J-A05028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.J.D.                                     :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    E.K.                                       :
                                               :
                        Appellant              :     No. 1402 WDA 2019

                Appeal from the Order Entered August 15, 2019
       In the Court of Common Pleas of Allegheny County Family Court at
                         No(s): No. FD16-008406-017


BEFORE:        BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                                   FILED MARCH 27, 2020

           E.K. (“Mother”) appeals from the custody order dated August 12, 2019

and entered August 15, 2019, awarding A.J.D. (“Father”) sole legal custody

and primary physical custody of their minor daughter, M.D., born in January

of 2014. The order also provided Mother with one week of domestic vacation

with M.D. each summer and required Mother to immediately submit to an

independent psychological evaluation and subsequent treatment, attend

parenting classes, and pay Father’s counsel fees in the amount of $750.00.

We affirm.

           Mother and Father never married.        The parties resided together with

M.D. until 2016 when Mother and M.D. left the residence.              Father filed a

custody complaint in July of 2016. The parties’ initial consent decree, entered

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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September 27, 2016, granted Mother primary physical custody of M.D., and

Father partial physical custody every Friday at 4:30 p.m. until Monday at 9:00

a.m.

       On November 24, 2017, in what she alleged was an attempt to get

Father’s attention, Mother made suicidal comments to Father.            Father

contacted the police, and involuntarily committed Mother to Western

Psychiatric Institute and Clinic (“WPIC”). Mother was evaluated and released

a few days later, but alleged that, when she sought to regain custody of M.D.,

Father refused. On December 1, 2017, Mother filed an Emergency Motion for

Contempt, and alleged, after weekend visitation with Father, M.D. is angry,

bites and kicks Mother, wets the bed, and generally acts out. Mother alleged

she attempted to voice her concerns to Father, but Father did not respond.

       On December 5, 2017, Father filed an Emergency Motion for Custody

and requested primary physical custody of M.D., subject to partial supervised

physical custody with Mother. Father alleged Mother attempted suicide five

days ago, and was involuntarily committed for psychiatric treatment as a

result. Father alleged that Mother “[e]xhibited bizarre and irrational behavior

at custody exchanges, crying uncontrollably, throwing herself on [F]ather’s

car and berating [F]ather while holding [M.D.].” N.T., 6/10/19, at 106. Father

also alleged that Mother made a report to Allegheny County Children Youth

and Families (“CYF”) that Father abused M.D., but that report was unfounded.

Trial Court Opinion, 10/11/19, at 4. With respect to the incident on November

24, 2017, Father alleged, after he took custody of M.D., he received e-mails

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from Mother that indicated that she took sleeping pills and were suicidal in

nature. Father claimed that, in response, he contacted the police, Mother was

involuntarily committed, and she was released after seventy-two hours, on

November 28, 2017. Father stated that he withheld custody of M.D. because

he was concerned with Mother’s “bizarre behavior and deteriorated mental

state.” N.T., 6/10/19, at 106.

     On June 8, 2018, an order was entered which granted the parties shared

legal custody of M.D. A lengthy and contentious motions history ensued. On

May 17, 2019, Father filed a motion for special relief regarding his vacation

with M.D., and preserving a request for $750.00 in counsel fees. See Trial

Court Opinion, 10/11/19, at 12-13. On May 16, 2019, the trial court entered

an order allowing Father to take M.D. on vacation. Id. at 13.

     The trial court conducted a custody trial on June 10, 11, and 25, 2019.

Father and Mother testified on their own behalf, and both called various

supporting witnesses. Father presented his mother, C.D., and his attorney,

who testified about the request for counsel fees.     Mother presented the

testimony of two friends, J.S. and G.S., and a psychological expert, Eric

Bernstein, Psy.D. In addition, the court considered the testimony of Patricia

Pepe, Ph.D., the court-appointed custody evaluator.

     By memorandum and order dated August 12, 2019, the trial court

addressed each of the sixteen factors enumerated in § 5328(a), and awarded

Father sole legal custody and primary physical custody of M.D., with Mother

having periods of partial physical custody every other weekend. Trial Court


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Order, 8/12/19, at 10. The trial court awarded Mother one week of domestic

travel with M.D. each summer. Id. at 13. Mother was ordered to submit to

an   independent      psychological     evaluation,   comply   with   recommended

treatment, and attend parenting classes. Id. at 13, 15. The trial court also

awarded Father $750.00 in counsel fees in relation to litigating his May 16,

2019 special relief motion. Id. at 15.

       Mother timely filed a notice of appeal and a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Thereafter, the trial

court filed its Rule 1925(a) opinion on October 11, 2019.1

       On appeal, Mother raises the following issues for our review:

       I.     Whether the [t]rial [c]ourt committed an abuse of
              discretion in finding that it was in the child’s best
              interest for Father to be awarded sole legal custody
              and primary physical custody when the evidence at
              trial and the court’s own analysis of the custody
              factors under 23 Pa.C.S. § 5328 does not support such
              a finding.

       II.    Whether the [t]rial [c]ourt committed an abuse of
              discretion and an error of law to limit Mother’s
              vacation periods to one week of domestic travel only.

       III.   Whether the [t]rial [c]ourt committed an abuse of
              discretion and an error of law in requiring Mother to
              obtain an independent psychological evaluation,




____________________________________________


1As we find Mother’s Rule 1925 Statement adequate for our review, we deny
Father’s Motion to Quash, filed on November 6, 2019, challenging it as too
vague.



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              attend parenting classes and pay Father’s counsel fees
              in the amount of $750.00. [2]
Mother’s brief at 9.3

       The scope and standard of review in custody matters is as follows.

              [T]he appellate court is not bound by the deductions
              or inferences made by the trial court from its findings
              of fact, nor must the reviewing court accept a finding
              that has no competent evidence to support it....
              However, this broad scope of review does not vest in
              the reviewing court the duty or the privilege of making
              its own independent determination.... Thus, an
              appellate court is empowered to determine whether
              the trial court’s incontrovertible factual findings
              support its factual conclusions, but it may not
              interfere with those conclusions unless they are
              unreasonable in view of the trial court’s factual
              findings; and thus, represent a gross abuse of
              discretion.
R.M.G., Jr. v. F.M.G., 244, 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting

Bovard v. Baker, 126, 775 A.2d 835, 838 (Pa.Super. 2001)). Moreover,

              [O]n issues of credibility and weight of the evidence,
              we defer to the findings of the trial [court] who has
____________________________________________


2  Mother’s third issue consists of a combination of the fourth and fifth issues
listed in Mother’s Rule 1925 statement. Accordingly, this issue is preserved
but is merely raised another way.

3 At the outset, we observe that Mother raised an additional issue challenging
the weight of the evidence supporting the award of primary physical custody,
but she failed to assert it in her Rule 1925(b) statement. Thus, the issue is
waived. See Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa.Super.
2006) (stating that a failure to preserve issues by raising them both in the
concise statement of errors complained of on appeal and statement of
questions involved portion of the brief on appeal results in a waiver of those
issues); see also In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011); see
also In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017). We,
nevertheless, would find such a challenge lacks merit for the reasons set forth
in the body of the memorandum.

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            had the opportunity to observe the proceedings and
            demeanor of the witnesses.

            The 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.

            R.M.G., Jr., supra at 1237 (internal citations
            omitted). The test is whether the evidence of record
            supports the trial court’s conclusions. Ketterer v.
            Seifert, 902 A.2d 533, 539 (Pa.Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014).
      When awarding any form of custody, the Child Custody Act, 23 Pa.C.S.

§§ 5321–5340, provides an enumerated list of factors a trial court must

consider in determining the best interests of a child:

            (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.



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           (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.

           (15) The mental and physical condition of a party or
           member of a party's household.

           (16) Any other relevant factor.


23 Pa.C.S. § 5328(a)(1)-(16).




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       This Court has stated that, “[a]ll of the factors listed in § 5328(a) are

required to be considered by the trial court when entering a custody order.”

J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original).

The trial court carefully considered the foregoing custody factors and entered

an opinion summarizing its rationale for granting Father primary physical

custody. Of the sixteen custody factors, the trial court determined that eight

factors were either neutral or not applicable, i.e., (a)(2), (5), (6), (7), (10),

(11), (12) and (16); three factors were positive for Father, (a)(1), (4), and

(9)); one factor was negative for Father, (a)(14); and four factors were

negative for Mother, (a)(3), (8), (13) and (15)).4

       Mother’s first contention is whether the trial court committed an abuse

of discretion in finding that it was in M.D.’s best interest for Father to be

awarded sole legal custody and primary physical custody when the evidence

at trial and the court’s own analysis of the custody factors under 23 Pa.C.S.

§ 5328(a) does not support such a finding. Mother argues that the trial court’s

conclusions with regard to factors (1), (3), (4) and (8), are not supported by

the record. For the reasons that follow, we disagree.

       With respect to § 5328(a)(1), which party is more likely to encourage

and permit frequent and continuing contact between the child and another

party, the trial court found that the testimony established that this factor

militated heavily in Father’s favor.



____________________________________________


4 We observe that the trial court did not address factor (a)(2.1), but, as the
trial court found factor (a)(2) was inapplicable to the evidence before it, we
would assume that the trial court found factor (a)(2.1), also regarding abuse,
was inapplicable, and we find nothing in the evidence to suggest otherwise.

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           Father is more likely to encourage and permit
           continuing contact between Mother and the child, and
           that Mother is likely to continue to obstruct the same.
           Father withheld custody of the child from Mother when
           she was committed to WPIC, out of concerns for the
           child’s safety in Mother’s care. This appears to be an
           isolated incident which is unlikely to occur again,
           absent some similar emergency.
Trial Court Memorandum, 8/12/19, at 3. The trial court continued that “Father

offered in evidence many text messages in which he asked Mother to allow

him to FaceTime the child and she refused, saying they were busy or otherwise

unable to talk. He has not been able to communicate with the child using

FaceTime on a consistent basis, despite an Order of Court granting each party

reasonable FaceTime contact when the child is in the other party’s custody.”

Id.   When cross-examined about Mother’s failure to effect FaceTime

communication with Father, Mother testified:

           [Mother]   I had trouble sometimes getting her to
           speak to her father if she doesn’t want to.

           [Father’s Counsel] Sure. So that’s not her decision,
           though. Don’t you understand those are….things that
           you need to make her do. You’re her mother.

           [Mother]    How do you suggest to me to make her do
           that except encouraging her?

           [Father’s Counsel]      You would agree those are
           things that you need to make her do.

           ....

           [Mother]   But how else would you suggest me to
           force my daughter to do that?

           [Father’s Counsel]      I’m not - - ma’am, I’m not
           here - -


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            [Mother]    Do I hit her? Should I hit her?
N.T., 6/11/19, at 241-242.    Conversely, there was testimony that Mother

attempted to FaceTime with M.D. more than thirty times and sent Father more

than forty text messages in one weekend when M.D. was in his care. Mother

proffers that was a “one-time incident.” See Mother’s brief at 16. The trial

court also cited to an incident when Mother agreed to Father’s vacation

request to take M.D. to Mexico with twenty-two family members and then

revoked her permission. Trial Court Memorandum, 8/12/19, at 3. Mother

explains that she revoked her permission because she “had concerns about

the child traveling outside the county.” See Mother’s brief at 16. Father had

to obtain an order authorizing the vacation.       Trial Court Memorandum,

8/12/19, at 3. We discern no abuse of discretion by the trial court in holding

that Father is more likely to encourage and permit contact between M.D. and

Mother pursuant to § 5328(a)(1).

      In reference to § 5328(a)(3), the parental duties performed by each

party on behalf of the child, the trial court determined that there “are some

troubling issues with the competence of Mother’s parenting and her failure to

co-parent with Father.” Trial Court Memorandum, 8/12/19, at 4. The trial

court credited Father’s testimony describing an incident where Mother brought

M.D., wearing only a nightgown and shoes, to a custodial exchange in thirty-

eight degree weather. N.T., 6/10/19, at 40. The trial court cited to testimony

describing an incident that occurred when M.D. was four years old and Mother

thought it was appropriate to allow M.D. to call Father and ask his permission

to extend her time in Mother’s custody because Mother did not “want to be

the person telling her no.” N.T., 6/11/19, at 245. Mother admitted that she


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enrolled M.D. in therapy despite Father’s objection, which the trial court

concluded was an “improper display of unilateral legal custody decision-

making.” Id. at 205; Trial Court Memorandum, 8/12/19, at 5. Based on this

record, and the well-settled principle that determinations regarding weight of

the evidence are within the sole province of the trial court, we discern no

abuse of discretion by the trial court in concluding that “[t]here was no

evidence presented to indicate that Father cannot continue to perform

parental duties.” Id.

        Regarding § 5328(a)(4), the need for stability and continuity in the

child’s education, family life, and community life, the trial court found that

“stability and continuity in the child’s life can best be maintained with Father

enjoying primary custody and Mother enjoying alternating weekends with

evening custody in the off week.” Trial Court Memorandum, 8/12/19, at 5.

The trial court noted that Mother intended to move to Zelienople, Butler

County, and placed weight on the fact that M.D.’s “education will not be

impacted by a change in primary [physical] custody.” Id. As the trial court’s

conclusion that Father is better able to provide stability and continuity for M.D.

is reasonable, we do not disturb the trial court’s findings.

        With respect to § 5328(a)(8), the attempts of a parent to turn the child

against the other parent, the trial court unequivocally stated that “Mother has

attempted to turn [M.D.] against Father in a consistent pattern, the

cumulative effect of which is not known.” Trial Court Memorandum, 8/12/19,

at 6.    The testimony of the court-appointed custody evaluator, Dr. Pepe,

supports the court’s finding.      Preliminarily, Dr. Pepe described parental

alienation as the “psychological manipulation of a child into showing unwanted



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fear, disrespect or hostility toward a parent or other family members.” N.T.,

6/11/19, at 29. Her report indicated that M.D. “feels as if her mother tries to

make her not like her father. . . .” N.T., 6/11/19, at 19. Dr. Pepe added that

M.D. “spontaneously expressed, ‘when I am with mommy, I feel like I don’t

like daddy, but when I am with daddy, I like daddy.’” Id. Dr. Pepe explained

that when a child makes a statement of that sort, “they’re being influenced by

the parent.” Id. Ultimately, she expressed a belief that Mother made “every

attempt” to engage in parental alienation “by the comments that she made to

the child and what the child said. [M.D.] wanting to please her mother, her

repeatedly saying her mother doesn’t like her daddy.” N.T., 6/11/19, at 29.

Notably, Dr. Pepe explained:

            . . .[Mother] is setting a dangerous precedent to
            alienate [M.D.] from her father, and it’s unacceptable
            as appropriate parenting and potentially a current or
            future danger for [M.D.’s] safety both psychologically
            and physically. And much of the literature on parental
            alienation talks about the negative impact that it has
            on children, both presently and in the future.


N.T., 6/11/19, at 35. Dr. Pepe opined that “although [M.D.] was not at the

point yet where she refused to visit her father, I mean, I could see that

occurring at some point with this behavior continuing.” N.T., 6/11/19, at 30.

For all of these reasons, the certified record supports the trial court’s decision

with respect to § 5328(a)(8).

      Mother’s argument also challenges what she characterizes as the trial

court’s insincere application of the custody factors. See Mother’s brief at 23

(“The Court cannot simply play[sic] lip service to the [custody] factors[.]”).

The crux of this assertion is that, while the trial court listed every statutory


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factor and summarized select evidence that supported its conclusion, the

court neglected to discuss the remaining evidence in detail. Id. at 23-24.

This claim fails. It is beyond peradventure that “there is no required amount

of detail for the trial court's explanation; all that is required is that the

enumerated factors are considered and that the custody decision is based on

those consideration.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super.2013).

      Most notably, of the sixteen custody factors, the trial court determined

that none is positive for Mother, and, as such, the evidence weighed heavily

in favor of Father exercising primary physical and legal custody. Trial Court

Memorandum, 8/12/19, at 9. Upon review, the testimony supports the trial

court’s findings. The trial court weighed the entirety of the § 5328(a) factors

in making the custody determination and articulated its considerations in a

manner that informed the parties of the reasons for the custody award.

Mindful of our limited standard of review, we decline Mother’s implicit requests

to revisit the trial court’s credibility determinations and findings of fact that

are supported by the record in order to reassess the weight of the evidence in

her favor. Id. at 334 (“We must accept findings of the trial court that are

supported by competent evidence of record....Ultimately, the test is whether

the trial court’s conclusions are unreasonable as shown by the evidence of

record.”).   As we must defer to the trial court on issues of credibility and

weight of the evidence, and our review of the certified record confirms the

trial court’s conclusions, we discern no basis to disturb its custody decision

based upon Mother’s contrary evidence.

      Mother next asserts that the trial court abused its discretion in limiting

Mother’s vacation periods to one week of domestic travel with M.D. only.



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Specifically, Mother contends that this is “an impermissible restriction on

Mother’s custodial periods, particularly as the [trial court] made no findings,

nor gave any rationale for this restriction, nor made a finding that the absence

of the restriction will have a detrimental impact on the child.” Mother’s brief

at 25.

         The relevant provision provides:

              6. Mother shall be entitled to one (1) week of
              domestic vacation with the child each summer. She
              shall notify Father of her selected dates by May 15th
              of each year.       This Order does not authorize
              international travel. In order for Mother to travel
              internationally with the child, Father must consent to
              the same.
Order, 8/12/19, at ¶ 6.

         In essence, Mother asserts that there was not a clear demonstration

that this restriction on her custodial periods was necessary or in M.D.’s best

interests.    We disagree.    In light of our deferential standard of review in

custody matters generally and mindful of both parents’ ability to petition the

trial court to modify the vacation arrangement if it is unwieldy in application

or susceptible to abuse, we discern no basis to disturb the custody order.

         Next, Mother contends that the trial court erred in requiring Mother to

obtain an independent psychological evaluation, attend parenting classes, and

pay Father’s counsel fees in the amount of $750.00. Preliminarily, we observe

that the argument relating to the required parenting classes is waived because

Mother neglected to present any supporting legal argument in her brief. In

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

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



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

that claim is waived.”). We address the remaining arguments seriatim.

      As it relates to the mental health evaluation, Mother argues that the trial

court cannot “order [her] to disclose her private mental health records” in an

attempt “to obtain information from the back door that cannot be obtained

from the front.” Mother’s brief at 27. Again, we disagree.

      In rejecting Mother’s assertion, the trial court endorsed Dr. Pepe’s

conclusion that “[M.D.] has tremendous confusion about her family” and that

“Mother’s behavior can be improved with counseling to better understand the

effect of her actions on [M.D.].”   Trial Court Memorandum, 8/12/19, at 7.

Specifically, Dr. Pepe recommended that Mother participate in outpatient

psychotherapy, and that Mother and M.D. participate in family therapy to help

Mother provide alternative parenting techniques. She also recommended the

parties undergo new evaluations in six months. N.T., 6/11/19, at 38-39. With

respect to the trial court’s order directing Mother to undergo an independent

psychological evaluation and attend parenting classes, the trial court

reiterated that:

            [S]everal of the custody factors discussed in [its]
            Memorandum that were negative for Mother could be
            addressed by Mother’s participation in a parenting
            class. And, given Mother’s history of mental health
            concerns, and absence of a second opinion regarding
            the same….[the trial court] is justified in ordering
            Mother to obtain an independent evaluation to better
            inform [the trial court] on the current status of
            Mother’s mental health.


Trial Court Opinion, 10/11/19, at 12.




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      Our rules of civil procedure provide for court-ordered physical and

mental examinations of children or parties in actions for custody or visitation.

See Pa.R.C.P. 1915.8. Contrary to Mother’s assertion, Rule 1915.8 does not

empower trial courts to compel parties to disclose their confidential

information to their opponents. As we explained in Gates v. Gates, 967 A.2d

1024 (Pa.Super. 2009), court-ordered mental health evaluations are the

preferred method of determining whether a person’s mental health problems

would affect their child’s best interest.

      Hence, the trial court did not err in ordering an updated psychological

evaluation pursuant to Rule 1915.8 to specifically address Mother’s current

mental health status as it relates to her parenting and care of M.D. See Trial

Court Opinion, 10/11/19, at 12. We highlight that since the court-ordered

psychological evaluation is the least intrusive means to determine how a

parent’s mental health condition will affect a child’s best interest, it is the

preferred method. See Zane v. Friends Hospital, 836 A.2d 25 (Pa. 2003);

Gates, supra.

      Finally, we reject Mother’s challenge to the trial court’s decision to award

Father $750.00 in counsel fees.         A.L.–S. v. B.S., 117 A.3d 352, 361

(Pa.Super. 2015). Our child custody statute provides that a court “may award

reasonable interim or final counsel fees, costs and expenses to a party if the

court finds that the conduct of another party was obdurate, vexatious,

repetitive or in bad faith.” 23 Pa.C.S. § 5339.

      Instantly, the trial court determined that “Mother acted in bad faith

when she informed Father that he would not be able to exercise his properly

noticed vacation time because she had already made plans, for which she did



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not properly provide notice to Father, and for which he had to seek [the trial

court’s] intervention.” Trial Court Memorandum, 8/12/19, at 15; Trial Court

Opinion, 10/11/19, at 13-14. Stated plainly, the trial court could no longer

countenance Mother’s recalcitrance. Accordingly, we find that it was within

the trial court’s discretion to conclude that the imposition of counsel fees was

appropriate.

      For all of the forgoing reasons, we affirm the order.

      Order affirmed. Motion to quash denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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