     Mother’s Brief at 46.    Mother failed to

include this issue in her Pa.R.A.P. 1925(b) statement of matters complained

of on appeal, as well. Accordingly, it, too, is waived. Yates, 963 A.2d at

542; Pa.R.A.P. 1925(b)(4)(vii).

      In her third issue, Mother argues that the trial court erred in relying on

the conclusions of Margaret Pruett-Saratan in rendering its decision.

Mother’s Brief at 49. The precise nature of Mother’s argument is not clear.

Mother seems to argue that because Ms. Pruett-Saratan is not an expert in

psycho-sexual evaluations and did not administer such an evaluation to

Father, she was not qualified to offer an opinion as to whether Father poses

a risk to child.   Id. at 49-50 (citing case law for the proposition that

permitting expert opinion testimony from an unqualified expert is an abuse

of discretion). However, Ms. Pruett-Saratan was not appointed to perform a



Although these issues also involve discovery matters, they are wholly
distinct from the issue Mother presents on appeal.


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psycho-sexual evaluation of Father. The trial court ordered her to perform a

psychological evaluation, and it accepted her as an expert in risk assessment

and mental health, not as a psycho-sexual expert.         Trial Court Order,

5/6/15, at 1; N.T., 5/15/15, at 28. To the extent that Mother argues that

the trial court erred in accepting Ms. Pruett-Saratan’s opinion regarding risk

to Child because she did not perform a psycho-sexual evaluation of Father,

we note that this issue was not included in Mother’s Rule 1925(b) statement,

and therefore has been waived.         We further note, however, that in

conducting her evaluation of Father and formulating her opinion that Father

did not pose a risk to Child, Ms. Pruett-Saratan considered, among many

other items, Dr. McDermott’s psycho-sexual examination and report. N.T.,

5/15/14, at 29, 35-37.4

      Mother properly preserved her remaining claims, which challenge the

trial court’s awards of legal and physical custody, and so we will address the

merits thereof, cognizant of our standard and scope of review:

            We review a trial court’s determination in a custody
            case for an abuse of discretion, and our scope of
            review is broad. M.P. v. M.P., 54 A.3d 950, 953 (Pa.
            Super. 2012). Because we cannot make independent
            factual determinations, we must accept the findings
            of the trial court that are supported by the evidence.
            Id. We defer to the trial judge regarding credibility


4
   To the extent that Mother is arguing that the trial court erred in not
appointing an expert to perform another psycho-sexual evaluation rather
than Ms. Pruett-Saratan, we must find that issue waived because Mother did
not include it in her Rule 1925(b) statement. Yates, 963 A.2d at 542;
Pa.R.A.P. 1925(b)(4)(vii)


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           and the weight of the evidence. Id. The trial judge’s
           deductions or inferences from its factual findings,
           however, do not bind this Court. Id. We may reject
           the trial court’s conclusions, but only if they involve
           an error of law or are unreasonable in light of its
           factual findings. Id. See also J.R.M. v. J.E.A., 33
           A.3d 647 (Pa. Super. 2011); Hanson v. Hanson,
           878 A.2d 127, 129 (Pa. Super. 2005); Landis v.
           Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005).

W.C.F. v. M.G., 115 A.3d 323, 326 (Pa. Super. 2015).

      We begin with Mother’s claim that the trial court erred in awarding

Father primary physical custody. The Domestic Relations Code provides as

follows:

           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.




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              (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.

              (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.




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              (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).

      As required, the trial court considered all of these factors and

explained its findings as to each. See Trial Court Opinion, 12/9/14, at 15-

27. Our exhaustive review of the record reveals that all of the trial court’s

findings are supported by evidence of record.        Mother presently asks this

Court to reject the trial court’s findings (and credibility determinations upon

which these findings are based) in favor of the findings that she proposes.

See Mother’s Brief at 52-66.     We cannot do this.     As set forth above, we

must accept the findings of the trial court that are supported by the evidence

and we must defer to the trial court’s credibility determination. W.C.F., 115

A.3d at 326. See also M.J.M. v. M.L.G., 63 A.3d 331 (Pa. Super. 2013)

(rejecting appellant’s argument urging this Court to reconsider the trial

court’s findings with regard to the § 5328(a) factors).

      Finally, Mother challenges the trial court’s award of sole legal custody

to Father.   Legal custody, Mother recognizes, is defined as “[t]he right to

make major decisions on behalf of the child, including, but not limited to,

medical, religious and educational decisions.”        23 Pa.C.S.A. § 5322(a).

When considering whether an award of shared legal custody is appropriate,

a trial court must consider the following factors:




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             (1) whether both parents are fit, capable of making
             reasonable child rearing decisions, and willing and
             able to provide love and care for their children; (2)
             whether both parents evidence a continuing desire
             for active involvement in the child’s life; (3) whether
             the child recognizes both parents as a source of
             security and love; and (4) whether a minimal degree
             of cooperation between the parents is possible.

M.A.T. v. G.S.T., 989 A.2d 11, 22 (Pa. Super. 2010). Mother argues that

“there is no question that the parties have satisfied the first three

requirements[,]” and challenges the trial court’s conclusion that the conflict

between the parties precludes a finding that they could cooperate. Mother’s

Brief at 41.   Mother emphasizes that “all that is required is a minimal

degree of cooperation between the parties[,]” and contends that “[t]here is

no basis in the record for a finding that even a minimal degree of

cooperation between the parties in not possible.”        Id. (emphasis in the

original).

      Addressing this claim, the trial court set forth the four factors outlined

above and then found as follows:

                   The record in the present matter is replete with
             evidence showing that Mother was not able to isolate
             her personal conflicts with Father from her role as a
             parent to [Child]. For instance, as was addressed in
             this [c]ourt’s Findings of Fact and Conclusions of
             Law, Mother’s actions evidenced her inability to
             make rational decisions about the child’s best
             interests as she was so focused on thwarting
             Father’s contact with the child. Evidence of this
             includes   Mother’s    interference   with    Father’s
             supervised visitation through Media Counseling
             Services, Mother’s altercation with the paternal



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          grandfather prior to Father’s custodial time on
          Father's Day 2013, Mother’s contact with the U.S.
          Department of State in an effort to interfere with
          Father’s ability to hire an au pair, Mother’s engaging
          a private investigator to observe Father’s custodial
          time on Christmas Eve 2013, and the incidents
          surrounding Mother’s step-father's funeral.

                  Furthermore,      this   [c]ourt  heard   ample
          testimony to believe that Mother is so committed in
          her belief that Father is a pedophile and so angry
          with Father for his lack of candor before marriage
          about his sexuality that she is unable to make
          rational decisions with Father regarding [Child’s]
          welfare. Mother subjected Father to three years’
          worth of investigation into his personal affairs
          including turning his personal computer over to the
          Delaware County District Attorney’s Office for
          investigation, obtaining Father’s personal AOL
          account mails, insisting that Father attend multiple
          sessions with various evaluators, and subjecting
          Father to testifying in detail regarding intimate
          details of his sexuality.         It is clear from this
          testimony that Mother is so committed to her belief
          that Father is a pedophile so distracted by her pain
          in finding out that her husband is homosexual that
          she cannot facilitate a decision-making relationship
          with Father that is beneficial to [Child]. This anger
          and inability has not subsided throughout the long
          life of this custody litigation.

                The [c]ourt, in its order, cited many more
          instances that show Mother’s inability to isolate her
          personal conflicts with Father from her role as a
          parent and put [Child’s] best interests at the
          forefront of her life. Mother has made disparaging
          remarks about Father in front of [Child] and she has
          forced the parties to obtain a new doctor for [Child]
          after making outbursts at the doctor's office. Most
          importantly, it is clear that Mother interprets the
          entire controversy in her life as victimizing her as
          opposed to how it affects [Child]. Mother even stated
          at one point in the litigation that she is “the victim



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             here.” Throughout the years of litigation, Mother
             almost exclusively referred to [Child] as “the child”
             rather than by name[,] evidencing her belief that she
             is the focus of the litigation while the welfare of
             [Child] is merely a collateral issue. Based on this
             evidence it is clear that Mother was not able to
             isolate her conflict with [F]ather from her duty as a
             parent and cooperate with Father to make decisions
             that are in the best interest of [Child]. As such, this
             [c]ourt’s decision was reasonable and not an abuse
             of discretion.

Trial Court Opinion, 5/14/15, at 4-6.

      We have thoroughly reviewed the voluminous record in this case and

conclude that it supports the trial court’s findings; accordingly, we cannot

find that the trial court erred. Mother asks us to view her actions “against

the back drop of her belief at the time of the hearings that Father’s behavior

… could pose a danger to the parties’ very young child.” Mother’s Brief at

42. This argument, again, asks us to alter a credibility determination made

by the trial court, which we cannot do. W.C.F., 115 A.3d at 326. It is not

for this Court to recast the light in which Mother acted or opine as to her

motivations. The actions identified by the trial court are borne out by the

record, and it was for the trial court to reject as incredible Mother’s claims

that all such actions were taken only in an effort to protect Child. We cannot

disturb the trial court’s ruling.

      Mother also argues that it was error for the trial court to award Father

sole legal custody because he did not seek sole legal custody and because

the court-appointed custody evaluator, Dr. Cooke, recommended joint legal



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custody. Mother’s Brief at 42. We disagree. In child custody matters, “the

paramount concern of the trial court is the best interest of the child.” R.L.P.

v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015) (quoting S.M. v. J.M., 811

A.2d 621, 623 (Pa. Super. 2002)); see also Warren v. Rickabaugh, 600

A.2d 218, 220 (Pa. Super. 1991) (“In custody disputes the controlling

question and paramount concern of the court is the best interests of the

child; all other considerations are deemed subordinate to the child's

physical, intellectual, moral, and spiritual well-being.”)      As such, the trial

court was not limited to any particular forms of legal or physical custody

(whether they were requested by the parties or not), and it was not bound

to accept the recommendation of an expert witness. Cf. R.L.P., 110 A.3d at

208 (“[T]he parties cannot dictate the amount of weight the trial court

places on evidence. Rather, the paramount concern of the trial court is the

best interest of the child. Appellate interference is unwarranted if the trial

court's consideration of the best interest of the child was careful and

thorough, and we are unable to find any abuse of discretion.”).

      In concluding, we note that here, as in all child custody cases, the trial

court’s final determination was driven in large part by its perceptions of the

parties and their actions. These are the credibility determinations that this

Court is without authority to disturb so long as they are supported by

evidence   of   record.   However,    we      further   note   that   this   custody

determination, like all custody determinations, is always modifiable. G.B. v.



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M.M.B., 670 A.2d 714, 716 n.2 (Pa. Super. 1996) (en banc) (“All custody

orders are subject to modification upon a showing that a change in current

custody arrangements would be in the child’s best interest.”). As such, with

the passage of time and harmonious cooperation within the context of the

current custody arrangement, Mother can ask the trial court to revisit its

determination and consider whether other custodial arrangements would be

in Child’s best interest.5

       Order affirmed.

       Panella, J. and Mundy, J. concur in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




5
    Father’s application for relief, filed August 11, 2015, is denied.


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