J. S17039/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

N.D.J.                                  :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
D.E.J.,                                 :        No. 1609 MDA 2019
                                        :
                        Appellant       :


            Appeal from the Order Entered September 5, 2019,
              in the Court of Common Pleas of York County
                 Civil Division at No. 2015-FC-001144-03


N.D.J.,                                 :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :        No. 1629 MDA 2019
                                        :
D.E.J.                                  :


            Appeal from the Order Entered September 5, 2019,
              in the Court of Common Pleas of York County
                  Civil Division at No. 2015-FC-01144-03


BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 11, 2020

     In these consolidated cross-appeals, D.E.J. (“Mother”), pro se, and

N.D.J. (“Father”) challenge the September 5, 2019 final custody order

(“Custody Order”) entered in the Court of Common Pleas of York County that

awarded shared legal custody of A.D.J., R.L.J., and L.N.J. (collectively,

“Children”) to Mother and Father and primary physical custody of the Children
J. S17039/20

to Father; that found Mother in contempt of the trial court’s July 24, 2018

custody order and imposed sanctions; and that denied Father’s request for

relocation. We affirm.

      The record reflects that Mother and Father married in January 2001.

A.D.J. was born in February 2010; R.L.J. was born in January 2012; and L.N.J.

was born in May 2014. Mother and Father separated on June 18, 2015. On

June 23, 2015, Father initiated the underlying custody action when he filed an

action in divorce and custody against Mother.

      On September 17, 2015, the trial court entered a consent custody order

awarding shared legal and physical custody of the Children to Mother and

Father.1 On November 29, 2017, Father filed a petition for modification and

contempt. Following a hearing, the trial court entered an order of custody on

July 24, 2018 that awarded shared legal custody of the Children to Mother and

Father and primary physical custody of the Children to Father with partial

physical custody rights awarded to Mother. The order also found Mother in

contempt of the September 17, 2015 consent custody order for “willfully

disparaging Father” and imposed sanctions. (Order of court, 7/24/18 at 15.)

Mother filed a timely notice of appeal to this court, which was docketed at

No. 1394 MDA 2018.       On October 5, 2018, this court dismissed Mother’s

appeal for failure to file a docketing statement as required by Pa.R.A.P. 3517.




1 We note that the order is dated September 16, 2015, but was entered on
the docket on September 17, 2015.


                                     -2-
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      On January 17, 2019, Father filed a petition for contempt and

modification, which included a request to relocate. Because the parties were

unable to reach an agreement to resolve the issues raised in Father’s petition,

the trial court entered an interim custody order, pending trial. (Order of court,

2/19/19.2) In the order, the trial court directed that its July 24, 2018 custody

order that awarded shared legal custody of the Children to Mother and Father

and primary physical custody of the Children to Father, subject to Mother’s

partial physical custody rights, remain in effect with certain modifications.

(Id. at 3.) The modifications included prohibiting Mother from being present

at, or transporting the Children to, the Children’s counseling sessions, unless

Mother’s attendance was specifically requested or authorized by the Children’s

therapist, and requiring Mother to sign a release for Mother’s counselor to

speak with the Children’s therapist. (Id.) On February 28, 2019, Father filed

a petition for suspension of Mother’s custodial rights wherein he alleged

Mother’s various violations of the trial court’s July 24, 2018 custody order.

The trial court scheduled a hearing on the petition for April 5, 2019.

      On March 18, 2019,3 the trial court entered an order scheduling the

custody trial to begin on June 20, 2019. On April 3, 2019, the parties filed a

praecipe evidencing their agreement to cancel the hearing on Father’s petition


2We note that the order is dated February 15, 2019, but was entered on the
docket on February 19, 2019.

3The order is dated March 15, 2019, but was entered on the docket on
March 18, 2019.


                                      -3-
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for suspension of Mother’s custodial rights scheduled for April 5, 2019, and

resolve the issue at the custody trial. (Praecipe, 4/3/19.) On April 5, 2019,4

the trial court entered an order directing that all pending issues would be

remanded for determination at the custody trial.

      On May 7, 2019, Mother filed an application for a continuance of the

custody trial because her experts, Deb Salem and Dr. Julie Medlin,5 would be

unable to “finish their reports in time, providing good cause for up to 60 days.”

(Mother’s application for continuance, 5/7/19 at 1, ¶ 3.) Following a status

conference, the trial court granted Mother’s request for a continuance and

rescheduled the custody trial to begin on July 15, 2019, and continue to

July 16, 2019. (Order of court, 5/23/19 at 2.6) The trial court also set aside

the morning of August 2, 2019, to “afford [Mother] an opportunity to timely

secure her expert reports and exchange them and to present testimony from

Miss Salem on that date.” (Id.)

      When trial commenced on July 15, 2019, Father presented an oral

motion in limine wherein he objected to the admission into evidence of

Ms. Salem’s report, as well as her testimony, because Mother failed to timely


4We note that the order is dated April 4, 2019, but was entered on the docket
on April 5, 2019.

5 Mother engaged Ms. Salem, a counselor, to prepare a custody evaluation.
(Mother’s brief at 7.) Mother engaged Dr. Medlin, a psychologist, to conduct
psychological testing. (Id.)

6We note that the order of court is dated May 16, 2019, but was filed on
May 23, 2019.


                                      -4-
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submit the report to Father. (Notes of testimony, 7/15/19 at 4-5.) The record

reflects that following the trial court’s May 23, 2019 grant of Mother’s request

for a continuance of trial, Father agreed to extend the due date of the delivery

of Ms. Salem’s report to July 2, 2019. (Id. at 4.) Thereafter, Father again

agreed to extend the deadline to July 8, 2019. (Id. at 5.) Mother conceded

that she did not submit the report until July 10, 2019, but claimed that her

untimeliness did not prejudice Father; rather, she claimed that Father

objected only because he did not like the conclusions contained in Ms. Salem’s

report. (Id. at 6.) The trial court pointed out that the report was due in June7

and that Father’s counsel twice extended the deadline as a courtesy to Mother,

but Mother still delivered the report 48 hours late. (Id.) As such, the trial

court precluded Ms. Salem’s report and testimony because Mother violated

Pa.R.Civ.P. 1915.8, as well as the trial court’s scheduling order. (Id. at 13.)

      The trial court heard evidence on July 15 and 16, 2019. Trial was then

recessed until August 2, 2019, at which time the trial court would hear expert

evidence. On July 16, 2019, Mother filed another application for continuance




7 Pa.R.Civ.P. 1915.8 requires that a party that intends to introduce an expert
report regarding a physical and/or mental examination in a custody case to
deliver the report to the trial court and the opposing party at least 30 days
before trial. Here, trial was scheduled to commence on July 15, 2019. As
such, but for Father’s grant of two extensions, Ms. Salem’s report was due on
June 17, 2019. We further note that the 30th day prior to the start of trial
was June 15, 2019, which fell on a Saturday. Whenever the last day of any
period of time referred to in any statute falls on a Saturday, Sunday, or legal
holiday, such day is omitted from the time computation. See 1 Pa.C.S.A.
§ 1908.


                                     -5-
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wherein she stated that “Dr. Medlin is not available to testify on August 2,

2019 and her testimony is necessary.” (Mother’s application for continuance,

7/16/19 at 1, ¶ 3.) By order entered July 18, 2019, the trial court denied

Mother’s request for continuance, noting Father’s opposition. (Order of court,

7/18/19.8) On July 23, 2019, Mother filed a motion to request an interlocutory

appeal to this court and an application for supersedeas pending appeal to

this court. The motions court denied the motion as premature because trial

was not complete. (Order of court, 8/1/19.)

      When trial resumed on August 2, 2019, Mother renewed her request for

an interlocutory appeal.    (Notes of testimony, 8/2/19 at 4.)    Mother also

informed the trial court that Dr. Medlin would not be available to testify and

again requested a continuance. (Id. at 10-11.) The trial court denied both

requests. (Id. at 12-14.)

      Following entry of the Custody Order, Mother filed a timely notice of

appeal and a concise statement of errors complained of on appeal pursuant to

Rule 1925(a)(2)(i). Father then filed a timely notice of cross-appeal, together

with a Rule 1925(a)(2)(i) statement, which was docketed at No. 1629 MDA

2019. The trial court filed a Rule 1925(a)(2)(ii) opinion. By order entered on

October 24, 2019, this court sua sponte consolidated Mother’s appeal and

Father’s cross-appeal. (Order of court, 10/24/19.)




8 We note that the order of court is dated July 17, 2019, but was entered on
the docket on July 18, 2019.


                                     -6-
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     In her appeal of the Custody Order, Mother raises the following issues:

          1.    Did the trial court commit an error of law or
                abuse of discretion when applying Pa. R.C[iv].P.
                1915.8(b) and Pa. R.C[iv].P. 1915.4, refusing to
                allow Deb Salem, MHS, CAACD, LPC, to testify
                as an expert?

          2.    Did the trial court commit an error of law or an
                abuse of discretion when interpreting and
                applying Pa. R.C[iv].P. 216 and Pa. R.C[iv].P.
                1915.4, refusing to allow a continuance to
                procure the testimony of Dr. Julie Medlin?

          3.    Did the trial court abuse her discretion when
                appointing Father as sole legal custodian for the
                purpose of enrolling the [C]hildren with a new
                counseling practice, though Father is the parent
                who has been unwilling to work toward
                compliance with this requirement?

          4.    Did the trial court abuse her discretion in failing
                to place adequate safeguards on the [C]hildren
                when exposed to a child known to have engaged
                in prior sexual acts with the [C]hildren?

          5.    Did the trial court abuse her discretion in
                ordering Mother’s partial physical custody to be
                subject to “immediate termination” if Mother
                discusses the children’s prior sexual trauma
                with her [C]hildren or any topic with “sexual
                themes” where the [C]hildren may hear?

          6.    Did the trial court abuse her discretion in
                ordering both a release to Father of Mother’s
                mental   health    records   and    a specific
                psychological treatment for Mother?

          7.    Did the trial court abuse her discretion in finding
                Mother in contempt of court and ordering her to
                pay a portion of Father’s attorney fees?

          8.    Did the trial court commit an error of law or
                abuse her discretion in ordering automatic


                                   -7-
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                  restrictions on Mother’s visitation as an
                  additional punishment if Mother does not timely
                  comply with the consequences ordered on her
                  for being found in contempt of court, namely
                  enrollment in and completion of a specific
                  training program?

            9.    Did the trial court abuse her discretion in her
                  analysis of the child’s best interest factors and
                  the ultimate conclusion appointing Father as
                  primary custodian of the [C]hildren, subject to
                  Mother’s partial custody?

Mother’s brief at 3.

      In custody cases under the Child Custody Act (“the Act”), 23 Pa.C.S.A.

§§ 5321-5340,

            [w]e review the trial court’s custody order for an
            abuse of discretion. We defer to the trial court’s
            factual findings that are supported by the record and
            its credibility determinations. However, we are not
            bound by the trial court’s deductions or inferences,
            nor are we constrained to adopt a finding that cannot
            be sustained with competent evidence. In sum, this
            Court will accept the trial court’s conclusion unless it
            is tantamount to legal error or unreasonable in light
            of the factual findings.

            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
            which legitimately have an effect upon the child’s
            physical, intellectual, moral, and spiritual well-being.

M.G. v. L.D., 155 A.3d 1083, 1091 (Pa.Super. 2017), appeal denied, 169

A.3d 522 (Pa. 2017) (internal citations and quotation marks omitted).

      In her first and second issues, Mother claims that the trial court

misapplied certain Pennsylvania Rules of Civil Procedure.



                                     -8-
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        “The correctness of [a] trial court’s application of a Rule of Civil

Procedure raises a pure question of law. As with all questions of law, our

standard of review is de novo and our scope of review is plenary.” Harrell v.

Pecynski, 11 A.3d 1000, 1003 (Pa.Super. 2011) (internal citations omitted).

        With respect to Ms. Salem, Mother claims that the trial court misapplied

Rules 1915.8(b) and 1915.4 when it precluded her testimony. With respect

to Dr. Medlin, Mother claims that the trial court misapplied Rule 216, as well

as Rule 1915.4. Mother does not explain why she contends that the trial court

misapplied Rule 216. Rather, Mother states that “the arguments of these two

issues [are] the same” and she “will not repeat them.” (Mother’s brief at 15.)

Because Mother wholly fails to set forth an argument regarding her claim of

misapplication of Rule 216, Mother waives that aspect of her second issue.

See Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923,

932 n.1 (Pa.Super. 2013) (reiterating that failure to set forth legal argument

results in waiver).

        Rule 1915.8 sets forth the procedural rules regarding physical and

mental examinations in custody actions. Rule 1915.8(b) requires that “[a]ny

report which is prepared at the request of a party, with or without a court

order, and which a party intends to introduce at trial, must be delivered to the

court    and   the    other   party   at    least   thirty   days   before   trial.”

Pa.R.Civ.P. 1915.8(b) (emphasis added).             Rule 1915.4 sets forth the




                                           -9-
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procedural rules regarding the prompt disposition of custody cases.

Rule 1915.4(b) provides, in pertinent part:

            Prompt Disposition of Custody Cases

            ....

            (b)    Listing Trials Before the Court. Depending
                   upon the procedure in the judicial district, within
                   180 days of the filing of the complaint either the
                   court shall automatically enter an order
                   scheduling a trial before a judge or a party shall
                   file a praecipe, motion or request for trial,
                   except as otherwise provided in this subdivision.
                   If it is not the practice of the court to
                   automatically schedule trials and neither party
                   files a praecipe, motion or request for trial
                   within 180 days of filing of the pleading, the
                   court shall dismiss the matter unless the moving
                   party has been granted an extension for good
                   cause shown, which extension shall not exceed
                   60 days beyond the 180 day limit.

Pa.R.Civ.P. 1915.4(b); see Harrell, 11 A.3d at 1005 (Pa.Super. 2011)

(affirming order dismissing custody action based on Rule 1915.4, which

requires dismissal of action if trial not scheduled within 180 days of filing of

pleading or if moving party has not been granted extension for good cause

shown); see also Dietrich v. Dietrich, 923 A.2d 461 (Pa.Super. 2007)

(vacating custody order where father did not request trial within 180-day

period and no extension of time was granted).

      Here, Mother contends that because trial began within 180 days of

Father’s filing of the action and because Rule 1915.4(b) permits a 60-day

extension, the trial court should have granted Mother’s continuance because



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“[t]here was plenty of time remaining in the 45 days the trial court had to

complete the trial once it began.”       (Mother’s brief at 17.)   Mother further

claims that a continuance would give Father “additional time to prepare his

rebuttal if needed.” (Id. at 13.) Although Mother claims that the trial court

misapplied the rules, it is Mother who misapprehends them.

      Contrary to Mother’s assertion, Rule 1915.4 does not require a court to

decide a custody case within a 180-day time period with an additional 60 days

for a continuance. Rather, it requires dismissal if trial has not been scheduled

within 180 days of the filing of the pleading or if the moving party has not

been granted an extension for good cause shown. Harrell, 11 A.3d at 1005.

Rule 1915.4 favors the prompt disposition of custody cases, which is

consistent with the fundamental concern in custody cases, which is the best

interest of the child. Here, the trial court granted Mother one continuance for

the start of trial because Ms. Salem’s report was not yet prepared. Father

then agreed to allow Mother two extensions for delivery of the report.

Nevertheless,   Mother    failed   to    timely   deliver   Ms.   Salem’s   report.

Consequently, the trial court prohibited her testimony for Mother’s violation of

Pa.R.Civ.P. 1915.8, as well as its scheduling order. On August 2, 2019, the

day scheduled for expert testimony, Mother informed the trial court that

Dr. Medlin was unavailable and Mother requested a continuance, which the

trial court denied. Mother entirely fails to explain how the trial court abused

its discretion in precluding Ms. Salem’s testimony and denying her request for



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a continuance of Dr. Medlin’s testimony.         Rather, Mother misinterprets

procedural rules in an attempt to convince this court that there was additional

time for Mother to present her case. Mother’s argument is at odds with the

applicable rules of procedure and the decisional law of this Commonwealth.

We discern no abuse of discretion by the trial court in denying Mother’s request

to keep the record open for an additional 45 days so that Ms. Salem’s untimely

report and testimony could be admitted and so that Dr. Medlin may appear on

a future date.

      In her third issue, Mother claims that the trial court abused its discretion

when, despite awarding shared legal custody, it granted Father the exclusive

right to consent to counseling treatment for the Children because, according

to Mother, “Father is the parent who has been unwilling to work toward

compliance with this requirement.” (Mother’s brief at 17.)

      In considering the best interest of the child factors,9 the trial court

specifically found that, with respect to Factor 10, which party is more likely to




9 In custody disputes, trial courts are statutorily required to consider the
16 factors set forth in the best-interest test when determining the child’s best
interests. See 23 Pa.C.S.A. § 5328(a) (“[i]n ordering any form of custody,
the court shall determine the best interests of the child by considering all
relevant factors . . . .”); see also A.V. v. S.T., 87 A.3d 818, 821 (Pa.Super.
2014) (reiterating that “Section 5328 provides an enumerated list of
sixteen factors a trial court must consider in determining the best interests of
the child or children when awarding any form of custody.”).

Section 5328 of the Child Custody Act sets forth the 16-factor best-interest
test, as follows:



                                     - 12 -
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          § 5328.     Factors to consider when awarding
          custody

          (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.

                (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.



                                   - 13 -
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               (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 -
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attend to the daily physical, emotional, developmental, educational, and

special needs of the children, that

            [even t]hough Mother has testified that she
            “advocates” for the Children, her conduct has been
            focused on tearing down the relationship between
            Father and the Children and interfering with the
            Children’s relationship with their therapist.     The
            current therapist testified that the Children would
            need a new therapist due to Mother’s efforts to
            actively sabotage the therapeutic relationship by
            rejecting “a collaborative therapeutic relationship.”
            The [trial c]ourt accepts as credible the testimony
            from the therapist, and Father, that Mother discussed
            sexual issues involving the Children in the Children’s
            presence at therapy despite admonishment from the
            therapist to desist. While Father has been cooperative
            with the therapist, Mother rejects the opinions and
            recommendations of the therapist as well as any other
            expert that does not reflect her views.

Trial court opinion, 9/5/19 at 18.

      When considering the mental condition of Mother under Factor 15, the

trial court noted that “[t]estimony was presented regarding alleged mental

health conditions of Mother.” (Id. at 20.) Additionally,




                  (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.

42 Pa.C.S.A. § 5328(a).


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            Mother is in therapy at the present time, though she
            has failed to engage in the therapy previously directed
            as was recommended by her treatment provider at the
            last trial. Mother continues to engage in the same
            conduct which has previously caused [the trial c]ourt
            to impose a restriction in her time with her Children
            to try to protect their mental health and reduce her
            negative influence.

Id. When considering Factor 16, which permits the trial court to consider any

other relevant factor, the trial court found the following relevant:

            Father filed a petition for contempt of this Court’s
            Order of July 24th, 2018 with regard to the
            requirement that the parents cooperate with
            counseling for the Children. Credible testimony from
            the therapist illustrates that Mother engaged in a
            course of conduct to undermine the therapeutic
            relationship and failed to cooperate with therapy.
            Mother discussed [A.J.’s] and [R.J.’s] past sexual
            conduct in their presence despite the therapist’s
            admonishment that Mother should desist, which was
            corroborated by Father. When the therapist did not
            agree with Mother’s opinions, Mother’s conduct
            became so antagonistic Mother was banned from the
            therapist’s practice. As a result, the therapist is no
            longer able to maintain a positive therapeutic
            relationship with the entire family and believes the
            Children should engage with a new therapist. This
            conduct is in direct violation of the prior Order.

            The [trial c]ourt is concerned about Mother’s
            continued inappropriate discussion of sexual and body
            themes with the Children. [The trial c]ourt found
            Mother in contempt for this same conduct in [its] last
            Order entered July 24, 2018 and ordered Mother to
            undergo counseling to address those issues and
            Mother has failed to comply.            [The trial c]ourt
            therefore finds again that Mother has engaged in
            willful conduct for the purpose of interfering with
            [c]ourt-ordered therapy and has continued to discuss
            these issues with or in the presence of the Children in
            direct and willful violation of [the trial c]ourt’s [o]rder.


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            Though the [trial c]ourt does not find it necessary to
            suspend Mother’s rights today, absent strict
            compliance with the terms of the Order which are
            imposed to assure the safety of the Children, the
            custodial time with Mother will need to be supervised
            to assure that she does not continue to damage their
            mental health or relationship with Father.

Id. at 20-21.

      We have thoroughly reviewed the record in this case.            The record

supports the trial court’s factual findings and its legal conclusion that it is in

the Children’s best interests for Father to select their counselor. We discern

no abuse of discretion.

      Mother next claims that the trial court abused its discretion when it failed

to place adequate safeguards on the Children when they are exposed to

C.D.,10 the minor male child of Father’s fiancé, who engaged in prior sexual

acts with A.J. and R.J. Preliminarily, we note that in her argument on this

issue, Mother refers us to texts on child sexual abuse and incest and also

attaches to her brief an appendix of “secondary source material.” (Mother’s

brief, Appendix E.) “It is black letter law in this jurisdiction that an appellate

court cannot consider anything which is not part of the record in this case.”

Eichman v. McKeon, 824 A.2d 305, 316 (Pa.Super. 2003) (citation omitted);

see also Pa.R.A.P. 1921 (“The original papers and exhibits filed in the lower

court, paper copies of legal papers filed with the prothonotary by means of




10The record reflects that at the time of trial, C.D. was approximately eight
years old. (Notes of testimony, 8/2/19 at 20.)


                                      - 17 -
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electronic filing, the transcript of proceedings, if any, and a certified copy of

the docket entries prepared by the clerk of the lower court shall constitute the

record on appeal in all cases.”). Therefore, we will not consider any materials

that are not part of the certified record on appeal.

      In its opinion, and with respect to Father’s request for relocation, the

trial court noted that although Mother continues to raise concerns about sexual

incidents that occurred between C.D. and A.J. and R.J., the incidents occurred

over a year ago, no additional incidents have occurred since then, and neither

Father nor the Children’s therapist believes the Children are currently at risk.

(Trial court opinion, 9/5/19 at 12-13.) Therefore, the trial court determined

that C.D. did not pose a risk of harm to the Children. Nevertheless, the record

reflects that the trial court entered an order on June 26, 2018, that required

that any contact between the Children and C.D. be supervised until further

order. (Order of court, 6/26/18). Nothing in the record shows that the trial

court vacated or modified the June 26, 2018 order. Therefore, Mother’s claim

that the trial court failed to safeguard the Children when they are in C.D.’s

presence lacks record support.

      Mother next complains that the trial court abused its discretion when it

included in its Custody Order that “[i]n the event that Mother engages in any

discussion with, or in the hearing distance of, the Children regarding sexual

themes, then her periods of custody shall immediately terminate and the

Children shall return to Father or his designee.”       (Custody order at 20;



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see also Mother’s brief at 23-24.)       Mother claims that this constituted an

abuse of discretion because the trial court entered this part of the order

without a fully developed record because it prohibited Ms. Salem and

Dr. Medlin from testifying.       We have disposed of Mother’s arguments

regarding her expert witnesses, and we decline Mother’s invitation to address

them again.

        Mother next claims that the trial court abused its discretion “in ordering

both a release to Father of Mother’s mental health records and a specific

psychological treatment for Mother.” (Mother’s brief at 26.) The challenged

portion of the Custody Order states:

              Mother shall participate in counseling, at her expense,
              and with the qualified therapist of her choosing.
              Counseling should initially focus on insight and
              awareness to assist Mother with viewing alternative
              explanations and effective control of her anger.
              Mother’s counseling shall specifically address the issue
              of her obsession with and views on the Children’s prior
              inappropriate conduct and she shall work with the
              therapist to develop proper coping mechanisms and
              appropriate communication skills to utilize with the
              Children.    The new counselor shall specifically
              consider the E[MD]R[11] therapy previously ordered
              by this Court and determine whether such therapy is
              appropriate to address Mother’s conduct. Mother shall
              comply with treatment recommendations of the
              therapist. If the therapist determines that EMDR
              therapy is not appropriate, Mother shall request
              a report from the therapist detailing the
              reasoning for his/her findings. That report shall
              be provided to Father’s counsel within thirty (30) days
              of any request, Mother shall execute a release to


11   Eye Movement Desensitization and Reprocessing therapy.


                                       - 19 -
J. S17039/20


            authorize Father to verify her compliance with this
            provision.

Custody Order at 10 (emphasis added).

      Contrary to Mother’s claim, the Custody Order did not require Mother to

sign a release so that Father could obtain her mental health records.       The

order clearly states that if Mother’s new therapist determines that

EMDR therapy is not appropriate for Mother, Mother must request that the

therapist issue a report detailing the reasons as to why EMDR therapy is not

appropriate for Mother. It is that report, and only that report, that shall be

provided to Father’s counsel.     Moreover, although Mother describes the

court-ordered counseling as “involuntary,” we note that Section 5333 of the

Custody Act authorizes a trial court to require the parties to attend counseling

as part of a custody order. 23 Pa.C.S.A. § 5333(a). We further note that

Mother provides no argument as to why a requirement that she undergo

counseling would not be in her Children’s best interests. We discern no abuse

of discretion.

      In her seventh issue, Mother claims that the trial court abused its

discretion in finding Mother in contempt of its July 24, 2018 custody order and

ordering her to pay a portion of Father’s attorney’s fees.      (Mother’s brief

at 29.) In her argument on this issue, Mother claims that the July 24, 2018

custody order “is very clear in certain prohibitions and very vague in others.”

(Id. at 30.) Mother then sets forth her interpretation of various provisions of

the July 24, 2018 custody order and testimony from the custody trial in order


                                     - 20 -
J. S17039/20

to convince this court that she was not in contempt. To the extent that Mother

claims that certain provisions of the July 24, 2018 custody order are

unenforceable because she was uncertain of the prohibited conduct due to

vague and indefinite conditions of the order, Mother waives this issue for

failing to raise it with the trial court.   See Pa.R.A.P. 302(a) (stating that

“[i]ssues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”). To the extent that Mother requests that we reweigh

the evidence in order to reach her desired result, we decline Mother’s

invitation.   Where, as here, the record supports the trial court’s factual

findings, we defer to the trial court. See M.G., 155 A.3d at 1091.

      In her eighth issue, Mother complains that the trial court abused its

discretion in “ordering automatic restrictions on [her] visitation as an

additional punishment if Mother does not timely comply with the consequences

ordered on her for being found in contempt of court, namely enrollment in and

completion of a specific training program.” (Mother’s brief at 33.)

      The record reflects that the trial court found Mother in contempt for

violating its July 24, 2018 custody order “for willfully disparaging Father,

continuing to discuss sexual topics with and in the presence of the Children,

and failing to cooperate with the Children’s therapy as required.” (Custody

Order, at 19.) In anticipation of Mother’s continued violations of its orders,

the trial court included a provision that if “Mother continues to violate [the

trial c]ourt’s [o]rders and continues to engage in a course of conduct designed



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J. S17039/20

to incite conflict between the parties and alienate the Children from Father,”

Mother shall participate in high-conflict behavioral skills training. (Id.) The

trial court also ordered that if Mother did not complete the training, then her

rights of partial physical custody would be supervised. (Id. at 20.) The trial

court further ordered that if “Mother engages in any discussion with, or in

hearing distance of, the Children regarding sexual themes, then her periods

of custody shall immediately terminate and the Children shall return to Father

or his designee.” (Id.)

      Mother requests us to inquire into the propriety of future sanctions in

the event that Mother violates the Custody Order.          Because there is no

violation of the Custody Order before us that resulted in a finding of contempt

and imposition of sanctions set forth in the Custody Order, a review of this

issue would be premature and improper.

      In her final issue, Mother claims that the trial court abused its discretion

when analyzing the best-interest factors.

      At the outset, we note that the trial court found that Factor 2 (past

abuse), Factor 3 (parental duties performed by each party); Factor 5

(availability of extended family); Factor 7 (well-reasoned preference of child);

Factor 11 (proximity of parties’ residences); and Factor 12 (ability to care for

child) weighed in favor of neither party. The trial court found that Factor 6

(child’s sibling relationship) favored keeping the Children on the same




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J. S17039/20

schedule with supervision. The trial court determined that Factor 14 (drug or

alcohol abuse) was not an issue.

      The trial court determined that the following factors weighed in Father’s

favor: Factor 1 (which party more likely to encourage and permit frequent

contact between child and other party); Factor 9 (which party most likely to

maintain loving, stable, consistent relationship with child adequate for child’s

emotional needs); Factor 10 (which party more likely to attend to daily

physical, emotional, developmental, educational, and special needs of child);

Factor 13 (level of conflict between parties and willingness and ability to

cooperate with one another); Factor 15 (mental and physical condition of

party); and Factor 16 (any other relevant factor). With respect to Factor 13,

the trial court noted that it weighed “heavily” in Father’s favor. (Id. at 19-20).

      Mother specifically complains that the trial court abused its discretion in

finding that Factor 2 (which party can better provide adequate physical

safeguards and supervision) and Factor 12 (each party’s availability to care

for the child) to be neutral and Factor 13 (level of conflict between the parties)

to weigh heavily in Father’s favor.

      With respect to Factor 2, the trial court found that:

            Mother continues to make allegations that appear, by
            all testimony, to be baseless. Though Mother alleges
            that Father has left the Children unsupervised with
            [C.D.] in violation of the Order, she failed to present
            any evidence of this claim. Evidence she did present
            involved an incident where only [A.J.] and [R.J.] rode
            bikes to a park alone without helmets. While the
            Court recognizes that the Children’s lack of


                                      - 23 -
J. S17039/20


             appropriate safety gear at Father’s house is
             concerning, it is not a direct violation of the Order and
             does not indicate a risk of harm or abuse in Father’s
             home.     The Court has imposed a supervisor
             requirement as it relates to the Children’s contact with
             [C.D.] and will address better safeguards and
             supervision by each parent in the accompanying
             Order. This factor does not weigh in favor of either
             party.

Id. at 14-15.

      With respect to Factor 12, the trial court found that

             neither parent has extended family available to assist
             with the children. Both parents testified that, under
             the current circumstances, they are each available to
             pick up the Children from school and care for them if
             needed. The Children also have before and after
             school care. It is clear, however, from the evidence
             presented that the Children’s negative behavior and
             delinquent acts warrant an increase in the supervision
             which will be addressed in the accompanying Order.
             This factor is neutral.

Id. at 19.

      With respect to Factor 13, the trial court found that

             [t]here is a high level of conflict between the parties,
             largely as a result of Mother’s conduct, but also due
             to Father’s approach to the conflict. Though Father
             has requested that Mother’s rights be suspended, it is
             in response to Mother’s conduct exacerbating an
             already difficult situation. Mother failed to cooperate
             with the Children’s court-ordered counseling,
             continues to openly disparage Father with accusations
             of a “pornography addiction[,”] and continues to
             rehash the prior inappropriate conduct by [A.J.] and
             [R.J.] with [C.D.] in order to prevent the families and
             the Children from moving on. It is apparent to the
             [trial c]ourt that Mother requires more therapeutic
             intervention as there are safety concerns related to
             her conduct toward the Children, Father, however,


                                      - 24 -
J. S17039/20


            does not even attempt to co-parent with Mother as it
            relates to the Children’s care. At some point, the
            parties must work together to consistently parent the
            Children. This factor heavily favors Father and a
            directive for the parties to engage in co-parenting
            counseling.

Id. at 19-20.

      We have thoroughly reviewed the record in this case and conclude that

there is no reason to disturb the Custody Order. The trial court thoroughly

considered the evidence and made appropriate determinations on credibility

and weight.      The trial court applied all of the Section 5328(a) factors and

concluded that it is in the best interests of the Children that shared legal

custody of the Children be awarded to Mother and Father and primary physical

custody of the Children be awarded to Father. The record supports the trial

court’s findings that formed the basis of its decision and its conclusions are

reasonable as demonstrated by the evidence. Therefore, no relief is due.

      In his cross-appeal, Father raises the following issues:

            1.      [Whether t]he trial court erred as a matter of
                    law in applying the relocation factors and case
                    law governing relocation in a child custody
                    case[?12]

            2.      [Whether t]he trial court erred in making a
                    finding of fact in relation to the question of
                    preserving the relationship between the
                    non-relocating party and the [C]hildren when it
                    indicated:




12 The record reflects that Father sought to relocate from York, Pennsylvania
to the Hummelstown/Hershey area. (Custody Order, at 11.)


                                      - 25 -
J. S17039/20


                     “Father    has    proposed    adding
                     additional holidays and more time
                     over summer vacations, however it
                     is the loss of the regular contact
                     that is the issue. Father has not
                     given significant thought to how his
                     relocation would affect [M]other’s
                     time with the [C]hildren nor does he
                     have a concrete plan[”?]

          3.   [Whether] the trial court erred in making a
               finding of fact in relation to the question of
               whether the relocation will enhance the general
               quality of life of the party seeking the relocation
               when it indicated:

                     “However,     Father’s   work    is
                     currently accommodating him by
                     providing an office in York County
                     so we do not find this reasoning
                     credible. Father can, and currently
                     does, work from York and could
                     continue to do so[”?]

          4.   [Whether t]he trial court erred in making a
               finding of fact that the proposed move to
               Hummelstown/Hershey area from York was “an
               extreme distance” which would significantly
               impact Mother’s rights to partial custody[?]

          5.   [Whether t]he trial court erred in making a
               finding of fact in relation to whether the
               relocation will enhance the general quality of life
               for the [C]hildren by indicating:

                     “The majority of the testimony from
                     both parents was centered in the
                     past, rather than looking forward to
                     what would be best for the
                     [C]hildren[”?]

          6.   [Whether t]he trial court erred in its analysis
               when it indicated:



                                  - 26 -
J. S17039/20


                        “Considering all of the factors, the
                        [trial] court finds that overall that
                        Father has failed to carry his
                        burden.       Father’s purpose in
                        relocating is clearly to benefit the
                        travel time of his fiancée with little
                        thought given as to whether the
                        relocation    would    provide   any
                        measurable       benefit    to    the
                        [C]hildren. Further, the relocation
                        would significantly impact Mother’s
                        custody and Father proposes no
                        viable solutions[”?]

Father’s brief at 4-6 (emphasis omitted).

      At the outset, we note that Pa.R.A.P. 2136 addresses briefs in cases

involving cross-appeals. In a cross-appeal, the moving party is deemed the

appellant for purposes of Chapter 21 of the Rules of Appellate Procedure,

which addresses briefs and reproduced records. Because Father is deemed

the appellant in his cross-appeal, Father was required to adhere to

Pa.R.A.P. 2119, which requires that the argument section of his brief be

divided into as many parts as there are questions to be argued and have at

the head of each part the particular point treated therein. Pa.R.A.P. 2119(a).

      Here, even though Father raises six issues in his statement of questions

involved, Father states that he “will divide his argument into two distinct

sections, the first encompassing the trial court’s findings and the second

involving the application of the findings to the custody relocation statute and

case law.”   (Father’s brief at 16.)    Father further states that “the matters

complained of on appeal numbers two, three, four, and five will be argued



                                       - 27 -
J. S17039/20

together in the first part of the argument, and numbers one and six will be

argued together in the second part of the argument.” (Id.) Father has clearly

violated Rule 2119(a), and this violation hampers an issue-by-issue review.

        Notwithstanding this violation, we note that in the first section of his

argument, Father does nothing more than set forth select portions of

testimony in an effort to convince this court to reach a different result. We

have thoroughly reviewed the record in this case. The record supports the

trial court’s factual findings, and we will not disturb them.        In the second

section of his brief, Father sets forth the trial court’s analysis of certain

relocation factors and then offers his opinion as to why the analysis was

incorrect. For example, Father points out that the trial court determined under

relocation    Factor 2   (impact   relocation   will   have   on   child’s   physical,

educational, and emotional development)13 that because relocation would


13   With respect to relocation, the court must consider the following factors:

              (1)   The nature, quality, extent of involvement and
                    duration of the child’s relationship with the party
                    proposing to relocate and with the nonrelocating
                    party, siblings and other significant persons in
                    the child’s life.

              (2)   The age, developmental stage, needs of the
                    child and the likely impact the relocation will
                    have on the child’s physical, educational and
                    emotional     development,      taking      into
                    consideration any special needs of the child.

              (3)   The feasibility of preserving the relationship
                    between the nonrelocating party and the child
                    through   suitable    custody   arrangements,


                                       - 28 -
J. S17039/20

necessitate a change in the Children’s schools, before and after school care,

and medical providers, the trial court erred because “every relocation case is

going to require a change in the children’s school district, and likely will also

require a change in the children’s before and after school care and medical

providers.” (Father’s brief at 37.) Father entirely fails to show that the trial



                  considering   the    logistics     and    financial
                  circumstances of the parties.

            (4)   The child’s preference, taking into consideration
                  the age and maturity of the child.

            (5)   Whether there is an established pattern of
                  conduct of either party to promote or thwart the
                  relationship of the child and the other party.

            (6)   Whether the relocation will enhance the general
                  quality of life for the party seeking the
                  relocation, including, but not limited to, financial
                  or emotional benefit or educational opportunity.

            (7)   Whether the relocation will enhance the general
                  quality of life for the child, including, but not
                  limited to, financial or emotional benefit or
                  educational opportunity.

            (8)   The reasons and motivation of each party for
                  seeking or opposing the relocation.

            (9)   The present and past abuse committed by a
                  party or member of the party’s household and
                  whether there is a continued risk of harm to the
                  child or an abused party.

            (10) Any other factor affecting the best interest of
                 the child.

23 Pa.C.S.A. § 5337(h).



                                     - 29 -
J. S17039/20

court’s consideration of the ten relocation factors and its denial of relocation

was not in the Children’s best interests. Instead, Father “submits that if the

factual underpinnings regarding the [trial] court’s findings are vacated[, then]

the record demonstrates he has easily met his burden of proof with regard to

the relocation factors.”    (Id. at 39.)   Our standard of review, however,

requires us to defer to the trial court’s factual findings where, as here, the

record supports those findings. See M.G., 155 A.3d at 1091.

      In its thoughtful consideration of the relocation factors, the trial court

determined that Factor 1 (relationships with non-relocating party, siblings,

and other significant person’s in child’s life) slightly favored relocation. With

respect to Factor 2 (impact of relocation on child’s physical, educational, and

emotional development), the trial court determined the factor favored neither

party. The trial court found that Factor 3 (feasibility of preserving relationship

between non-relocating party and child) weighed slightly against relocation

because relocation would adversely impact Mother’s time with the Children.

The trial court determined that Factor 4 (child’s preference) was neutral. The

trial court further found that Factor 5 (established pattern of conduct to

promote or thwart relationship with other party) favored Father’s relocation

because of Mother’s “established pattern of efforts to thwart the relationship

of the Children with Father.” (Trial court opinion, 9/5/19 at 11.) The trial

court determined that Factor 6 (whether relocation would enhance the general




                                     - 30 -
J. S17039/20

quality of life for the party seeking to relocate) weighed against relocation,

and it noted that

            Father asserts that the reason for relocation is to
            improve his family’s situation and that working in
            Harrisburg will yield him more income and better
            opportunity for advancement.         However, Father’s
            work is currently accommodating him by providing an
            office in York County so [the trial court does] not find
            this reasoning credible. Father can, and currently
            does, work from York and could continue to do so.
            Additionally, [the trial court] note[s] that Father’s
            paramour testified that she has not obtained
            permission from her own children’s father for the
            proposed relocation and had no concrete plans.

            Further, there is no justification for the extreme
            distance    of    the     move—from        York    to
            Hummelstown/Hershey area—when Father could
            move a shorter distance toward Harrisburg and
            remain in York County without significantly impacting
            Mother’s custody.     Though Father classified his
            proposed move as a “short distance to Dauphin
            County[,”] the location he has selected is on the far
            eastern side of Dauphin County, near the Lebanon
            County border. . . . [T]his factor weighs against
            relocation.

Trial court opinion, 9/5/19 at 11.

      With respect to Factor 7 (whether relocation will enhance child’s quality

of life), the trial court determined that because the testimony focused on the

past instead of looking forward to the Children’s best interests, the factor

weighed against relocation. (Id. at 12.)

      With respect to Factor 8 (reasons and motivation of each party for

seeking or opposing relocation), the trial court determined that this factor did

not weigh in favor of either party. In considering this factor, the trial court


                                     - 31 -
J. S17039/20

noted that Father’s reasons for relocation “are primarily for his own

self-interest rather than the overall best interests of the Children” and

Mother’s opposition is her belief that Father is trying to take the Children from

her and that the distance will make it difficult for her to participate in the

Children’s activities and school events. (Id.)

      The trial court also found that Factor 9 (present or past abuse

committed by a party or member of party’s household and whether a

continued risk of harm exists) was neutral for the reasons set forth previously

in this memorandum. It finally determined that Factor 10 (any other factor

affecting child’s best interest), weighed in favor of neither party.

      Following consideration of all of the relocation factors, the trial court

concluded that

             Father has failed to carry his burden.         Father’s
             purpose in relocating is clearly to benefit the travel
             time of his fiancé with little thought given as to
             whether     the   relocation    would   provide    any
             measureable benefit [to] the Children. Further, the
             relocation would significantly impact Mother’s custody
             and Father proposes no viable solutions.

Id. at 13.

      Our review of the record demonstrates that the record supports the trial

court’s factual findings and its legal conclusions are free of error.

      Order affirmed.




                                      - 32 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/11/2020




                          - 33 -
