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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.G.B., ON BEHALF OF N.G.A.                :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
W.K.,                                      :         No. 734 WDA 2018
                                           :
                          Appellant        :


                     Appeal from the Order, April 18, 2018,
                  in the Court of Common Pleas of Elk County
                  Domestic Relations Division at No. 2018-269


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED NOVEMBER 13, 2018

        W.K. (“appellant”) appeals from the final protection from abuse order

(“PFA Order”) entered against him in the Court of Common Pleas of Elk

County on April 18, 2018. After careful review, we affirm.

        The record reflects that on April 16, 2018, appellee filed with the trial

court a petition for protection from abuse on behalf of N.G.A.,1 in which she

alleged that appellant removed N.G.A. from his bicycle by grabbing his neck.

(Petition for PFA, 4/16/18 at ¶ 11.) The trial court entered a temporary PFA

order on April 16, 2018, and scheduled a hearing for a final PFA order. (See

temporary PFA order, 4/16/18.)        On April 18, 2018, the trial court held a

hearing for a final PFA order. Appellant did not appear for the hearing, and




1   Appellant and appellee are N.G.A.’s biological parents.
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the trial court only heard testimony from appellee. (See notes of testimony,

4/18/18 at 1-9.) Following the hearing, the trial court entered the final PFA

order against appellant in which appellant was, inter alia, evicted and

excluded from appellee’s residence and appellee was granted full temporary

custody of N.G.A. (Final PFA order, 4/18/18 at 1-2.) Additionally, the order

permits appellee to authorize supervised visits between appellant and N.G.A.

(Id. at 2.)

      Appellant filed a notice of appeal with this court on May 14, 2018.

Appellant simultaneously filed a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). On June 20, 2018, the trial court

issued an order in lieu of a formal opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

              I.     Whether the trial court erred as a matter of
                     law in proceeding with the protection from
                     abuse hearing when the appellant was not
                     present, when said appellant was in the Elk
                     County Jail, which was connected to the
                     courthouse?

              II.    Whether the trial court erred as a matter of
                     law in granting the protection from abuse when
                     the only evidence presented was the testimony
                     of     [appellee],    with     no    supporting
                     documentation with respect to any danger
                     concerning the minor child?

              III.   Whether the trial court erred    in ordering a
                     three (3) year protection from   abuse on the
                     minor child against appellant,   and requiring
                     supervised visitation to be      controlled by
                     [appellee], when appellant       had primary
                     custody of said minor child?


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Appellant’s brief at 4 (full capitalization omitted).

      “In the context of a PFA order, we review the trial court’s legal

conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870

A.2d 377, 378 (Pa.Super. 2005) (citation omitted).         The purpose of the

Protection From Abuse Act, 23 Pa.C.S.A. §§ 6101-6122 (“PFAA”), is not to

punish abusers for past violent behavior, but to advance the prevention of

domestic violence from abusive perpetrators. Fonner v. Fonner, 731 A.2d

160, 161 (Pa.Super. 1999). This court has emphasized that “[t]he purpose

of the [PFAA] is to protect victims of domestic violence from those who

perpetrate such abuse, with the primary goal of advance prevention of

physical and sexual abuse.”      Buchhalter v. Buchhalter, 959 A.2d 1260,

1262 (Pa.Super. 2008). Under the PFAA, the petitioner bears the burden of

proving the allegations of abuse by a preponderance of the evidence. See

23 Pa.C.S.A. § 6107(a).       For proceedings where, as here, the petitioner

commences proceedings under the PFAA, the PFAA defines “abuse” as:

“[k]nowingly engaging in a course of conduct or repeatedly committing acts

toward another person, including following the person, without proper

authority, under circumstances which place the person in reasonable fear of

bodily injury.” 23 Pa.C.S.A. § 6102(a)(5).

      In his first issue on appeal, appellant contends that the trial court

erred when it held the final PFA hearing in appellant’s absence, thereby

violating appellant’s due process rights.     (Appellant’s brief at 11.)   In his


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argument, appellant relies on this court’s decision in         Plowman v.

Plowman, 597 A.2d 701 (Pa.Super. 1991).          Id.   Specifically, appellant

argues that the trial court violated the Plowman court’s application of

Pa.R.Civ.P. 1915.9, which prohibits judgment by default or on the pleadings

in custody proceedings. (Appellant’s brief at 14, citing Pa.R.Civ.P. 1915.9.)

Appellant also quotes Plowman as follows:        “While this rule ostensibly

applies to final orders of custody, Rule 1915.9, Explanatory Note, we find it

applicable where the result of any order substantially affects the rights of

either parent, or the minor children.”     (Appellant’s brief at 14, quoting

Plowman, 597 A.2d at 706.)

      Appellant’s reliance on Plowman is misplaced.           Plowman was

decided in the context of a father’s allegation that “he was denied procedural

due process since he was not afforded a full evidentiary hearing” before the

trial court permitted the child to relocate to Maryland with his mother.

Plowman, 597 A.2d at 705. Here, the record indicates that at 1:30 p.m. on

April 16, 2018, the Elk County Sherriff’s Office served appellant at the Elk

County Jail with a copy of the notice of the April 18, 2018 final PFA hearing.

Although appellant asserts that he requested to appear at the hearing, there

is no evidence of record to support that appellant requested to be

transported from the Elk County Prison to the courthouse so that he may

appear for the final PFA hearing, and the trial court found as such.

Moreover, the PFAA only requires that a defendant be given notice of a final



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PFA hearing.      See 23 Pa.C.S.A. § 6107(a).       Accordingly, appellant’s first

issue is without merit.

      In his second issue on appeal, appellant avers that the evidence was

not sufficient to warrant the trial court granting a PFA order.          (Appellant’s

brief at 16-17.)       Within his argument, appellant appears to raise two

arguments.       The first of appellant’s arguments alleges that appellee’s

testimony was not credible, as it was based wholly on “hearsay and

speculation.”     (Id.)   Appellant further contends that the conduct of which

appellant was accused did not rise to the level of abuse contemplated by the

PFAA and that appellant’s conduct was “parental discipline and not abuse.”

(Id. at 17.)

      This court reviews sufficiency of the evidence claims pertaining to

protection from abuse hearings as follows:

               When a claim is presented on appeal that the
               evidence is not sufficient to support an order of
               protection from abuse, we review the evidence in the
               light most favorable to the petitioner and granting
               her the benefit of all reasonable inference[s],
               determine whether the evidence was sufficient to
               sustain   the    trial  court's   conclusion    by    a
               preponderance of the evidence. This Court defers to
               the credibility determinations of the trial court as to
               witnesses who appeared before it. Furthermore, the
               preponderance of the evidence is defined as the
               greater weight of the evidence, i.e., to tip a scale
               slightly is the criteria or requirement for
               preponderance of the evidence.




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Ferko-Fox v. Fox, 68 A.3d 917, 926-927 (Pa.Super. 2013), quoting

Thompson v. Thompson, 963 A.2d 474, 477 (Pa.Super. 2008) (quotations

and citations omitted).

      As noted by the Ferko-Fox court, we defer credibility determinations

to the trial court. Accordingly, because appellant’s argument rests solely on

the credibility of appellee’s testimony, which we are not entitled to reweigh,

we find that appellant’s first sufficiency of the evidence argument is without

merit.

      Appellant next takes exception to the trial court’s conclusion that his

alleged conduct rose to the level of abuse contemplated by the PFAA.

(Appellant’s brief at 17.) The PFAA defines “abuse,” in relevant part, as the

“occurrence of one or more of the following acts between family or

household members . . . . (4) Physically . . . abusing minor children.”

23 Pa.C.S.A. § 6102(a)(4).

      During the final protection from abuse hearing, appellee testified as

follows:

            And [N.G.A.] was riding his bike sometime during
            this altercation right before, and [appellant] told him
            to get off the bike.       And [N.G.A.] didn’t.     And
            [appellant] grabbed [N.G.A.] by his throat and took
            him off the bike. And I have a picture here that I
            took, and I brought him to the State Police and
            asked if that was also documented when they
            arrested [appellant] on the charges against his wife,
            since it was the same night. And they said that
            [N.G.A.] had a hoody on and a big heavy coat and
            he was really scared from what he [had] just seen,



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             and he didn’t say anything. But they didn’t see the
             mark on his neck because of what he was wearing.

             I got a call Sunday morning to pick [N.G.A.] up, and
             when he got on his booster seat, he looked up and I
             [saw] on his neck.       And I asked [N.G.A.] what
             happened, and he told me his dad grabbed him by
             the throat and ripped him off his bike because he
             wouldn’t get off the bike right when [appellant] told
             him to get off the bike.

Notes of testimony, 4/18/18 at 5-6.

       Clearly, this testimony established the context in which the PFA order

was sought. The testimony involved acts of violence committed by appellant

toward his wife in the presence of the children, as well as his failure to

further control his anger toward N.G.A.           Appellee further provided

photographic evidence of the mark she discovered on N.G.A.

       Based on this testimony, when viewed in the light most favorable to

appellee, we find that appellee presented sufficient evidence to warrant the

trial court’s granting a PFA order.    Therefore, appellant’s second issue is

without merit.

       Finally, appellant avers that the trial court’s granting of a three-year

PFA order was excessive and constitutes an error of law. (Appellant’s brief

at 18-19.)   Appellant further argues that the custody implications brought

forth by the final protection from abuse order were also excessive. (Id. at

19.)

       The PFAA provides, in relevant part:




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          (a)    General rule.--The court may grant any
                 protection order or approve any consent
                 agreement to bring about a cessation of abuse
                 of the plaintiff or minor children. The order or
                 agreement may include:

          ....

                 (4) Awarding temporary custody of or
                     establishing temporary visitation rights
                     with regard to minor children. In
                     determining     whether       to    award
                     temporary     custody      or    establish
                     temporary visitation rights pursuant to
                     this paragraph, the court shall consider
                     any risk posed by the defendant to the
                     children as well as risk to the plaintiff.
                     The following shall apply:

                     (i)   A defendant shall not be
                           granted custody, partial custody
                           or unsupervised visitation where
                           it is alleged in the petition, and
                           the court finds after a hearing
                           under this chapter, that the
                           defendant:

                              (A) abused the minor
                              children of the parties or
                              poses a risk of abuse
                              toward the minor children
                              of the parties; or

                              (B) has been convicted of
                              violating    18     Pa.C.S.
                              § 2904      (relating    to
                              interference with custody
                              of children) within two
                              calendar years prior to the
                              filing of the petition for
                              protection order or that
                              the defendant poses a risk
                              of violating 18 Pa.C.S.
                              § 2904.


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               (ii) Where the court finds after a
                    hearing under this chapter that
                    the defendant has inflicted
                    abuse upon the plaintiff or a
                    child, the court may require
                    supervised custodial access by a
                    third party. The third party must
                    agree to be accountable to the
                    court    for    supervision   and
                    execute      an     affidavit  of
                    accountability.

               (iii) Where the court finds after a
                     hearing under this chapter that
                     the defendant has inflicted
                     serious abuse upon the plaintiff
                     or a child or poses a risk of
                     abuse toward the plaintiff or a
                     child, the court may:

                      (A)     award      supervised
                      visitation in a secure
                      visitation facility; or

                      (B) deny the defendant
                      custodial access to a child.

               (iv) If a plaintiff petitions for a
                    temporary order under section
                    6107(b) (relating to hearings)
                    and the defendant has partial,
                    shared or full custody of the
                    minor children of the parties by
                    order of court or written
                    agreement of the parties, the
                    custody shall not be disturbed
                    or changed unless the court
                    finds that the defendant is likely
                    to inflict abuse upon the
                    children or to remove the
                    children from the jurisdiction of
                    the court prior to the hearing
                    under section 6107(a). Where


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                           the defendant has forcibly or
                           fraudulently removed any minor
                           child from the care and custody
                           of a plaintiff, the court shall
                           order the return of the child to
                           the plaintiff unless the child
                           would     be    endangered    by
                           restoration to the plaintiff.

                      (v) Nothing in this paragraph shall
                          bar either party from filing a
                          petition for     custody under
                          Chapter 53 (relating to custody)
                          or under the Pennsylvania Rules
                          of Civil Procedure.

                      (vi) In order to prevent further
                           abuse during periods of access
                           to the plaintiff and child during
                           the exercise of custodial rights,
                           the court shall consider, and
                           may impose on a custody
                           award, conditions necessary to
                           assure the safety of the plaintiff
                           and minor children from abuse.

                      ....

            (d)   Duration and amendment of order or
                  agreement.--A protection order or approved
                  consent agreement shall be for a fixed period
                  of time not to exceed three years. The court
                  may amend its order or agreement at any time
                  upon subsequent petition filed by either party.

23 Pa.C.S.A. § 6108(a)(4)(A)(iii)-(iv); (d).     As noted above, within the

context of PFA orders, we review a trial court’s legal conclusions for abuse of

discretion. See Drew, 870 A.2d at 378. Abuse of discretion is defined as

“more than just an error in judgment.” Commonwealth v. Walsh, 36 A.3d

613, 620 (Pa.Super. 2012), quoting Commonwealth v. Jackson, 785 A.2d


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117, 118 (Pa.Super. 2001), appeal denied, 798 A.2d 1288 (Pa. 2002).

Rather, the record must reflect that “the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Id.

      Here, after reviewing the record, we find that the trial court’s legal

conclusions and granting of the PFA order are devoid of manifestly

unreasonable judgment, partiality, prejudice, bias, or ill-will.           To the

contrary, the trial court acted within the limits established by the plain

language of the PFAA. Accordingly, appellant’s third issue is without merit.

      Order affirmed.



      Olson, J. joins this Memorandum.

      Murray, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/13/2018




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