J-S54008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.P.W., JR.,                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

A.N.H.,

                             Appellant                No. 191 WDA 2016


                  Appeal from the Order Entered January 6, 2016
               In the Court of Common Pleas of Washington County
                      Civil Division at No(s): No. 2010-10883


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 24, 2016

      A.N.H. (Mother) appeals from the January 6, 2016 order that denied

and dismissed her modification petition that requested a change in the

custody of A.J.W. (Child), born in November of 2010, the son of Mother and

J.P.W., Jr. (Father).

      As explained by the trial court, the parties have litigated the custody of

their son and related matters from shortly after Child’s birth.     This latest

order on appeal denied and dismissed Mother’s custody modification petition

without a hearing. Mother filed a timely appeal and a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a0(2)(i) and (b).

She raises the following issues for our review:

      I. Whether the trial court committed an error of law by finding
      that Mother was required to aver a substantial change in
      circumstances in order for Mother to request a modification of a
      custody order and by denying Mother’s Petition for Modification
J-S54008-16


      of Custody without a hearing to determine if said modification
      would be in the best interest of the child pursuant to 23 Pa.C.S.
      [§] 5338(a)[?]

      II. Whether the trial court committed an error of law by denying
      Mother a hearing on her Petition for Modification which violated
      Mother’s procedural due process rights under the United States
      Constitution and Pennsylvania Constitution[?]

Mother’s brief at 4.

      In addressing the type of issues raised in this appeal, we are guided by

the following:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion…. 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.

M.O. v. J.T.R., 85 A.3d 1058, 1061 (Pa. Super. 2014).

      We have reviewed the pertinent parts of the certified record, the briefs

of the parties, the applicable law, and the thorough opinion authored by the

Honorable John F. DiSalle of the Court of Common Pleas of Washington

County, dated March 9, 2016.       We conclude that Judge DiSalle’s well-

reasoned opinion correctly disposes of the issues presented by Mother on

appeal and we discern no abuse of discretion or error of law. Accordingly,

we adopt Judge DiSalle’s opinion as our own and affirm the January 6, 2016

order on that basis.

      Order affirmed.




                                    -2-
J-S54008-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




                          -3-
                                                                                             -,<,       •'-· \"")l-\1
                                                                                                ..J ...:.D    .     \(;-;\----._  ,, \ -.,,,./\ I (.)\ l.. '\ ")
                                                                                                                        '-:. l \ ,.,_                                r.     /\
                                                                                             Circulated 08/15/2016 12:53 PM                •       ·-·   J   ·' ••    J.,        J




  IN THE-COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
     -1'/J. t . 1
      .J,     ,IA/•)
                        -r:
                        vn,
                            CIVIL DIVISION

                                                     )
                                                     )
                       Plaintiff,                    )
                                                     )
   a vs.,1                                           )                 191 WDA 2016
   rf'N · 17 .,,                                     )                 No. 2010-10883
                                                     )
                                                     )
                       Defendant.                    )                 tliffiY OF OPINION,         OIIDitll., D.-mC:Rll1! ,i
                                                                       ·tJ)J"UD!GATIOtJ OR JU'        ., II .'r FIL]JJJ:)..::J,:Jk
                                                                       ~&AILED     3 -~ JD- ll:.
                                                    OPINION            ro ~_e,~Ji?            ·.~~Y'So'"':
            This is an appeal from the order of the trial court dated January 6, 2016, denying and .
                                                                                                          /J-,IJ.f/.
· dismissing the petition for modification of custody filed by Mother, defendant I                   g 3 I 1 II

("Mother"), seeking the modification of the custody order dated March 25, 2014, regarding-the

custody of the parties' minor child, A.J.W,1 now age five (born November.                  2010). The final

custody order of March 25, 2014 was entered after nearly four years of litigation over the

custody of A.J.W. Mother filed a timely appeal from the final custody order, which was

affirmed by the Superior Court.2 Less than nine months after Mother's application for

reargument was denied, she presented the instant petition for modification of custody. Upon

consideration of the petition for modification, the trial court entered its order of January 6, 2016,




I
  The child's name was changed from A.W.H., the surname of Mother's ex-husband, to A.J.W., Father's surname,
over Mother's objection, by order dated October 30, 2012, pursuant to the petition for name change filed by Father
docketed at No. 2011-4793. Mother filed an appeal to the Superior Court on October 30, 2012, docketed at number
 1682 WDA 2012. The Superior Court affirmed the name change by order dated March 21, 2014, and Mother
applied for reargument. Reargument was granted by order dated May 19, 2014, and the order changing the Child's
last name to Father's name was affirmed by order dated April 17, 2015. Mother filed a Petition for Allowance of
Appeal to the Supreme Court, docketed at number 184 WAL 2015, which was denied by order dated December 17,
2015.                                  .
2
  Mother's appeal is docketed at number 646 WDA 2014; this Court affirmed the final custody order by its order
dated January 14, 2015; Mother filed an Application for Reargument to the Superior Court, which was denied by
order dated March 3, 2015.
denying the petition without a hearing, From this order, Mother filed a timely appeal to the

Superior Court of Pennsylvania.

                    ,.--          -r:          Procedural History:
                  ,JI f.   lJ,)   ,j~•)
       Father,•-•••••··                   ("Father") filed the Complaint for Custody herein on

December 21, 2010, seven weeks after A.J.W. was born. Following years of contentious court

proceedings and multiple days of custody hearings before the trial court, which included the

testimony and reports of custody evaluators as expert witnesses, the trial court entered the

custody order of March 25, 2014; awarding sole legal custody of A.J.V(. to Father and shared

physical custody of the Minor Child to both parents.

       Mother filed a timely appeal to the Superior Court of Pennsylvania, docketed at number

646 WDA 2014, and by order dated January 14, 2015, the Superior Court affirmed the custody

order of March 25, 2014. Mother filed an Application for Reargument to the Superior Court,

which was denied by order dated March 3, 2015.

       Byorder dated December 19, 2014, Mother was found in contempt of the custody order

of March 25,'2014, for acting adversely to the Child's best interests by continuing to claim to

representatives of his school and   to health care providers that he was autistic and
developmentally delayed when there was no evidence of this, and it was contrary to the reports

of the medical providers. Mother filed an appeal of this order to the Superior Court, docketed at

number 170 WDA 2015, and by order dated October 29, 2015, the Superior Court affirmed the

trial court's order. On November 30, 2015, Mother filed a Petition for Allowance of appeal to

the Supreme Court of Pennsylvania, at docket number 465 WAL 2015, which was denied on

January 20,2016.




                                                    2
            Mother then presented to the trial court her Petition for Modification of the Child's

custody order which alleged no change in circumstances of the Child's custody. On January 6,

2016, the trial court entered its order denying Mother's petition without hearing.

                                                    Legal Analysis:

            In her Petition for Modification, Mother alleged no change whatsoever in the

circumstances of the Child's custody, rather, Mother's petition merely "avers that there is no

reason that the parties cannot enjoy an equally shared custody schedule" and that "Mother

desires to have her legal custody rights restored." The trial court found the petition insufficient

to warrant the re-litigation of the long, contentious custody battle which has consumed the

Child's entire life thus far. The custody order which Mother seeks to modify has been in effect

for less than two years, and has not yet been given a chance to establish a pattern or any

continuity in the Child's life. The Child has not had the opportunity to complete pre-school

under the current order without Mother's interference. Furthermore, Mother has demonstrated
    '1f\
an ability to act in the Child's best interests and to comply with the current order, and had been
    I\
sanctioned for her contempt just prior to her modification request.

            On appeal, Mother raises the .following issues in her concise statement of matters

complained of:

            1.   "The Trial Court committed an error of law by denying Mother's Petition for

                 Modification of Custody without a hearing to determine if said modification would be

                 in the best interest of the child pursuant to 23 Pa.C.S.A. §5338(a).»

            2. "The Trial Court committed an error of law by denying Mother's Petition for

                 Modification of Custody by finding that Mother was required to aver a substantial

                 change in circumstances in her Petition for Modification."
3
    Petition for Modification,   1s 4 and 5.

                                                       3
        3. "The Trial Court committed an error of law by denying Mother a hearing on her

            Petition for Modification which violated Mother's procedural and substantive due

            process rights under the United States Constitution and Pennsylvania Constitution."4

        Beginning with the second issue of error set forth above, Mother seems to claim that the

trial court applied the wrong standard in denying Mother's petition for modification, because the

trial court required Mother to "aver a substantial change in circumstances." This issue is without

merit as this simply was not the court's reasoning.

        In its order denying Mother's modification petition, the trial court noted that Mother

alleged no change of circumstances whatsoever, and citing Daniel KD. v. Jan MR 301

Pa.Super. 36, 446 A.2d 1323 (1982), stated:

                 The first inquiry in a custody modification proceeding is whether, since
        the entry of the existing custody order, there has been a substantial change in
        circumstances that would justify a court's reconsideration of the custody
        disposition.

               "'To permit a party to relitigate a subject of relative fitness of parents to
        have custody of children by an inquiry into the same or other facts existing at the
        time of or prior to' the former decree would lay a foundation for interminable and
        vexatious litigation ... '"

        Daniel KD. v. Jan MR 301 Pa.Super. 36, 40, 46, 446 A.2d 1323, 1324~25
        (1982), note 2, citing Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa.Super 22,
        24, 184 A.2d 290, 291 (1962) (quoting Commonwealth ex rel. Crawford v.
        Crawford, 170 Pa.Super. 151, 154, 84 A.2d 237, 238 (1951); Commonwealth ex
        rel. Zaubi v. Zaubi, 275 Pa.Super, 294, 418 A.2d 729 (1980), aff'd on other
        grounds, 492 Pa. 183, 423 A.2d 333 (1981).

However, the standard for modification, as codified by section 5338 of the Child Custody Act, is

that the "court may modify a custody order to serve the best interest of the child."5 This is in fact




4 Mother's "Concise Statement of Errors Complained of on Appeal Pursuant to Pennsylvania Rule of Appellate
Procedure l 925(a)(2)(i)" ~s 1 through 3.
5
  23 Pa.C.S.A. § 5338.


                                                       4
the standard applied by the trial court in its denial of Mother's modification request, as noted in

its findings. The trial court expressly found that:

            The Child's best interests would not be served by re-litigating the custody

            order and Mother's desire to do so is rife with potential harm to the Child,

            and only demonstrates her continued disregard for the Child's health, safety,

            welfare and best interests.6

The trial court further reiterated its findings from the final custody order of March 25, 2014,

"that Mother is unwilling to cooperate with Father on the most basic level, that Mother refuses to

accept the diagnoses of the Child's medical providers, refuses to accept the recommendations of

the custody evaluators, and that Mother refuses to co-parent with Father."7

           The comment to the modification section of the Child Custody Act, 23 Pa.C.S.A. §

5338(a), notes the reasoning behind the original 2010 change in the law (effective January 24,

2011 ), citing the standard used by the Supreme Court of Pennsylvania in Karls v. Karls, 518 Pa.

601, 544 A.2d 1328 (1988) (holding "a petition for modification of a partial custody to shared

custody order requires the court to inquire into the best interest of the child regardless of whether

a 'substantial' change of circumstances has been shown"). This standard was also used in

McMillenv. McMillen, 529 Pa. 198, 602 A.2d 845 (1992).

           While some courts have continued to require a showing of a substantial change in

circumstances alongside a review of the best interests of the child, following Karts and

Mcbdtllen, see Gianvito v. Gianvito, 975 A.2d 1163 (Pa. Super. 2009),_given the statutory

changes made in the 2010 codification of 23 Pa.C.S. § 5338, it appears that the only controlling

standard remaining is that of the "best interests of the child." However, the burden of showing


6
    Order dated January 6, 20 i6 at page 4.
7
    Order dated January 6, 2016 at page 3.


                                                   5
that a modification is in the best interest of a child still lies upon the party seeking that

modification. Johns v. Cinci, 865 A.2d 931 (Pa. Super. 2004). See also Pa. R.C.P., No.

1915. lS(b) (providing a form for a Petition to Modify a Custody Order containing a section in

which to assert the reasoning for the proposed modification).

        Mother's petition for modification raised no issues which had not been previously

considered by the trial court during the custody proceedings in March of 2014, and as noted,·

alleged no change in circumstances whatsoever: ·

        4. "The parties live very close to each otherand Mother believes and avers there

            is no reason that the parties cannot enjoy an equally shared custody schedule."

        5. "Additionally, Mother desires to have her legal custody rights restored."

        6. "Mother believes a modification is in the child's best interest to-wit

        (a) Mother is able to provide for the education, psychological, spiritual, emotional

            and physical needs of the child.

        (b) Mother has been the parent who has been the primary caretaker for the child

            throughout the greatest portion of the life of said child.

        (c) It is essential to the child's proper development, stability and general welfare

            that the Mother be permitted to maintain an ongoing normal and meaningful

            relationship with the child.

        (d) It is in the child's best interest that Mother be permitted to provide the child

            with continuing love, attention, guidance, training and education.

        (e) It is in the child's best interest that Mother take an active and appropriate role

            in the child's life.




                                                    6
         (f) It is in the child's best interest that Mother be permitted to provide the child

              with the care, supervision and stability that are necessary for the child's

              physical and emotional development.'"

All of these averments are factors that were considered by the trial court in issuing the final

custody order of March 25, 2014.

         Moreover, the trial court expressly found in the custody order that "Mother continues to

claim that the child has special needs, particularly 'autistic features,' and that the child has

developmental delays, although the medical evidence shows the contrary" and that "Mother

refuses to accept the provider's reports that the child is no longer developmentally delayed.r"

Despite the clear medical evidence to the contrary, Mother continued to tell the Child's school

officials and others that he was developmentally delayed and autistic. After hearings on Father's

motion for special relief, the trial court on December 14, 2014, had to order Mother to cease and

desist from telling others that the Child was autistic. As noted in the trial court's opinion after

Mother's appeal:

         Dr. Foley (the Child's pediatrician) testified that he never thought that the Child
         had any signs of being autistic, that he did not know wh[c Mother would say the
         Child was autistic since there is no indication that he is, 0 that all of the Child's
         developmental milestones were appropriate for his age, and that he is a "normal,
         healthy, four-year old child."!' Despite having heard these. medical professionals
         testify in court, particularly Dr. Foley, who has been treating the Child since birth,
         Mother continues to insist that the Child is autistic.

                The trial court expressly found that Mother's refusal to accept the medical
         testimony and her behavior in this regard is detrimental to the welfare of the
         Child. Nevertheless, Mother wants to litigate this issue and assert her First
         Amendment constitutional rights at the expense of her Child's well being.




8
   Mother's Petition for Modification of a Custody Order, 1s 4 - 6.
9
   Final Custody Order dated March 25, 2014, ~ 7, p. 10.
10
    Hearing transcript, November 21, 2014, p. 12.
11
    Id. at p. 16.


                                                           7
 As noted above, Motlier filed an appeal from this "cease and desist" order to the Superior Court,

 docketed at number 170 WDA 2015, and by order dated October 29, 2015, the Superior Court

affirmed the trial court's order. On November 30, 2015, Mother filed a Petition for Allowance

of appeal to the Supreme Court of Pennsylvania, docketed at number 465 WAL 2015, and by

order dated January 20, 2016, the petition was denied.

        As stated, not only has Mother failed to aver any changes in the Child's circumstances

which would warrant modification or reconsideration, Mother has made no offer to change her

own behavior. Rather, Mother merely has reiterated her desire to continue the litigation and the

discord over her Child's custody. The trial court finds Mother's behavior detrimental to the best

interest of the Child, and to his health, safety and welfare.

        The first and third issues raised by Mother assert      her constitutional   challenge that the trial

court's failure to conduct a hearing on the petition for modification "violated Mother's

procedural and substantive due process rights under the United States Constitution and

Pennsylvania Constitution."12 The trial court finds it ridiculous that, after all the extensive

litigation, the pleadings, hearings and appeals that have been conducted with respect to her
                                                    t

Child, Mother could assert that she has been denied her constitutional right of due process.

        In any case, no existing authority appears to directly address whether a party is entitled to

a hearing on a petition to modify a custody order prior to its dismissal. The only cases addressing

the necessity of a hearing appear to narrowly hold only that a hearing is required prior to any

actual modification of the substantial terms of the custody order. Specifically, the Superior Court

in MO. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014) held that the trial court need not discuss or

delineate the 16 factors in determining what is in the "best interest of the child" or provide


12
  Mother's "Concise Statement of Errors Complained of on Appeal Pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a)(2)(i)" 1s l and 3.


                                                        8
reasons on the record for its decision as stated under section 5323(d) of the Child Custody Act

(relating to an award of custody), when the court is not making an award of custody. It thus

seems to follow, logically, that if the court is not making or modifying an award of custody, that

it is not required to conduct a hearing on the petition. This is particularly appropriate here,

where the moving party has failed to assert any change, or anything that has not been previously

considered by the trial court or the Superior Court. Moreover, Mother, as the petitioner, failed to

articulate how the proposed modification would be in the best interest of the child.

        As discussed above, the burden of showing that a modification is in the best interest of a

child is incumbent upon the party seeking that modification. Johns v. Cinci, 865 A.2d 931 (P~.

Super. 2004). See also Pa. R.C.P., No. 1915.15(b) (providing a form for a Petition to Modify a

Custody Order containing a section in which to assert the reasoning for the proposed

modification). Mother apparently believes that she is entitled to re-start the custody proceedings

just for the asking. Certainly, the Custody Act, the Rules of Civil Procedure and the appellate

precedents do not permit the modification of a custody disposition merely upon the finality of the

previous custody order.

        The litigation of this Child's custody has already been contentious and vexatious thus far.

To permit Mother to begin the custody process again, especially without eve!} an averment of a

change in circumstance, would render interminable the litigation.

                It is axiomatic that the potential harm that may result from the disruption
        of established patterns of care and emotional bonds underscores the need for
        continuity, stability, and finality imparted to custody arrangements. A
        modification of custody is not warranted merely because one parent is
        unhappy with the existing arrangement. Thus, we repeatedly have emphasized
        that a party requesting modification must prove that the alteration of an existing
        custody arrangement is in the child's best interest. (Emphasis added).




                                                   9
 See Jackson v. Beck, 858 A.2d 1250 (Pa.Super. 2004), citing Myers v. Dillomentco, 441

 Pa.Super, 341, 657 A.2d 956 (1995); McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992).

              As stated above, the trial court found that the Child's best interests would not be served

 by r~-litigating the custody order and Mother's desire to do so is rife with potential harm to the

 Child, and only demonstrates her continued disregard for the Child's health, safety, welfare and

 best interests.

              This is not the first instance where Mother has asserted her constitutional rights in

 advance of the Child's best interests, and health; safety and welfare. As discussed above, after

 hearing medi~a~ evidence that the Child was not autistic or developmentally delayed, the trial

 court was compelled to order Mother to refrain from telling health care providers, school

 officials and others that he was so. Rather than accept the pediatrician's findings, which Mother

 refuses to do, Mother appealed from this order, asserting her First Amendment right of free

 speech. The Superior Court affirmed, finding that Mother's untrue statements about the Child

· were not constitutionally protected:

              Based on this evidence, the trial court found that Mother's untrue statements
              regarding Child's mental health and developmental and behavioral progress are
              detrimental to Child's welfare. See Trial Court Opinion, 3/20/15, at 3, 11. The
              findings and analysis of the trial court are amply supported.by the competent
              evidence of record. See id. at 3-6, 9-11; see also id. at 11 ( stating that "Mother's·
              desire to disparage and defame her Child by telling others that he is
              developmentally delayed or that he is not potty trained is not constitutionally
              protected, and Mother's right of free speech cannot supersede the health, safety
              and welfare of her Child."),

                      Additionally, we conclude that the trial court chose the least restrictive
              means to protect the psychological well-being of Child, by narrowly proscribing
              that "Mother shall cease and desist from stating to anyone or inferring that [C]hild
              has autism or developmental delays or other behavioral issues." See Trial Court
              Opinion, 12/24/14, at 2 (unnumbered). Based on the facts and circumstances of
              this particular case, we discern no error of law or abuse of discretion by the trial
              court, and affirm the trial court's Order as to this issue.13
 13
      J.P.W.;Jr.   v. A.N.H., No. 170 WDA 2015, filed October 29, 2015, J-A23015-15,   pp. 13-14.


                                                             10
Likewise, Mother cannot invoke her 14th Amendment right of due process to the detriment of her

Child. In fact, Mother's right of due process has been exhaustively satisfied, as noted in the

procedural history set forth above.14 Mother has had her custody case litigated as much or

perhaps more than arty other parent. As set forth above, Mother's unhappiness with the result of

the custody litigation does not warrant the modification of the current custody order. The

paramount consideration is the best interest of the Child.15 In her petition for modification

Mother has offered nothing that the trial court has not previously considered, and has offered

nothing which will promote the Child's health, safety or welfare, or his best interests.

       Based on the foregoing, the trial court respectfully submits that the order appealed from

dated January 6, 2016 should be affirmed, and that the appeal should be dismissed.



                                                                 BY THE COURT:




Date        ·     ~ .




14
  TI1e procedural history is set forth more fully in the trial court's opinion filed August 20, 2014, docketed at No.
646 WDA 2014, after Mother appealed from the custody order.
15
     23 Pa.C.S.A. §§ 5323(a), 5328(a).



                                                           11
