J-S67015-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

L.A.D.,                                   : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
E.J.A.,                                   :
                                          :
                  Appellee                : No. 1042 WDA 2014

                 Appeal from the Order entered May 30, 2014,
                    Court of Common Pleas, Erie County,
                       Civil Division at No. 14723-2004

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 10, 2014

      L.A.D. (“Mother”) appeals pro se from the May 30, 2014 order entered

by the Erie County Court of Common Pleas denying her request to modify

the custody order pertaining to D.A., born in October of 2004 (“Child”),

applicable to Mother and E.J.A. (“Father”). After careful review, we affirm.

      The trial court provided the following summary of the procedural

history of this case:

            Since the 2004 initiation of this case, the Court has
            entered eight custody orders. Prior to the Child
            reaching school age, the parties maintained
            essentially an equal shared custody arrangement.
            Thereafter, an August 11, 2010 Order of Court set
            forth the parties consent agreement. Pursuant to the
            August 11, 2010 order, the parties alternated time in
            the summer, but[] during the school year, the Child
            was in Father’s custody overnight during the week,
            one full weekend per month and one weekend
            overnight during another weekend of the month




*Former Justice specially assigned to the Superior Court.
J-S67015-14


          while Mother exercised custody two evenings per
          week pus the remaining weekend time.

          Since 2010, the parties have filed a petition for
          modification each year.      The three most recent
          petitions resulted in full custody trials before the
          court. Specifically, on July 27, 2011, Mother filed a
          Complaint for Modification of Custody Order
          requesting primary custody and alleging that she
          could best meet the developmental needs of the
          Child. Following a hearing, the Honorable Daniel J.
          Brabender, Jr. issued a December 12, 2011 Order
          maintaining a shared legal and physical custody
          arrangement for the parties. The December 12, 2011
          Order established a schedule which maintained the
          weekend schedule from the parties 2010 consent
          agreement but altered weekdays such that Mother
          obtained one overnight period of custody during the
          week in addition to one evening period of custody.

          Just four months later, on April 20, 2012, Mother
          filed     another     Complaint       for     Primary
          Residence/Modification of an Existing Order alleging
          that it would serve the Child’s best interest to be in
          her primary custody due to continued lack of
          communication with Father and Mother’s residence is
          permanently in the Child’s school district.[FN]
          Following a hearing, Judge Brabender issued a
          September 13, 2012 Memorandum Opinion and
          Order maintaining the status quo. Mother appealed
          Judge Brabender’s Order. By a June 19, 2013
          Memorandum Opinion, the Superior Court affirmed
          the September 13, 2012 Order.

          [Two months later], on August 26, 2013, Mother
          filed a Complaint for Primary Residence/Modification
          of an Existing Order alleging the Child’s best interest
          would be served in her primary custody due to
          continued lack of communication with Father,
          Mother’s residence in the Child’s school district,
          Mother's availability, and use of the Child for
          financial purposes. After a May 28, 2014 hearing,
          this Court issued its May 30, 2014 Order which, with



                                   -2-
J-S67015-14


            regard to periods of custody, only altered the
            weekend custody schedule. Specifically, during the
            school year, each party has custody of the Child
            every other weekend. The only other substantive
            changes to the order were the addition of a provision
            that each party attend individual counselling and
            that, until further order of court, neither party file a
            custody modification or contempt petition without
            first seeking leave of court. Mother, on June 27,
            2014, filed her Notice of Appeal.
            ___________________________
            [FN]
                  Mother, on April 30, 2012, also filed a Petition
            for Contempt of Custody Order alleging that Father
            did not allow her period of custody on April 28, 2012.
            Following a hearing, the Petition for Contempt was
            denied.

Trial Court Opinion, 6/28/14, at 1-3 (footnote in the original).

      Mother raises the following issues for our review, recited verbatim and

without correction from the statement of questions involved section of her

appellate brief:

            1. DID THE COURT ERR BY PREJUDICED BY THE
            COURT’S SPECIFIC ACTIONS?

               a. DID THE COURT ERR IN DETERMINING THAT
               THE PLAINTIFF’S CLAIM WAS WITHOUT MERIT IN
               SEEKING PRIMARY RESIDENCY?

               b. DID THE COURT ERR TO NOT HEAR
               TESTIMONY FROM PLAINTIFF’S WITNESSES AND
               TAKE CONSIDERATION THE PRETRIAL NARRATIVE
               WAS CIRCUITED MORE THAN ONCE IN A TIMELY
               MANNER?

               c. DID THE COURT ERR TO MODIFY AND MEND
               SOME OF THE SHARED HOLIDAY TIME FOR A
               MORE STABILITY AND LESS MOBILE OF OUR
               CHILD?




                                     -3-
J-S67015-14


              d. DID THE COURT ERR IN MENDING THE
              CURRENT COURT ORDER TO REMOVAL OF FAMILY
              WIZARD AND CO= PARENTING?

              e. DID THE COURT ERR IN AND ABUSE
              DISCRETION TO       RECEIVE EXHIBITS AT THE
              TRIAL, dated for May 28th, 2014?

              f. DID THE COURT ERR IN ADDRESSING THE
              COMMUNICATION FROM PAGE 2 LINE I OF
              CURRENT CUSTODY ORDER?

              g. DID THE COURT ERR WITH AN ADDITION OF
              PAGE 3 NUMBER 7 OF COURT ORDER- UNTIL
              FURTHER ORDER OF COURT: NEITHER PARTY
              SHALL FILL A CUSTODY MODIFICATION OR
              CONTEMPT PETITION WITHOUT FIRST SEEKING
              LEAVE OF COURT TO DO SO?

          2. The Court erred with acknowledgement in
          consideration of the different factors for the decision
          based on the best interest of the child’s moral,
          mental,     emotional,     physical    and     spiritual
          development.

              a. Did the Court err with withdrawing the
              suspicion of drug use around the child and dismiss
              the drug testing to help hold the child’s wellbeing
              accountable?

              b. DID THE COURT ERR IN THAT PLAINTIFF
              BROUGHT FORTH IN THE SAID HEARING AND
              UTILIZED SEVERAL ATTEMPTS THROUGH CO-
              PARENTING, CONCERN IN OUR CHILD’S SCHOOL
              AND OUT OF SCHOOL ACTIVITIES OF DECISIONS
              THAT NEEDED TO BE ADDRESSED AND PROCEED
              TO NOT BE FULFILLED FOR THE CHILD[?] IN
              TURN GOES IN HAND OF PA.C.S.A. 5328(A)(4)[.]

              c. DID THE COURT ERR UPON RECEIPT OF THE
              CURRENT CUSTODY ORDER, THE PLAINTIFF HAS
              BEEN CONTACTED BY THE CHILD’S 3rd GRADE




                                   -4-
J-S67015-14


               SCHOOL TEACHER STATING THAT THE CHILD IS
               STILL BEHIND IN A GRADE LEVEL OF READING[?]

                  i. DID THE COURT ERR IN KNOWING THE LACK
                  OF COMMUNICATION AND THE DIFFICULTY OF
                  DECISIONS BETWEEN BOTH PARTIES OF THE
                  CHILD CONTINUES TO BE NOT ADDRESSED
                  FOR THE BEST INTEREST OF THE CHILD AND
                  THE NEEDS OF OUR CHILD AFTER THERE HAVE
                  BEEN MORE THAN SEVERAL ATTEMPTS TO BE
                  ADDRESSED UTILIZING DIFFERENT METHODS
                  FOR A SOLUTION FOR THE SAKE OF OUR
                  CHILD.

            3. DID THE COURT ABUSE IT’S DISCRETION IN
            MAKING A NON SUBSTANTIVELY MODIFY TO THE
            CUSTODY    ORDER   WITHOUT  HOLDING   THE
            EVIDENTIARY PROCEEDING?

Mother’s Brief at 6-7.1

      In total, Mother raises 14 questions for this Court to address.      Her

argument section of her appellate brief, however, is less than one-half of a

page, includes no citations to the record, and does not include any

discussion about any of the issues raised.2    As we have previously stated,


1
  Mother did not paginate her appellate brief. For ease of reference, we
assigned page numbers beginning with the first page after the cover.
2
    We note, however, that Mother appears to have abided much of the
information we included in the Memorandum deciding her last appeal. In the
pro se appellate brief Mother filed in that appeal, she failed to include a
statement of questions involved, a summary of her argument, or citation to
any relevant legal authority. See L.A.D. v. E.J.A., 1585 WDA 2012, *5 (Pa.
Super. June 19, 2013) (unpublished memorandum). She has remedied
those deficiencies in large part in her brief in support of the current appeal.

We further note that Mother included an additional section in her appellate
brief entitled “Statement of the reasons to allow an appeal to challenge the
discretionary aspects of a sentence,” wherein she restates the issues raised


                                     -5-
J-S67015-14


“The Rules of Appellate Procedure state unequivocally that each question an

appellant raises is to be supported by discussion and analysis of pertinent

authority. Appellate arguments which fail to adhere to these rules may be

considered waived, and arguments which are not appropriately developed

are waived.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014)

(internal citations omitted); see also Pa.R.A.P. 2119(a) (requiring that the

argument “be divided into as many parts as there are questions to be

argued; and shall have at the head of each part--in distinctive type or in

type distinctively displayed--the particular point treated therein, followed by

such discussion and citation of authorities as are deemed pertinent”), (b)

(requiring citations to relevant authority and including the principle for which

they are cited), (c) (requiring citations to the record), (d) (requiring a

synopsis of all the evidence on point relating to a claim that the trial court

erred by finding or refusing to find a fact).

      Generously reviewing Mother’s argument, we find that she preserved

only one question, encompassed in issues (1)(a) and (2) stated above –

whether the trial court abused its discretion by denying her petition for

modification of the custody order and its application of the custody factors



in the statement of questions involved section of her brief and provides a
sentence or two explaining the reason she raised each issue. See Mother’s
Brief at 13-16. Although we appreciate Mother’s attempt to be thorough,
this section is only required (and applicable) in cases wherein a defendant
challenges the discretionary aspects of his criminal sentence on appeal. See
Pa.R.A.P. 2119(f).


                                      -6-
J-S67015-14


contained in section 5328(a) of the Child Custody Act. See Mother’s Brief at

17. We begin by stating our standard of review:

            In reviewing a custody order, our scope is of the
            broadest type and our standard is abuse of
            discretion. We must accept findings of the trial court
            that are supported by competent evidence of record,
            as our role does not include making independent
            factual determinations. In addition, with regard to
            issues of credibility and weight of the evidence, we
            must defer to the presiding trial judge who viewed
            and assessed the witnesses first-hand. However, we
            are not bound by the trial court’s deductions or
            inferences from its factual findings. Ultimately, the
            test is whether the trial court's conclusions are
            unreasonable as shown by the evidence of record.
            We may reject the conclusions of the trial court only
            if they involve an error of law, or are unreasonable in
            light of the sustainable findings of the trial court.

            With any child custody case, the paramount concern
            is the best interests of the child. This standard
            requires a case-by-case assessment of all the factors
            that may legitimately affect the physical, intellectual,
            moral and spiritual well-being of the child.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted).

      Section 5328(a) of the Child Custody Act sets forth the factors that a

trial court must consider when ordering any form of custody, giving greater

weight to factors affecting the safety of the 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



                                      -7-
J-S67015-14


          adequate physical safeguards and supervision of the
          child.

          (2.1) The information set forth in section 5329.1(a)
          (relating to consideration of child abuse and
          involvement with protective services).

          (3) The parental duties performed by each party on
          behalf of the child.

          (4) The need for stability and continuity in the child’s
          education, family life and community life.

          (5) The availability of extended family.

          (6) The child’s sibling relationships.

          (7) The well-reasoned preference of the child, based
          on the child’s maturity and judgment.

          (8) The attempts of a parent to turn the child against
          the other parent, except in cases of domestic
          violence 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




                                    -8-
J-S67015-14


             unwillingness or inability to cooperate with that
             party.

             (14) The history of drug or alcohol abuse of a party
             or member of a party’s household.

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

             (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

        The trial court found that factor 2 (present or past abuse), factor 2.1

(involvement     with   child   protective   services),   and   factor   6   (sibling

relationships) were not relevant in this case.3 Trial Court Opinion, 7/28/14,

at 4.    Furthermore, the trial court stated that because the court had so

recently reviewed the case at the modification proceeding the previous year,

it limited testimony to “new information since the [c]ourt’s last involvement

with the parties,” to which no objection was made by either party. Id. As

the parties presented no evidence regarding factors 3 (the parental duties

performed by each party), 5 (availability of extended family), or 11

(proximity of the parties’ residences), the trial court made no new findings

with respect to these issues.      Id. at 4-5.    The trial court found that the

remaining factors weighed in favor of maintaining the status quo. There was

no concern regarding most of the factors, as both encouraged contact with


3
   Our review of the record reveals that Child has two teenaged half-siblings
on Father’s side with whom, according to Father, Child has a close
relationship. See N.T., 5/28/14, at 33-34. This omission does not alter our
decision.


                                       -9-
J-S67015-14


the other parent; Child had improved his academic performance; testimony

revealed that Child was happy with the custody arrangement; neither made

attempts to turn Child against the other parent; both maintain a stable and

loving environment for Child; and there are no concerns about the mental or

physical conditions of either parent.    Id. at 5-9.   Although Mother was

reporting troubling behaviors by Child while he was in her care, including

aggressiveness and suicidal talk, Father had not observed the same

behaviors, and found that Child is able to deal with frustration better than

before. Id. at 5-6.

      The trial court observed a high level of conflict between Mother and

Father, aggravated by the nearly continuous involvement of the courts, and

believes that neither Mother nor Father appreciate the detrimental impact

this is having on Child. Id. at 6-7. Mother has brought serial petitions for

modification of the custody order, concomitantly missing half of the

scheduled co-parenting sessions, raising questions in the trial court’s mind

regarding Mother’s commitment to co-parenting Child with Father. Id. at 8.

Furthermore, the trial court found that “since the last custody order, Mother

has relinquished to Father thirteen overnights of her periods of custody, plus

sixty hours of daytime custody,” which cast doubt about Mother’s ability to

care for Child or make appropriate arrangements for Child’s care. Id. at 7.

      Ultimately, the trial court concluded that modifying the custody order

to make Mother the primary custodian of Child was not in Child’s best



                                    - 10 -
J-S67015-14


interest. It found the evidence supported finding that Child was happy and

settled in the established custody routine and actually exhibited better

behaviors in Father’s care than in Mother’s care. Id. at 7. The trial court

further granted Father’s request to alternate weekends of custody with

Mother,4 finding that because

            this is only a minor change to the custody schedule
            and that the Child does not have the type of
            behavioral outbursts in Father’s care that he displays
            in Mother’s care, the [trial c]ourt believes that such a
            change will not jeopardize the Child’s stability.
            Moreover, the [trial c]ourt notes that Father engages
            the Child in a number of activities while the Child is
            in his care, clearly taking advantage of the quality
            time. Furthermore, Father reports that the Child
            adjusts well, and is happy, when Father obtains
            extra periods of custody due to Mother’s lack of
            availability.

Id. at 7-8. Although Mother expressed concern about Father possibly using

drugs, the trial court found that Mother’s claim lacked “explanation or proof,”

found credible Father’s denial that he or any member of his household used

drugs, and determined that drug testing was not warranted. Id. at 9.

      The evidence and testimony presented at the hearing supports the trial

court’s decision.   The parties’ co-parenting counselor, Michael Bloesser



4
  The weekend custody schedule at the time of the modification hearing was
as follows: Weekends 1 and 2 – Child in Mother’s care from Friday after
school until 5:00 p.m. Sunday; Weekend 3 – Child in Father’s care from
Weekend 2 – Child in Father’s care from 5:00 p.m. Friday until 5:00 p.m.
Saturday and in Mother’s care from 5:00 p.m. Saturday until 5:00 p.m.
Sunday; Weekend 4 – Child in Father’s care from Friday after school until
5:00 p.m. Sunday.


                                     - 11 -
J-S67015-14


(“Bloesser”), testified as an expert witness in the area of co-parent

counseling, and Mother and Father also provided testimony regarding how

things have been going and/or changed since the last custody trial.5

Bloesser, who has been working with the family since October of 2011,

observed Child to be adjusted to the current custody schedule and “happy

with it.” N.T., 5/28/14, at 7, 16. Mother had only attended five of the at

least ten scheduled sessions, making it difficult for Bloesser to work with the

parties on their communication. Id. at 11. It was Bloesser’s opinion that

the constant litigation, initiated by Mother, was detrimental to their

relationship and made it difficult to co-parent Child.      Id. at 9, 13.    He




5
    Our review of the record reveals that the modification proceeding was
unorthodox to say the least. The trial court, with Mother’s agreement,
permitted Father to call Bloesser out of turn, but denied Mother the
opportunity to cross-examine the witness, instead calling Mother and Father
to tell the judge what was going on and what had changed since the last
custody trial held the year before. N.T., 5/28/14, at 20. The court did this
because there had been a lot of litigation in the case, and it wanted to limit
the testimony to why Mother believed the custody schedule should change
and why Father believed that it should not be changed. Id. at 21, 26.
Furthermore, at Father’s counsel’s request, the trial court “sanctioned”
Mother for failing to timely file her pretrial narrative, precluding Mother from
calling any of the witnesses listed thereon. The trial court defends this
decision by stating that Mother was ordered to file her pretrial narrative by
May 14, 2014, and Mother failed to do so until May 16, 2014, two days
beyond the ordered deadline. Trial Court Opinion, 7/28/14, at 11. The
record reflects, though, that the modification hearing was continued twice
before the May 28th date and that Mother had filed an identical pretrial
statement on both December 9, 2013 and February 21, 2014. However, as
Mother neither objected to the trial court’s determinations nor presented any
argument on appeal addressing these issues, she is due no relief.


                                     - 12 -
J-S67015-14


testified that the parties are able to successfully resolve issues with Child

when there are no “court appearances looming[.]” Id. at 17.

      Mother testified that Child has experienced behavioral outbursts and

academic problems, which have “been continually going on through the last

couple [of] years.” Id. at 21. The only new concern Mother testified to was

her “suspicion that there has been drugs involved on the father’s side.” Id.

at 22. She presented no proof through her own testimony or indication that

another witness could confirm her belief. Id. We note that this concern was

not listed on her pretrial narrative, and she did not state that any witness

she planned to call would testify that Father or any of his friends or family

members responsible for Child’s care were using drugs.           See Mother’s

Pretrial Narrative Statement, 12/9/13, 2/21/14, 5/16/14.

      Father testified that he does not have concerns about Child’s academic

performance – that Child’s teacher called him in March and let him know

that Child is performing at grade level in his reading. N.T., 5/28/14, at 26-

27. He presented Child’s report card for the third quarter of the 2013-2014

school year and testified that it showed “constant improvement.” Id. at 27-

28. According to Father, Child is excited to go to school. Id.

      Father also testified that he has not seen any worsening of Child’s

behaviors in the last year. Id. at 29. Child continues to see his therapist for

his problems with anxiety. Id. at 29-30.




                                    - 13 -
J-S67015-14


         According to Father, Mother has relinquished 13 overnights and 60

hours of other custodial time with Child to him and that Child is happy when

he knows he is going to be spending more time at Father’s house. Id. at

37-38.     Regarding Mother’s allegation that Father uses drugs, he testified

that he has “been sober for over twelve years,” and denied that he or any

friend or family member responsible for Child’s care uses drugs. Id. at 38.

         As the evidence of record supports the trial court’s findings, we find no

abuse of discretion in its denial of Mother’s request for primary custody of

Child.    See J.R.M., 33 A.3d at 650.       We therefore affirm the trial court’s

order.

         Order affirmed.

         Fitzgerald, J. joins the Memorandum.

         Mundy, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014




                                       - 14 -
