J-S35003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.R.W.,                                           IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

K.J.W.,

                          Appellant                   No. 146 MDA 2018


              Appeal from the Order Entered December 21, 2017
               In the Court of Common Pleas of Lebanon County
                      Civil Division at No(s): 2013-20723


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 03, 2018

      K.J.W. (Mother) appeals from the December 21, 2017 order denying her

petition for special relief and granting L.R.W.’s (Father) petition for contempt

in the context of this contentious custody matter involving the custody of the

parties’ child, J.W. (Child), born in August of 2003. After review, we affirm.

      In its opinion filed in response to Mother’s Pa.R.A.P. 1925(b) statement

of errors complained of on appeal, the court provided an extensive recitation

of the factual and procedural history of this case, which began in November

of 2013 following Mother’s filing of a custody complaint. Initially, the parties

shared legal custody with Mother having primary physical custody. After a

hearing in July of 2014, the court ordered shared legal custody, but assigned

primary physical custody to Father. See Order, 7/28/14. That order directed

Father to make all primary decisions after consultation with Mother and for
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the parties to engage in counseling. Mother appealed that decision to this

Court, arguing that “the trial court erred in denying her motion to continue

the custody hearing and by requiring her to participate in the custody trial

without counsel.”     K.J.W. v. L.W., No. 1429 MDA 2014, unpublished

memorandum at 1 (Pa. Super. filed April 8, 2015). This Court affirmed the

trial court’s July 28, 2014 order.

      In September of 2015, Father filed a contempt petition, which resulted

in a continuation of the July 28, 2014 order. Thereafter, Father filed a petition

for emergency custody that resulted in the June 1, 2016 order that,

      grant[ed] emergency physical custody to Father pending
      [Mother’s] acquisition of permanent housing. The June 1, 2016
      Order suspended the July 28, 2014 Order while still providing that
      [Mother] have supervised partial custody and directing that
      [Mother] undergo an evaluation before reinstating unsupervised
      partial physical custody. On June 3, 2016, the parties filed a
      Stipulation to Amend Order of Court, which set forth conditions,
      including obligations of [Mother] to notify her counsel of changes
      in [her] housing situation, to allow Father to observe the premises
      where [Mother] was to exercise her partial physical custody
      periods, to provide separate sleeping accommodations for J.W.,
      and reinforcing other conditions set forth in the June 1, 2016
      [o]rder. [The trial court] issued an Order the same day vacating
      the June 1, 2016 Order and adopting the conditions of the June 3,
      2016 Stipulation.

            On August 22, 2017, [Mother] filed her Petition for Special
      Relief alleging that Father had “engaged in a pattern of activity
      with regard to decision making concerning [J.W.] in a unilateral
      and arbitrary manner.” [Mother] has specifically alleged that
      Father was making unilateral decisions regarding sports activities
      and doctor’s appointments, which served to either encroach upon
      [Mother’s] custodial periods or were prohibitive of her attendance.
      [Mother] further alleged that Father had failed to respond to
      [Mother’s] numerous requests in regards to: finding academic
      help for J.W.; meeting with the counselor at the high school

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     regarding J.W.’s attendance the next year; obtaining counseling
     for [Mother] and J.W. through her provider; [providing] contact
     information for care-givers who are with J.W. in various
     capacities; and for participating [in] court-ordered communication
     counseling. [Mother] further alleges that Father was discouraging
     J.W. from meeting with [Mother] at random times other than that
     provided in the Custody Order and was “engaged in a course of
     conduct designed to estrange [Mother] from [J.W.].”

                                   . . .

            On September 8, 2017, Father filed a Petition for Contempt
     alleging that [Mother] had violated the Custody Order and the
     Stipulated Order in the following ways:

           1. [Mother] had failed to provide a valid lease for
           subsequent addresses of residence as obligated in
           custody order;
           2. [Mother] had failed to provide Father with a
           reasonable opportunity to observe the premises
           where [Mother] expects to exercise her periods of
           partial custody as had been ordered;
           3. [Mother] has failed to provide separate sleeping
           accommodations for J.W. as was included in the
           custody order[.]

     [Mother] filed a Response to Father's Petition on October 23,
     2017.

            On December 21, 2017, [the trial court] issued an Order
     denying [Mother’s] Petition for Special Relief and granting Father’s
     Petition for Contempt. [The court] found [Mother] in contempt for
     admitting to administering medication to J.W. that had not been
     prescribed for him and finding that [Mother] interfered with the
     educational decisions of [] Father and/or the school in regards to
     J.W. In so finding, [the court] imposed a $100 fine on [Mother]
     and ordered that [Mother] was not permitted to make any further
     requests for testing or other intervention unless recommended by
     the school or agreed to by the parties. Furthermore, [the court]
     ordered that [Mother’s] overnight visitation rights were suspended
     until further order of court, limited [Mother’s] other visitation
     periods and assessed counsel fees of $200.00 to be awarded to
     Father. [The court] also eliminated [Mother’s] right to request


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       special relief finding that [Mother] had abused such principle by
       filing the petition.

Trial Court Opinion (TCO), 3/16/18, at 2-4 (citations to the record omitted).

       Mother filed this appeal and a concise statement of errors complained

of on appeal in response to the trial court’s order requesting the statement.

See Pa.R.A.P. 1925(b).1         Mother now raises the following issues for our

review:

    1. Did the [c]ourt err in failing to vindicate [Mother’s] right to attend
       medical appointments relating to the minor child, J.W., and essentially
       supporting [Father’s] actions in requiring her removal from medical
       appointments; in manifesting clear prejudice against [M]other and in
       favor of Father; and in precluding Mother from making additional
       requests or seeking intervention with J.W.’s school in the future?

    2. Did the [c]ourt err in eliminating Mother’s right to seek special relief
       from the [c]ourt with regard to matters pertaining to her parental rights
       with regard to the minor child, J.W.?

Mother’s brief at 5.

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

                     [T]he appellate court is not bound by the
              deductions or inferences made by the trial court from
              its findings of fact, nor must the reviewing court
              accept a finding that has no competent evidence to
              support it. ... However, this broad scope of review
              does not vest in the reviewing court the duty or the
              privilege   of   making     its   own    independent
              determination.    ...  Thus, an appellate court is
              empowered to determine whether the trial court’s
              incontrovertible factual findings support its factual
____________________________________________


1 Because this is a children’s fast track appeal, Mother should have filed her
concise statement at the same time she filed her notice of appeal as required
by Pa.R.A.P. 1925(a)(2)(i). The trial court accepted Mother’s late filing and
we likewise will not penalize her for failing to comply with this rule of appellate
procedure.

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           conclusions, but it may not interfere with those
           conclusions unless they are unreasonable in view of
           the trial court’s factual findings; and thus, represent
           a gross abuse of discretion.

     R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
     (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
     2001)). Moreover,

                 [O]n issues of credibility and weight of the
           evidence, we defer to the findings of the trial [court]
           who has had the opportunity to observe the
           proceedings and demeanor of the witnesses.

                 The parties cannot dictate the amount of weight
           the trial court places on evidence.      Rather, the
           paramount concern of the trial court is the best
           interest of the child.     Appellate interference is
           unwarranted if the trial court’s consideration of the
           best interest of the child was careful and thorough,
           and we are unable to find any abuse of discretion.

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

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

     Mother’s first issue encompasses her assertions relating to her right to

attend Child’s medical appointments and to prohibit her from intervening with

Child’s schooling. Most of her argument relating to her first issue centers on

one particular medical appointment and her attempt to schedule a dental

appointment.   Essentially, Mother alleges that the trial court “should have

addressed Mother’s concerns with regard to attendance and involvement in

medical and dental decisions on behalf of her son, and the [c]ourt … failed




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completely in that regard.”      Mother’s brief at 14-15.       She provides no

discussion relating to her intervention in Child’s schooling.

      In response, Father points out that the July 28, 2014 order directed that

all primary decisions were left to Father to determine after he consulted with

Mother. Father also cites the notes of testimony from the December 21, 2017

hearing, which reveal that Mother’s testimony does not support her argument

presented to this Court. Specifically, she testified to her reasons for leaving

the examination room of her own accord, not that she was required to leave.

Father also cites the testimony at the same hearing relating to Mother’s

contacts with Child’s school in which she requested additional testing. This

was done without informing Father, who learned of Mother’s involvement from

a letter he received from the assistant principal of Child’s school.

      The essence of Mother’s argument appears to be an attempt to have

this Court re-find facts and re-weigh the evidence and thus conclude that the

trial court abused its discretion in denying her petition for special relief.

However, our standard of review requires that we “accept findings of the trial

court that are supported by competent evidence of record, as our role does

not include making independent factual determinations.”           C.R.F., III v.

S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). Moreover, “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.” Id. Our review of

the record reveals that the court’s findings and resulting conclusions are




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supported by the record. Therefore, Mother is not entitled to relief based upon

the errors she alleges in her first issue.

      Mother’s second issue relates to the trial court’s prohibiting Mother from

seeking special relief in the future in connection with the custody of Child. In

her brief, Mother again lists the various problems she had relating to her and

Father’s sharing of custody. Specifically, she names Father’s refusal to allow

her to attend Child’s doctor appointments, Father’s interference with her

trying to have tutoring and homework assistance for Child, and Father’s

refusal to provide contact information for Child’s caregivers when Child was

away from home.

      To support her argument, Mother relies on Rule 1915.13, which states:

      At any time after commencement of the action, the court may on
      application or its own motion grant appropriate interim or special
      relief. The relief may include, but is not limited to, the award of
      temporary legal or physical custody; the issuance of appropriate
      process directing that a child or a party or person having physical
      custody of a child be brought before the court; and a direction
      that a person post security to appear with the child when directed
      by the court or to comply with any order of the court.

Pa.R.C.P. 1915.13. In particular, Mother cites Choplosky v. Choplosky, 584

A.2d 340, 343 (Pa. Super. 1990), arguing that pursuant to Rule 1915.13 a

temporary modification of custody would preserve the well-being of children

while more permanent questions about custody can be resolved at a later

date. Additionally, in an attempt to show that the court was hostile to her,

Mother quotes language from the July 28, 2014 order, which states:




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      As it pertains to shared legal custody, in light of the conduct this
      jurist has determined from today’s hearing with respect to the lack
      of cooperation exhibited by Mother, all primary decisions shall rest
      in the hands of Father after consultation with Mother. In the event
      that Mother disagrees with Father’s determination, she has the
      right to bring said matters before the [c]ourt on a Petition for
      Special Relief, but all reasonable decisions, including medical care
      and treatment, as well as education decisions are best left with
      Father.

Mother’s brief at 15-16 (quoting Order, 7/28/14, at ¶ 3). Mother also quotes

part of a statement made by the court to support its finding of Mother in

contempt. Specifically, the court stated:

      Your obsessive-compulsive nature of wanting to know where
      [Child] is at all times, I understand, but when you manifest it by
      making demands on his Father and/or other people who care for
      this child to cause them to almost shut down because you are
      excessive in your demands raises serious questions about your
      mental stability.

Mother’s brief at 17 (quoting N.T., 12/21/17, at 152).

      Mother also relies on the case of Egelman ex rel Egelman v.

Egelman, 728 A.2d 360 (Pa. Super. 1999), which she claims is “somewhat

analogous” to the present matter. In Egelman, this Court held that requiring

the mother of an allegedly abused child to post bond prior to the filing of future

protection from abuse (PFA) petitions on the child’s behalf was in

contravention of the Protection from Abuse Act, 23 Pa.C.S. § 6101 et seq.,

and could not be limited in this manner. Therefore, that portion of the order

on appeal was reversed.       Likewise, Mother suggests that as in Egelman,

where the mother could not be limited in the filing of a PFA petition, she cannot

be denied the right to file a petition for special relief.

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      Lastly, Mother asserts that the court focused on her past behavior and

overlooked her testimony about her completion of an inpatient drug and

alcohol treatment program and that she is attending classes at Harrisburg

Area Community College.       In support of this allegation, Mother relies on

Wiseman v. Wall, 718 A.2d 844, 847 (Pa. Super. 1998), for the proposition

that “a parent’s ability to care for a child must be determined as of the time

of the custody hearing, not as of an earlier time.”

      In response, Father first points to the numerous docket entries that

extend for 25 pages, which are comprised of entries from October 2013 to the

present. Father also quotes the trial court’s opinion, dated March 16, 2018,

that states:

      [T]he custody order does not require [Father] to provide names,
      addresses, and contact information regarding caregivers. In
      particular the Court is concerned that [Mother’s] almost
      obsessive-compulsive desire to know the whereabouts of her son
      at all times and her past criminal conduct of harassment and/or
      interference with a number of people causes the Court concern
      and it will be addressed in my resolution of the special relief.

Father’s brief at 8 (quoting TCO at 8). Father further quotes the trial court’s

statement from the December 2017 hearing, wherein the court indicated that

it was “cognizant of the fact that [Mother] has numerous criminal charges of

harassment, not just to Father, [but] to a school official and also has, I believe,

a summary offense concerning her older daughter, and based on my

observation of her demeanor even today is difficult at times to deal with.”




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Father’s brief at 8-9 (quoting N.T., 12/21/17, at 147). Lastly, Father relies on

the following statement in the trial court’s opinion:

      We contend that this court may properly rely upon its own
      recollection of the testimony and evidence present on the record
      in this matter in consideration of issues relating to custody and
      the petition for special relief, especially when such testimony and
      evidence were offered during a previous custody hearing.

Father’s brief at 9 (quoting TCO at 9).

      Although Mother’s reliance on the Egelman case is logical, we are not

persuaded that it controls the outcome here. A petition filed under the PFA

Act provides for emergency relief, while the Custody Act does not. Here, the

situation does not compel an emergency action by the court and, therefore,

the desired types of relief sought by Mother can be gained through a petition

for the modification of custody. Moreover, the Wiseman analysis, relied upon

by Mother, is obsolete. See P.J.P. v. M.M., No. 1586 MDA 2017 (Pa. Super.

filed April 27, 2018). Mother’s contention that the court should have based

its decision on her actions at the time of the hearing and not what occurred in

the past, is no longer viable; rather, the section 5328(a) factors are what

controls.   Accordingly, we conclude that Mother’s second issue does not

present a basis upon which she can garner relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/03/2018




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