S. Packirisamy v. B. Suresh

J-S09001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SURESH PACKIRISAMY : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

BANUPRIYA SURESH : No. 1858 EDA 2020

Appeal from the Order Entered September 24, 2020

In the Court of Common Pleas of Lehigh County Civil Division at No(s):

No. 2015-FC-1443

SURESH PACKIRISAMY : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

Appellant :

:

:

v. :

:

: No. 1859 EDA 2020

BANUPRIYA SURESH

Appeal from the Order Entered September 16, 2020

In the Court of Common Pleas of Lehigh County Civil Division at No(s):

No. 2015-FC-1443

SURESH PACKIRISAMY : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

BANUPRIYA SURESH : No. 1886 EDA 2020

J-S09001-21

Appeal from the Order Entered September 16, 2020In the Court of

Common Pleas of Lehigh County Civil Division at No(s): No. 2015-FC-

1443

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 20, 2021

Appellant, Suresh Packirisamy, the biological father, (“Father”) appeals

from the September 16, 2020 Final Custody Order (“the Final Custody Order”),

which, inter alia, granted Banupriya Suresh, the biological mother, (“Mother”)

sole legal custody and primary physical custody of S.H.S., a child, born

December 2005, and S.S., a child, born October 2007 (collectively, “the

children”). 1, 2 We affirm.

____________________________________________

1 The Pennsylvania Rules of Appellate Procedure provide that, “[i]n an appeal

of a custody action where the trial court has used the full name of the parties

in the caption, upon application of a party and for cause shown, an appellate

court may exercise its discretion to use the initials of the parties in the caption

based upon the sensitive nature of the facts included in the case record and

the best interest of the child.” Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907

(stating that, “[w]hen an appeal is filed in a custody action, upon application

of a party and for cause shown[,] the appellate court may make a

determination that using the parties’ initials in the caption is appropriate after

considering the sensitive nature of the facts included in the case record and

the child's best interest”). These changes to our Rules were approved on

October 22, 2020, and became effective January 1, 2021, after the current

appeal was filed. Neither party has applied to this Court for the use of initials

in the caption. The caption has been corrected accordingly to reflect the full

names of the parties as they stood upon the trial court record at the time the

appeal was taken. Pa.R.A.P. 904(b)(1) (stating, “[t]he parties shall be stated

in the caption as they appeared on the record of the trial court at the time the

appeal was taken”). We will, however, refer to the minor children involved in

this custody dispute by their initials in order to protect their identities.

2 Father filed numerous appeals of the Final Custody Order, challenging in

each appeal a portion of the Final Custody Order. See Packirisamy v.

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____________________________________________

Suresh at 1886 EDA 2020, 1887 EDA 2020, 1888 EDA 2020, and 1889 EDA

2020. This Court previously dismissed Father’s appeals filed at 1887 EDA

2020, 1888 EDA 2020, and 1889 EDA 2020, and directed Father to address

all issues raised in those three dismissed appeals at the appeal pending at

1886 EDA 2020. Per Curiam Order, 11/17/20, at 1887 EDA 2020; see also

Per Curiam Order, 11/17/20, at 1888 EDA 2020; Per Curiam Order, 11/17/20,

at 1889 EDA 2020.

Father also filed an appeal of a separate September 16, 2020 order directing

the Family Court Office for Lehigh County, Pennsylvania to release S.H.S.’s

expired Republic of India passport and renewed Republic of India passport to

Mother. See Packirisamy v. Suresh at 1858 EDA 2020; see also Trial Court

Order, 9/16/20. Additionally, Father appealed a September 24, 2020 order

directing the Lehigh County Clerk of Judicial Records to release S.H.S.’s

expired Republic of India passport and S.S.’s two expired United States of

America passports to Mother.” See Packirisamy v. Suresh at 1859 EDA

2020; see also Trial Court Order, 9/24/20.

In a November 17, 2020 per curiam order, this Court consolidated Father’s

three appeals (1858 EDA 2020, 1859 EDA 2020, and 1886 EDA 2020) sua

sponte. However, our subsequent review of the record reveals that the

appeals filed at 1858 EDA 2020 and 1859 EDA 2020 are from ancillary orders

implementing the Final Custody Order and are not, themselves, appealable

final custody orders. This Court has long-held that, “a custody order will be

considered final and appealable only if it is both: 1) entered after the [trial]

court has completed its hearings on the merits; and 2) intended by the [trial]

court to constitute a complete resolution of the custody claims pending

between the parties.” G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996).

Here, the trial court entered the Final Custody Order upon conclusion of the

custody hearings and intended that order to resolve completely all the

then-outstanding custody claims between the parties. See Final Custody

Order, 9/16/20, 1, 6 (listing the pending matters resolved therein and stating

that the Final Custody Order superseded all prior custody orders). Therefore,

the Final Custody Order was a final, appealable custody order. G.B., 670 A.2d

at 720. Within the Final Custody Order, the trial court directed that “Mother

may take any and all necessary steps to obtain, maintain, and possess the

[c]hildren’s passports and travel documents.” Final Custody Order, 9/16/20,

at 2-3. In order to effectuate its objective that Mother “obtain, maintain, and

possess” the children’s passports, the trial court entered the aforementioned

two ancillary orders directing the release of the passports then-currently

possessed by the Family Court Office for Lehigh County and the Lehigh County

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The trial court summarized the pertinent factual history as follows:3

The parties were married on March 20, 2005[, in the Republic of]

India, their native country. Father is [currently] unemployed.

Mother is [currently] engaged in [software testing] since October

2019. Father left the marital residence in the summer of 2014.

On October 26, 2015, Father filed a complaint in divorce with a

count for equitable distribution, alimony, [] alimony pendente lite,

counsel fees[,] and costs. At that time, Father averred that he

was residing at the United States Post Office [in] Allentown,

[Pennsylvania]. To date, Mother has remained in the marital

residence [in Lehigh County, Pennsylvania]. The [trial court]

docket reflects that Father's mail has repeatedly been returned to

the [trial] court as “undeliverable.” []Father [subsequently

____________________________________________

Clerk of Judicial Records. These two subsequent ancillary orders did not

involve reconsideration of the underlying custody matter but, rather, were

necessary orders to implement the objective of the Final Custody Order

regarding possession of the passports. Therefore, these two ancillary orders

are not final, appealable custody orders. G.B., 670 A.2d at 720; see also

Kassam v. Kassam, 811 A.2d 1023, 1026 (Pa. Super. 2002).

As such, we dismiss Father’s appeals at 1858 EDA 2020 and 1859 EDA 2020.

We will consider the issues raised in these two now-dismissed appeals within

the context of Father’s challenge to the Final Custody Order at 1886 EDA 2020.

We further note that this Court previously quashed Father’s appeals at 1885

EDA 2020 and 1890 EDA 2020 because, inter alia, the orders in question did

not present a justiciable case or controversy invoking appellate jurisdiction.

Per Curiam Order, 11/17/20, at 1885 EDA 2020; see also Per Curiam Order,

11/17/20, at 1890 EDA 2020 (stating, the appeal was also quashed because

the notice of appeal was filed more than 30 days after the order in question).

3 To quote the trial court, “This has been a long and contentious dissolution of

a marriage and family involving a tortured procedural history due to multiple

family, civil, and criminal court actions and various interlocutory appeals and

petty behavior on the part of both parties.” Trial Court Opinion, 5/24/18, at

9.

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changed his address with the trial court] from [the physical street

address of the United States Post Office in Allentown,

Pennsylvania] to [a post office box located within the United

States Post Office in Allentown, Pennsylvania].

[On] January 29, 2016, Mother filed a related claim for custody,

seeking sole legal and physical custody of the two [children]. On

April 15, 2016, at a custody conference, the parties agreed to

share legal custody of the children, with Mother having primary

physical custody and Father having partial physical custody.

Footnote 3 of that agreed-to [custody] order provided that[,]

"Father is currently living and working in Virginia. Father is

traveling from Virginia to Pennsylvania to pick the children up on

alternating weekends." Father's custody [of the children] was to

occur on alternating weekends, Friday evening until Sunday

evening[,] provided that he had given Mother advance notice of

his itinerary including an address and telephone number where he

[would] exercise his custodial weekend. Additionally, Father was

to provide Mother with advance notice if he did not intend to

exercise his [custodial] weekend[.] The parties agreed to meet at

[a restaurant establishment] in Allentown for the custody

exchange.

The parties continued to litigate divorce[-]related issues[,] as well

as [the terms of] custody. A custody trial was held March 8,

2018[,] and a [then-]final custody order was entered on March

15, 2018[,] by agreement. [This custody order] provided for

shared legal custody, with Mother having primary physical custody

and Father having partial physical custody.

...

On July 10, 2018, Mother filed a petition for modification of [the

March 15, 2018] custody order[.] Mother established that due to

Father's inconsistent pattern of [exercising his custodial time with

the children] and given the extracurricular activities of the

children, modification of the alternating weekend schedule[,] as

well as the four weeks of vacation allotted to each parent, [was]

in the children's best interests.

[]Mother [had] legitimate concerns regarding Father's transiency,

lack of a steady residence, and inconsistent exercise of [custodial]

time. []Father has not had a significant role as a parent. The

[trial court] record from April 20, 2018[,] through early

September[] 2018[,] demonstrate[d] that Father exercised

approximately 40% of his custodial time. The five months are

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filled with repeated instances of Father[] cancelling his full

custodial time and[,] instead, exercising [] one full weekend [of

custodial time] monthly, [] one overnight [stay], or a day[-]visit.

The TalkingParents [service4] records evidence[d] the difficulty

associated with bi-weekly exchanges between Mother and Father.

A few examples [were] demonstrative. The May 25, 2018

weekend concluded with Father calling the police on Mother and

the children. Unbeknownst to the children, they left his custody

with Father's keys. Instead of a simple call to Mother, Father

summoned the police and created more drama for the family. In

June 2018, Mother lost patience with Father's inconsistency and

because he cancelled and then failed to provide proper notice, she

denied him Father's Day visitation. The next weekend, Father was

late to the custodial exchange[,] and Mother denied him a visit.

Finally, Father's hotel records demonstrate[d] that he had

overnight visits with the children during the weekends of March

9-11, 2018, April 4-6, 2018, April 20-23, 2018, July 3, 2018, July

14, 2018, August 24-26, 2018, and September 7-9, 2018. [T]he

hotel receipts identif[ied] Father's address as that of the United

States [P]ost [O]ffice building rather than Father's post office box.

From September 8, 2018[,] through early May 2019, a period of

eight months, Father did not exercise any periods of custody with

the children. Father ha[d] some health issues in September

2018[. B]eginning in October [2018,], after [receiving] notice of

the mortgage foreclosure [pertaining to the marital residence[,]

Father chose to cancel his custodial time with the children because

he had no money[] and no home. Mother repeatedly reached out

to Father, [] expressed concern for him, and inquired as to his

living situation and his health. Mother offered to help[] and even

offered to buy him a phone. Additionally, Mother, on multiple

occasions, [pleaded] with Father to step up as a parent. In

February 2019, she even offered to buy movie tickets for him [so

he could] take the children to a movie. Father declined the offer

and chose not to exercise his custodial time. [T]his lapse in

____________________________________________

4 We take judicial notice that TalkingParents is a web-based and cellular

telephone mobile application that provides co-parenting communication

services including, inter alia, accountable calling with recording features,

secure messaging with unalterable records, and a shared calendar to manage

custody schedules and appointments. See https://talkingparents.com/home

(last visited July 27, 2021).

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J-S09001-21

contact between Father and his [children] further eroded their

relationship.

. . . On May 13, 2019, Father gave notice to Mother that []for the

first time since October 2018[,] he intended to exercise his

[custodial time] on May 29, 2019[.] Mother denied the visit,

stating that it was not feasible. On July 13, 2019, Father told

Mother that he had been at the [restaurant] exchange location on

June 12[, 2019,] in anticipation of her bringing the children and

provided a receipt as proof of his whereabouts. Mother responded

that Father did not tell her that he was suddenly resuming

visitation. The [trial] court [found] that [it was] unreasonable of

Father to have expected Mother and [the children] to wait for

Father every other Friday at [the restaurant exchange site] when

Father was absent for so many months. The means by which

Father attempted to resume visitation only demonstrate[d] how

out of touch he was with the children's needs. Nevertheless,

throughout the rest of the summer of 2019, some visitation

resumed and there was civil contact and communication between

Mother and Father, [which] demonstrate[d] some flexibility with

respect to Father's visits. On three occasions, only [S.S.] visited

with Father.

Meanwhile, the [trial] court proceedings continued, and on August

27, 2019, after a custody conference, [a] custody trial was

scheduled to begin on September 6, 2019. On September 4,

2019, the parties mutually requested a continuance, which was

granted, and the [custody] trial was rescheduled to October 15,

2019. On September 11, 2019, upon consideration of a [trial]

court scheduling conflict, the October 15, 2019 [custody] trial was

rescheduled to October 16, 2019. On October 2, 2019, Father

submitted an unopposed application for [a] continuance. His

request was granted[,] and the [custody] trial was rescheduled to

December 6, 2019.

Significantly, from September 18, 2019[,] through Thanksgiving

2019, Father repeatedly told Mother that he was unable to

exercise his custodial time because he did not have money or a

home. Within ten days of the [start of the] custody trial, Father

demanded to exercise [his custodial time] the weekend after

Thanksgiving. Although the record [was] devoid of events

necessitating police involvement, Father demanded that the

custody exchange take place at [a] police station. He also told

Mother [not] to [] call him and that future non-emergency calls

from her would be reported to the police. Thereafter, in late

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December 2019, Father refused to tell Mother prior to the custody

exchange where he intended on stay[ing] with the children. He

insisted that because the [custody] order did not require

[disclosure of this information], he was not going to [provide the

information.] The [trial] court [found] this to be unreasonably

uncooperative. Mother reminded him that on a prior occasion[,]

he considered sleeping in the car with the children. At [that]

time[,] there was some discussion regarding Father's sub[-]lease

of an apartment in Allentown, [Pennsylvania,] but he told Mother

that he did not have a bed for the children[] and implied that he

would come and get the beds from the marital residence as per

[his] bankruptcy case. Ultimately, the parents acknowledged that

the children only wanted a day[-]visit with Father[,] and on

December 30, 2019, Father exercised a day[-]visit.

This late December [2019] exchange [was] further evidence of

Father's housing instability. For many months [prior], Father

[failed to provide] a verified local residence, and his periods of

[overnight] partial physical custody [of] the children [had] been

at various hotels. At the time of the July 2019 custody conference

held on the pending petitions, Father resided in Niagara Falls, New

York. However, since December 2019, Father's address has

remained a mystery. On December 6, 2019, he offered [a post

office box] as his address, but on December 26, 2019, he asserted

that his address was [an apartment in Allentown, Pennsylvania.]

Sometime thereafter, Father moved to a hotel. In March [] 2020,

he moved to [] New Jersey[.] Father testified that when he [was]

in[-]between residences, he stay[ed] at hotels. Mother []

previously expressed concern about the children's safety and

supervision at hotels. The children [] told her that they were left

unattended in the hotel rooms and general areas [of the hotels]

and that conditions [at the hotels] were not clean.

[On] day three of the custody trial [(July 16, 2020)], Father

testified [via video communication] from an outdoor porch. When

the [trial] court asked Father for his address, he stammered,

hesitated, paused, and then, looked over at the street signs.

Father could not, without assistance, state his address. After [the

custody hearing concluded], Father submitted [] exhibits, which

purportedly confirm[ed] his address[. The exhibits] consist[ed] of

a picture of [an apartment complex] sign, a curbside picture of

the [apartment complex] management office, a picture of a couch,

and a picture presumably of an apartment door from the inside of

an apartment. [If,] in fact[,] Father reside[d] in New Jersey, the

proximity of the residences of the parties [was] 90 minutes apart.

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Beyond this, Mother has been the primary caretaker [of the

children] for the past six years. She [] performed nearly all [] the

parental duties on behalf of the children. Father, by his own

conduct, [] had minimal involvement. Mother [] maintained a

loving, stable, consistent[,] and nurturing relationship with the

children[, which was] adequate for their respective emotional

needs. She [] attended to the daily physical, emotional,

developmental, educational, and special needs of each child.

Moreover, both children excel[led] in [school, which] they have

attended since elementary school. They each have taken musical

instruction for years. The need for stability and continuity in the

children's education, family life, and community life weigh[ed] in

favor of Mother. The [children] are two years apart in age and

have a close sibling relationship. Neither parent has any other

children. Mother is available to care for the children and make[s]

appropriate child-care arrangements.

Neither Mother nor Father have family who reside in the United

States. There have been periods of time when maternal aunt and

maternal grandmother have visited Mother and the children for

extended periods of time. Father filed an eviction action against

maternal grandmother, [when] she [stayed] in the marital

residence [during a previous visit]. The children communicate

regularly with Mother's family in [the Republic of] India via

advanced communication technology. There was no evidence

submitted that the children have contact with Father's family.

In recent months, conversation between Mother and Father has

degenerated. There [was] occasional name[-]calling and

short-tempered remarks. Immediately after the February 7, 2020

incident (discussed below), Father placed a hold on Mother's mail.

Mother was forced to file a petition with the [trial] court to release

her mail and the children's mail. [On] April [7,] 2020, the [trial]

court entered an order [in] an attempt to resolve the dispute[.

H]owever, [] in June [2020,] Mother requested that Father release

her mail.

There are competing petitions related to Father's contact with the

children. Mother asserts that Father has not exercised his

[custodial time] and[,] subsequently, Father asserts that Mother

has interfered and has not brought the children to the custody

exchange [location] per the [trial] court order. The record

demonstrates that Mother consistently made the children

available throughout 2018, 2019[,] and into 2020. It was only

after Father chose not to exercise his custodial time for a

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substantial period of time without justification, that Mother began

to allow the children to refuse visits [with Father].

The [trial] court interviewed the children. They are intelligent and

talented[.] Each [child] verbally expressed concern for their

Father and fear of his temper. Father's aggressive behavior is

evidenced by the children's testimony, Mother's testimony, and

prior [trial] court proceedings. In 2014[,] and 2015, multiple

protection from abuse actions [were] filed between the parties.

However, the children [were] not at risk of harm.

The real concern for the [trial] court in this case [was] the

alienation of the children from their Father. Phone calls previously

were directly between Father and the [children]. However, at

some point in 2019, [the children] stopped responding to his calls

and began to resist visits with him. While Mother [encouraged the

children] to call [Father], she [left] the decision up to them. It is

clear that, as a result of Father's inconsistent contact, his

relationship with his [children was] strained.

[Based upon the trial court’s] interview of the [children], while it

is clear they love their Father, they do not feel comfortable with

him, especially overnight. Overnight[] visits with Father have

been at hotels. If Father [] had an apartment over the past two

or three years, the children have not been there. The children

remember visits with their Father where he was largely

preoccupied with his work on a computer. The children have not

had regular, consistent contact with Father for a substantial period

of time. More recently, [on] February [7,] 2020, there was an

event at the custody exchange [location] that resulted in tears,

video, and the children's refusal to go with Father.

The [trial] court has been assigned to this family for years.

Father's vindictiveness has not abated despite the lapse of time,

his health issues, his financial circumstances, or the COVID-19

[global] pandemic. He [] demonstrated to the [trial] court that he

[was] unable[] to co-parent with Mother. Father has not been

available in any substantial way to participate in and share legal

custody, [and] he has conducted himself contrary to the best

interests of the children.

The children are alienated from their Father, not as a result of

Mother's action[] but[,] rather[,] as a result of Father's conscious

choice not to exercise substantial periods of [custodial time]. He

has not actively participated in the children's lives. Despite this,

the [children] have excelled at school and in their extracurricular

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activities. While it is clear that they love their Father, the children

are no longer comfortable in his care, especially for an overnight

visit at a hotel. The [trial] court can only hope that consistent

day[-]visits on alternating weekends will provide Father with the

opportunity to heal and rebuild the relationship that he once had

with his [children]. Time is of the essence for Father to let go of

his contempt for Mother and focus on the remaining years of his

[children’s] adolescence.

Trial Court Opinion, 9/16/20, at 8-17 (record citations, footnotes, and

extraneous capitalization omitted).

On September 16, 2020, the trial court entered the Final Custody Order,

which, inter alia, denied Father’s February 18, 2020 petition requesting that

Mother be found in contempt of a prior custody order regarding visitation, and

granted Mother sole legal custody and primary physical custody of the

children. Trial Court Order, 9/16/20, at §§ 1, 4, and 5.5 The Final Custody

Order directed Mother to “take any and all necessary steps to obtain, maintain,

and possess the [c]hildren’s passports and travel documents” but prohibited

Mother from traveling internationally with the children without first obtaining

Father’s consent or the trial court’s approval. Id. at § 4. This appeal

followed.6

Father raises the following issues for our review:

[1.] Did the trial court commit an abuse of discretion and error[]

of law [when] the [trial] court failed to conduct an

evidentiary hearing on [Father’s] contempt petition[s] filed

____________________________________________

5 The Final Custody Order stated that it superseded all prior custody orders

and was effective immediately.

6 Both Father and the trial court complied with Pa.R.A.P. 1925.

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[April 4, 2018, and] February 18, 2020, [as well as Mother’s

contempt petition filed May 2, 2019,] and further violated

[Father’s] procedural due process rights by not providing

notice?[7]

[2.] Did the trial court commit an abuse of discretion and error[]

of law[ that violated Father’s] procedural due process rights

by not providing an opportunity [for Father] to be heard and

notice [regarding Mother’s possession of the children’s

passports?8]

[3.] Did the trial court commit an abuse of discretion and error[]

of law when it interpret[]ed and appl[ied] Pa.R.C[iv].P.

1915.4 and Dietrich v. Dietrich, 923 A.2d 461 (Pa. Super.

2007), and refused to dismiss [Mother’s] custody

modification petition?

[4.] Did the trial court commit an abuse of discretion and error[]

of law by modifying physical and legal custody [as an

improper sanction] for [the] adjudication of [Mother’s]

petition for contempt filed May [2], 2019[,] without

considering the best interest[s] of the children?

[5.] Did the trial court commit an abuse of discretion and error[]

of law [when] the [trial] court did not provide [Father] an

opportunity[,] with [] notice[, to be heard on the issue of

the motion] for the children's in-camera interview[s] and

[when the trial court granted Mother] sole legal custody and

[the] exclusive right to obtain, maintain, [and] possess the

children's travel documents[,] including [the] children's

passports[, without notice and in violation of Father’s]

procedural due process rights?

____________________________________________

7 For purpose of ease of disposition, Father’s single issue raised at 1886 EDA

2020 (Father’s Brief at 4 ¶7), his single issue raised at 1888 EDA 2020

(Father’s Brief at 4 ¶8), and his two issues raised at 1889 EDA 2020 (Father’s

Brief at 4-5 ¶¶9 and 10) have been consolidated.

8 This issue encompasses both issues raised by Father in his now-dismissed

appeals docketed in this Court at 1858 EDA 2020 and 1859 EDA 2020.

Father’s Brief at 5 ¶¶11 and 12.

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[6.] Did the trial court commit an abuse of discretion and error[]

of law in its [procedure] for the children's in-camera

interview[s] and further violated Pa.R.C[iv].P. 1915.11(b)?

[7.] Did the trial court commit an abuse of discretion and error[]

of law in setting forth an order that is contrary to a proper

consideration of the evidence of record as applied to the

custody factors set forth in 23 Pa.C.S.A. § 5328(a)?

[8.] Did the trial court commit an abuse of discretion and error[]

of law when it failed to recuse from [the] custody action and

its related claims [when the trial court] has been acting in

violation of the law[ and has shown] a partial[] biased

against [Father]?

[9.] Did the trial court commit an abuse of discretion and error[]

of law in the contempt determination [when] the [trial] court

failed to consider various facts, evidence, and testimony?

Father’s Brief at 2-5 (extraneous capitalization omitted).9

In his first issue, Father challenges the trial court’s order denying his

April 4, 2018 petition to find Mother in contempt of the June 27, 2017 custody

order,10 his February 18, 2020 petition to find Mother in contempt of the March

15, 2018 custody order,11 and the trial court’s granting of Mother’s May 2,

2019 petition to find Father in contempt of the March 15, 2018 custody

____________________________________________

9 Father’s brief was filed by his now-counsel of record, Joshua L. Thomas,

Esquire. Mother, who represents herself, pro se, did not file a brief.

10 Father alleges that Mother violated the June 27, 2017 custody order by

taking the children to Disney World in Florida without first obtaining Father’s

agreement to the trip. Father’s Petition for Contempt, 4/4/18, at ¶7.

11 Father contends Mother violated the March 15, 2018 custody order on

multiple occasions by, inter alia, failing to bring the children to the custody

exchange location, failing to notify Father about medical appointments and

school activities, and discussing legal issues in front of the children. Father’s

Petition for Contempt, 2/18/20, at ¶5.

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order,12 on the grounds that the trial court failed to conduct an evidentiary

hearing and violated his due process rights by not providing notice of a

contempt hearing. Father’s Brief at 65-73.

In reviewing orders denying, or granting, petitions of contempt, this

Court is

limited to determining whether the trial court committed a clear

abuse of discretion. Moreover, much reliance is given to the

discretion of the trial [court]. Accordingly, we are confined to a

determination of whether the facts support the trial court's

decision. Also[,] in civil contempt proceedings[,] the complaining

party has the burden of proving by a preponderance of the

evidence that a party violated a court order.

Chrysczanavicz v. Chrysczanavicz, 796 A.2d 366, 368-369 (Pa. Super.

2002) (citations, quotation marks, and original brackets omitted). “[T]he five

elements deemed essential to a civil contempt adjudication are: (1) a rule to

show cause why attachment should issue; (2) an answer and hearing; (3) a

rule absolute; (4) a hearing on the contempt citation; and (5) an

adjudication.” Id. at 369 (citation and original quotation marks omitted).

These five elements protect both the party against whom the allegations of

contempt are lodged, as well as the complaining party, so that both parties

have an opportunity to be heard. Id. ‘‘Fulfillment of all five factors is not

mandated, however. The essential due process requisites for a finding of civil

____________________________________________

12 Mother asserts that Father violated the March 15, 2018 custody order by

“not visit[ing] the children since Oct[ober] 2018.” Mother’s Petition for

Contempt, 5/2/19, at ¶5.

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contempt are notice and an opportunity to be heard.’’ Harcar v. Harcar, 982

A.2d 1230, 1235 (Pa. Super. 2009) (citations, original quotation marks, and

original brackets omitted).

Here, Father contends that the trial court failed to provide him notice of

an evidentiary hearing on his petitions for contempt, as well as Mother’s

petition for contempt, and refused to conduct a hearing on the matters at

which time Father could present his argument. Father’s Brief at 66. In

denying Father’s petitions for contempt and granting Mother’s petition for

contempt, the trial court stated,

On April 4, 2018, Father filed his petition for [] contempt [of] the

custody order, dated June 27, 2017[.] Father alleged that Mother

traveled to Disney World [in Florida] on [] March 23, 2018[,] in

violation of paragraph 16 of the June 27, 2017 [custody] order.

Paragraph 16 of the June 27, 2017 [custody] order solely

addressed relocation of the residence of the children. There is no

evidence to suggest that Mother attempted to relocate the

children to Florida in violation of paragraph 16 of the [custody]

order.

...

Related to Father's absence, Mother[,] on May 2, 2019, [] filed a

petition for contempt, in which she asserts that Father has not

visited the children since October 2018. Mother's petition is

granted and Father is adjudicated in contempt. Shortly after

Mother filed her petition, Father's pattern of behavior abruptly

changed. On May 13, 2019, Father gave notice to Mother that

[]for the first time since October 2018[,] he intended to exercise

his [custodial time] on May 29, 2019[.] Mother denied the visit,

stating that it was not feasible. On July 13, 2019, Father told

Mother that he had been at the [restaurant] exchange location on

June 12[, 2019,] in anticipation of her bringing the children and

provided a receipt as proof of his whereabouts. Mother responded

that Father did not tell her that he was suddenly resuming

visitation. The [trial] court [found] that [it was] unreasonable of

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Father to have expected Mother and [the children] to wait for

Father every other Friday at [the restaurant exchange site] when

Father was absent for so many months. The means by which

Father attempted to resume visitation only demonstrate[d] how

out of touch he was with the children's needs. Nevertheless,

throughout the rest of the summer of 2019, some visitation

resumed and there was civil contact and communication between

Mother and Father, [which] demonstrate[d] some flexibility with

respect to Father's visits. On three occasions, only [S.S.] visited

with Father.

...

On February 18, 2020, Father filed a petition for contempt of a

custody order and alleged that Mother willfully disobeyed the

March 15, 2018 [custody] order by failing to bring the children for

visits with him on June 15, 2018[,] June 30, 2018[,] June 28,

2019[,] July 12, 2019[,] November 29, 2019[,] and January 10,

2020[,] and by failing to unlock her car doors [during a custodial

exchange] on February 7, 2020. Father also alleged that Mother

would bring only one child to the [custodial] visit, failed to return

calls for the children, failed to notify him of dental and medical

appointments, school conferences[,] and child[-]care issues,

failed to provide him with [a] copy of the [children’s] green

card[s], and refus[ed] to discuss custodial issues with the

children.

Regarding June 15, 2018, Mother did not provide the children to

Father because he notified her that he would be picking them up

on June 16, 2018. Regarding the June 30, 2018 custodial visit[,]

Father timely advised Mother[, on June 27, 2018,] that he was

only exercising custody on Saturday night[,] June 30, 2018. The

pick-up time was 10:00 [a.m.] Mother appeared and waited until

10:04 [a.m.] and Father had not shown up. Father texted Mother

to say that he was running late[] and would be there at

1:00 [p.m.] While the [custody] order provides [that] the parties

should be flexible, Mother was not required to make the children

available three hours after the [custodial] exchange time. On

June 28, 2019, Father appeared for the custod[ial] exchange at

[the restaurant exchange site] and texted Mother at 6:16 [p.m.]

However, there [was] no communication regarding the exchange

in TalkingParents. Similarly, on July 12, 2019[,] Father appeared

at [the restaurant exchange site] without providing advanced

notice to Mother.

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Father showed up unexpectedly [for custodial exchanges] after

having consistently missed his custodial time for the preceding

eight to nine months. It [was] unreasonable for Father to expect

Mother to bring the children to [the restaurant exchange site] as

per [the custody] order every alternating Friday, when Father's

pattern of behavior demonstrate[d] that he [chose] not to

exercise his custodial time. It [would be] detrimental to the best

interests of the children to wait at a custody exchange [site] twice

a month only to have their Father never show up. While the

[custody] order require[d] Mother to bring the children to the

[custodial] exchange [site], and [did] not require[] Father to

provide prior notice to Mother, eight or nine months [] passed

where Father failed to exercise his custodial time. Mother's

non-appearance [was] not contemptuous given Father's conduct

and pattern of behavior.

On November 29, 2019, there was an argument at the [custody]

exchange [site,] which ultimately resulted in Mother leaving with

the children. On January 9, 2020, the day before the scheduled

January 10, 2020 custodial exchange, Father advised Mother that

he wanted to exercise his custodial time. However, Mother

responded that the children [were] not willing to go and that they

ha[d] homework. Mother indicated that the children [were]

growing more resistant to visiting their Father. Father did not

respond to Mother's statements regarding the children's

resistance[] but[,] rather[,] appeared at [the restaurant exchange

site]. Mother and the children did not appear. Just a few days

later, Mother and the children suggested that they resume contact

between Father and [the children] with a dinner visit, but Father

rejected the offer and scolded Mother for having a "habit of not

following the custody order." Finally, on February 7, 2020, Mother

and Father both appeared for the custodial exchange [site]. The

children were resistant and did not want to get out of their

Mother's car. Father physically grabbed [S.S.] The [trial] court

viewed a recording of part of the incident. There was crying and

yelling. A passerby appeared to be concerned about what was

happening. Ultimately, Mother locked her car [doors] and would

not release the children to Father. Father appeared frustrated,

angry, and aggressive.

Trial Court Opinion, 9/16/20, at 10, 12, 20-21 (record citations and

extraneous capitalization omitted).

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A review of the record demonstrates that the trial court conducted a

hearing on, inter alia, Father’s petitions for contempt, Mother’s petition for

contempt, and Mother’s petition for modification of the March 15, 2018

custody order on December 6, 2019, December 26, 2019,13 and July 16,

2020.14 After the trial court conducted the December 2019 custody hearings,

Father filed his February 18, 2020 petition for contempt alleging that Mother

violated the March 15, 2018 custody order. Father received notice that his

petition for contempt was to be considered by the trial court at the next

custody hearing. See Trial Court Order, 2/20/20; see also Trial Court Order,

3/16/20; Trial Court Order, 4/7/20; Trial Court Order, 4/24/20; Trial Court

Order, 6/3/20.15 From the outset of the custody hearings, Father was aware

that the purpose of the custody hearings, in part, was to address his April 4,

2018 petition for contempt and Mother’s May 2, 2019 petition for contempt.

____________________________________________

13 The trial court’s various orders scheduling the December 2019 custody

hearings stated that the purpose of the hearings was for consideration of

Father’s petition for contempt filed on April 4, 2018, and his October 30, 2019

emergency motion to grant relief in the divorce proceeding. The hearings

were also held to address Mother’s petition for modification of the March 15,

2018 custody order and two petitions for contempt. See Trial Court Order,

11/20/19; see also Trial Court Order, 12/11/19.

14 The trial court order scheduling the July 16, 2020 custody hearing stated

that the purpose of the hearing, in addition to the items considered at the

December [2019] custody hearings, was to consider Father’s February 18,

2020 petition for contempt of a prior custody order. Trial Court Order, 6/3/20.

15 The third session of the custody hearing was rescheduled multiple times

due to the COVID-19 global pandemic and the closure of, inter alia, the Court

of Common Pleas of Lehigh County.

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See N.T., 12/6/19, at 4 (reiterating that the purpose of the custody hearing,

in part, was to consider Mother’s May 2, 2019 petition for contempt); see

also id. at 47 (indicating that all outstanding matters, including Father’s April

4, 2018 petition for contempt, will be addressed as part of the custody

hearings). A review of the July 16, 2020 custody hearing transcript

demonstrates that Father had ample opportunity to present his argument and

evidence in support of his contempt petitions, as well as defend against

Mother’s contempt petition. See, e.g., N.T., 7/16/20, at 23-68. Furthermore,

Father had the opportunity to question Mother about details pertaining to the

contempt petitions. See, e.g., N.T., 12/26/19, at 37-45. The trial court

provided Father with notice that the trial court would address his April 4, 2018

petition for contempt, as well as Mother’s May 2, 2019 petition for contempt

at all three of the custody hearings and further provided notice that the trial

court would consider his February 18, 2020 petition for contempt at the July

16, 2020 custody hearing. At all three hearings, Father had the opportunity

to be heard and to present evidence in support thereof, as well as question

Mother. Therefore, the essential due process requirements for Father’s

contempt petitions have been satisfied, as those requirements apply to Father.

Consequently, Father’s first issue is without merit.

Father’s second issue challenges the trial court’s Final Custody Order,

as it pertains to the release of the children’s expired and unexpired passports

to Mother, on the grounds that the Final Custody Order violates Father’s due

process rights. Father’s Brief at 75-79. Specifically, Father argues that

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Mother did not request possession of the passports in a motion or petition and

the trial court directed that the passports be released to Mother without

providing Father notice of this issue. Id.

Father’s issue of whether a procedural due process violation occurred

presents a question of law for which our standard of review is de novo and

our scope of review if plenary. S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super.

2018).

In custody hearings, parents have at stake fundamental rights:

namely, the right to make decisions concerning the care, custody,

and control of their child. See Troxel v. Granville, 530 U.S. 57,

[] (2000); see also [U.S. CONST. amend. V and XIV]; [see,

generally,] D.P. v. G.J.P., [] 146 A.3d 204 ([Pa.] 2016).

Due process must be afforded to parents to safeguard these

constitutional rights. “Formal notice and an opportunity to be

heard are fundamental components of due process when a person

may be deprived in a legal proceeding of a liberty interest, such

as physical freedom, or a parent's custody of [his or] her child.”

J.M. v. K.W., 164 A.3d 1260, 1268 (Pa. Super. 2017) (en

banc)[, ]quoting Everett v. Parker, 889 A.2d 578, 580

(Pa. Super. 2005)[.] It is well[-]settled that[,] “procedural due

process requires, at its core, adequate notice, opportunity to be

heard, and the chance to defend oneself before a fair and impartial

tribunal having jurisdiction over the case.” [J.M., 164 A.3d at

1268] n.5[, ]citing Everett[,] 889 A.2d [at] 580[;] see also Garr

v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001). “Due process is

flexible and calls for such procedural protections as the situation

demands.” See, e.g., In re Adoption of Dale A., II, [] 683 A.2d

297, 300 ([Pa. Super.] 1996)[.]

S.T., 192 A.3d at 1161 (emphasis omitted).

As discussed supra, one purpose of the custody hearings was to address

Mother’s October 28, 2019 petition for contempt. In this contempt petition,

Mother asserted that Father failed to comply with the trial court order requiring

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Mother and Father “to take all reasonable measure[s] to [e]nsure that their

children’s passports remain[ed] current and renewed within a reasonable time

of expiration.” See Trial Court Order, 6/27/17; see also Mother’s Petition for

Contempt, 10/28/19. The record reveals that Father received multiple notices

regarding the scheduling of and purpose of the custody hearings, as noted

supra. Father, therefore, received notice as required to protect his due

process rights. Moreover, Father was notified prior to the start of the first

custody hearing on December 6, 2019, that one of the outstanding issues to

be resolved at the conclusion of the custody hearings was the concern

regarding renewal of the children’s passports. N.T., 12/6/19, at 4. By

attending and participating in the custody hearings, Father received adequate

notice. At the hearings, Father had ample opportunity to present argument,

introduce evidence, and cross-examine Mother regarding the passports and

who should retain possession of the documents. Having found that Father

had notice of the trial court’s intent to consider issues surrounding possession

of the children’s passports and that Father had an opportunity to be heard,

we find Father’s second issue to be without merit.

Moreover, the Child Custody Act defines “legal custody” as “[t]he right

to make major decisions on behalf of the child, including, but not limited to,

medical, religious[,] and educational decisions.” 23 Pa.C.S.A. § 5322

(emphasis added). “When one parent has sole legal custody, that parent has

final authority to make decisions, regardless of whether the other parent

agrees or disagrees.” M.P. v. M.P., 54 A.3d 950, 953-954 (Pa. Super. 2012).

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It is axiomatic that, subject to specific orders issued by the trial court,

international travel and the maintenance of related government travel

documents constitute major decisions which fall within the purview of the

parent who retains legal custody of the child. Therefore, we discern no error

in the trial court’s decision that Mother, as the parent with sole legal custody

of the children, should receive possession of the children’s passports, of which

all but one was expired. The trial court, furthermore, protected Father’s right

to provide input concerning the children’s international travel, by requiring

Mother to first obtain either Father’s permission, or a trial court order, before

undertaking international travel with the children.

In his third issue, Father claims the trial court erred in applying

Pennsylvania Rule of Civil Procedure 1915.4 and this Court’s decision in

Dietrich, supra. Father’s Brief at 15-20. Specifically, Father contends that

the trial court failed to schedule a custody trial on Mother’s petition to modify

custody within 180 days. Id.

Pennsylvania Rule of Civil Procedure 1915.4, in pertinent part, states,

Rule 1915.4. Prompt Disposition of Custody Cases

...

(b) Listing Trials Before the Court. Depending upon the

procedure in the judicial district, within 180 days of the filing of

the complaint either the [trial] court shall automatically enter an

order scheduling a trial before a judge or a party shall file a

praecipe, motion or request for trial, except as otherwise provided

in this subdivision. If it is not the practice of the [trial] court to

automatically schedule trials and neither party files a praecipe,

motion or request for trial within 180 days of filing of the pleading,

the [trial] court shall, sua sponte or on motion of a party, dismiss

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the matter unless a party has been granted an extension for good

cause shown, or the [trial] court finds that dismissal is not in the

best interests of the child. The extension shall not exceed 60 days

beyond the 180[-]day limit. A further reasonable extension may

be granted by the [trial] court upon agreement of the parties or

when the [trial] court finds, on the record, compelling

circumstances for a further reasonable extension. If an extension

is granted and, thereafter, neither party files a praecipe, motion

or request for trial within the time period allowed by the extension,

the [trial] court shall, sua sponte or on the motion of a party,

dismiss the matter unless the [trial] court finds that dismissal is

not in the best interests of the child. A motion to dismiss,

pursuant to this rule, shall be filed and served upon the opposing

party. The opposing party shall have 20 days from the date of

service to file an objection. If no objection is filed, the [trial] court

shall dismiss the case. Prior to a sua sponte dismissal, the [trial]

court shall notify the parties of an intent to dismiss the case unless

an objection is filed within 20 days of the date of the notice.

(c) Trial. Trials before a judge shall commence within 90 days of

the date the scheduling order is entered. Trials and hearings shall

be scheduled to be heard on consecutive days whenever possible

but, if not on consecutive days, then the trial or hearing shall be

concluded not later than 45 days from commencement.

(d) Prompt Decisions. The [trial court’s] decision shall be

entered and filed within 15 days of the date upon which the trial

is concluded unless, within that time, the [trial] court extends the

date for such decision by order entered of record showing good

cause for the extension. In no event shall an extension delay the

entry of the [trial] court's decision more than 45 days after the

conclusion of trial.

Pa.R.Civ.P. 1915.4(b)-(d).

The Dietrich Court, in discussing our Supreme Court’s intent in enacting

Rule 1915.4, stated,

Rule 1915.4(b) provides two specific procedures for listing custody

trials, either of which must occur within 180 days of the date the

custody complaint was filed: (1) an automatic court order

scheduling a trial before a judge; or (2) either party's filing a

praecipe, motion[,] or request for trial. [Rule 1915.4] provides

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for only one exception to the 180–day time limit, that is, a 60-day

extension on a showing of good cause. If neither of the stated

procedures is followed, and no extension is filed or granted, the

[trial] court shall dismiss the matter.

Dietrich, 923 A.2d at 465 (citations and quotation marks omitted). The

Dietrich Court further held, “the language of the rule dictates that dismissal

must be automatic, thus making it unnecessary for a party to petition for

dismissal.” Id. The Dietrich Court recognized, however, that local rules of

court may control or alter the timeframe in which a custody case must be

brought to trial. Id. The Lehigh County Local Rules of Court do not set forth

a time parameter in which a custody case must be brought to trial. 16 See

Lehigh Ct. Civ.P.R. 1915.4, available at https://www.lccpa.org/family/LCCPA

FamilyCourtRules.pdf (as of July 14, 2021).

Here, Father’s challenge to the trial court’s application of Rule 1915.4

presents a pure question of law for which our standard of review is de novo

____________________________________________

16 Lehigh County Local Rule of Civil Procedure 1915.4, in pertinent part, states,

Rule 1915.4 Prompt Disposition of Custody Cases.

Attorney Appearance. Continuance.

(a) Complaints for custody, petitions for modification, and

petitions for contempt shall be scheduled for an office

conference, except where agreements have been reached in

mediation. Conferences shall proceed in accordance with

Pa.R.C[iv].P. 1915.4-2(a) and Lehigh County Rule of Civil

Procedure 1915.4-2(a) [(neither of which impose a time

parameter in which the custody trial must be scheduled or

commence)].

Lehigh Ct. Civ.P.R. 1915.4, available at https://www.lccpa.org/family/LCCPA

FamilyCourtRules.pdf (as of July 14, 2021).

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and our scope of review is plenary. Harrell v. Pecynski, 11 A.3d 1000, 1003

(Pa. Super. 2011) (stating, “[t]he correctness of the trial court’s application

of a Rule of Civil Procedure raises a question of law . . . [and, as] with all

questions of law, our standard of review if de novo and our scope of review is

plenary”). As a guiding principle, procedural rules “shall be liberally construed

to secure the just, speedy and inexpensive determination of every action or

proceeding to which they are applicable.” Pa.R.Civ.P. 126. Additionally, “It is

axiomatic that in custody disputes, the fundamental issue is the best interest

of the child.” Harrell, 11 A.3d at 1005.

In denying Father’s motion to dismiss Mother’s petition to modify

custody for failure to schedule a custody hearing within 180 days, the trial

court stated,

In his motion, Father contends that the [trial] court should dismiss

the July 10, 2018 petition for modification of a custody order filed

by Mother because it was not timely resolved as required by [Rule]

1915.4.

As explained in the memorandum opinion entered September 16,

2020, disposition of [Mother’s] petition for modification [of the

March 15, 2018 custody order] was delayed as a result of [Father’s

April 13, 2018] appeal to [this Court of the March 15, 2018

custody order.] The appellate record was not remitted back to

[the trial court] until April 29, 2019. Despite [Father’s]

contention, there has been no violation of [Rule] 1915.4. The

[trial] court timely issued a trial scheduling order for disposition

of both [Mother’s petition to modify custody and Father’s petition

to dismiss the same.] Due to the pendency of [Father’s] appeal,

the [trial court’s action in the instant case] was stayed from April

13, 2018[,] until the case was remitted back to [the trial court]

on April 29, 2019. Thus, only 120 countable days (from April 29,

2019[,] to August 27, 2019,) elapsed between filing the July 10,

2018 petition [to modify custody] and the August 27, 2019 trial

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scheduling order, far less than the 180 days permitted by Rule

1915.4.

Trial Court Order, 9/16/20, at n.1. (extraneous capitalization omitted).

The record demonstrates that on April 13, 2018, Father filed two notices

of appeal that collectively challenged numerous trial court orders, including a

challenge to the March 15, 2018 custody order.17 While the appeal was

pending, on July 10, 2018, Mother filed a petition to modify the March 15,

2018 custody order. On August 24, 2018, the trial court, noting the pending

appeal, stayed Mother’s petition for modification pending further court order.18

Trial Court Order, 8/24/18. On January 16, 2019, this Court affirmed the

____________________________________________

17 Father’s appeals were docketed by this Court at docket numbers 1204 EDA

2018 and 1205 EDA 2018. In a May 18, 2018 per curiam order, this Court

consolidated the appeals.

18 Generally, after a notice of appeal is filed, the trial court is without

jurisdiction to proceed further in the matter that is the subject of the appeal.

Pa.R.A.P. 1701(a). Pennsylvania Rule of Appellate Procedure 1701(c),

however, permits the trial court to proceed with matters that are collateral to

or separate from the particular issue, item, or claim involved in the appeal.

Pa.R.A.P. 1701(c); see also Sutliff v. Sutliff, 489 A.2d 764, 779 (Pa. Super.

1985) (stating, Rule 1701(c) is “intended to prevent a pending appeal from

affecting separate disputes between other parties or involving separate

subject matter” (original quotation marks omitted)), aff’d, 528 A.2d 1318 (Pa.

1987). Moreover, Rule 1701(b)(1) permits the trial court, inter alia, to

preserve the status quo of the case pending appeal.

Because Father’s appeal involved issues surrounding the March 15, 2018

custody order and Mother’s petition requested the modification of the March

15, 2018 custody order, the trial court was without jurisdiction to address

Mother’s petition for modification while Father’s appeal was pending.

Pa.R.A.P. 1701(a) and (c). The trial court was permitted, however, to

maintain the status quo of the case by issuing a stay of Mother’s petition for

modification pending the outcome of Father’s appeal. Pa.R.A.P. 1701(b)(1).

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March 15, 2018 custody order. S.P., 2019 WL 210411, at 1. Our Supreme

Court subsequently denied Father’s petition for allowance of appeal on April

4, 2019, and his application for reconsideration on April 26, 2019. On May 2,

2019, the trial court notified Father of Mother’s petition to modify the March

15, 2018 custody order and scheduled a conciliation conference on June 18,

2019. Notice and Order to Appear, 5/2/19. Upon recommendation of the

custody hearing officer, the trial court ordered the instant case be placed on

the custody trial list for disposition. Trial Court Order, 7/29/19. On August

27, 2019, the trial court ordered the custody hearing to commence on

September 6, 2019. Trial Court Scheduling Order, 8/27/19. Upon a joint

application for continuance, the custody hearing was continued until October

15, 2019. Trial Court Order, 9/4/19. On October 8, 2019, the trial court

granted a joint application for continuance and rescheduled the custody

hearing to commence on December 6, 2019. Trial Court Order, 10/8/19. The

custody hearing commenced on December 6, 2019. On February 20, 2020,

Father filed pro se a motion to dismiss the custody hearing on the ground that

the custody hearing was not scheduled within 180 days of the complaint being

filed. Father’s Motion to Deny and Dismiss the Custody Trial, 2/20/20. The

trial court subsequently denied Father’s motion to dismiss the custody

hearing, citing, inter alia, the closure of the statewide judicial system due to

the COVID-19 global pandemic and the trial court’s “good faith efforts to press

these motions and petitions to closure.” Trial Court Order, 4/7/20. On

September 3, 2020, Father filed a motion to deny and dismiss Mother’s

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petition to modify custody arguing, again, that the trial court failed to schedule

the custody trial within 180 days of Mother filing her petition for modification.

Father’s Motion to Deny and Dismiss [Mother’s] Petition for Modification of

Custody, 9/3/20. The trial court dismissed Father’s motion on September 16,

2020.

The record demonstrates that the trial court complied with Rule 1915.4

when it ordered, on August 27, 2019, that the custody trial commence on

September 6, 2019. The trial court was without jurisdiction to address

Mother’s petition to modify the March 15, 2018 custody order until Father’s

appeal of the March 15, 2018 custody order concluded, which occurred on

April 26, 2019, when our Supreme Court denied Father’s request for

reconsideration of his petition for allowance of appeal. Between April 26,

2019, the date the trial court was first able to act, and the date the trial court

scheduled the custody hearing, August 27, 2019, 123 days elapsed, which is

far less than the 180 days permitted by Rule 1915.4. Therefore, Father’s issue

is without merit.19

____________________________________________

19 To the extent Father asserts that the trial court failed to comply with Rule

1915.4(c) by failing to commence the custody trial within 90 days of the

scheduling order (August 27, 2019), a review of the two joint applications for

continuance of the custody trial demonstrates that Mother and Father waived

all applicable provisions of the Pennsylvania Rules of Civil Procedure governing

the time standards for custody cases. See Application for Continuance,

9/4/19; see also Application for Continuance, 10/8/19. Therefore, any such

assertion is without merit.

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In his fourth issue, Father asserts that the trial court erred, as a matter

of law, and abused its discretion when it granted Mother’s May 2, 2019 petition

for contempt and, as “punishment,” modified the March 15, 2018 custody

order to the detriment of Father.20 Father’s Brief at 21. Father contends that,

as “punishment,” the trial court “stripped him of all legal and physical custodial

rights[.]” Id. at 20.

To reiterate, we review a grant of a petition of contempt in a custody

case to determine if the trial court abused its discretion. Chrysczanavicz,

796 A.2d at 368.

Here, in her petition for contempt, Mother represented that Father

violated the March 15, 2018 custody order by “not visit[ing] with the children

since Oct[ober] 2018.” Mother’s Petition for Contempt, 5/2/19, at ¶¶ 4-5.

The March 15, 2018 custody order required Father, inter alia, to “exercise

partial physical custody of the children on alternating weekends from

6:00 [p.m.] Friday until 6:00 [p.m.] Sunday.” Trial Court Order, 3/15/18, at

§2. In granting Mother’s petition for contempt, the trial court found that from

April 2018, to September 2018, Father exercised only 40% of his custodial

time with the children and there were repeated instances of Father limiting his

custodial time or cancelling his time altogether. Trial Court Opinion, 9/16/20,

____________________________________________

20 We find no merit to Father’s assertion that he was deprived of notice of a

hearing on Mother’s petition for contempt and, further, was deprived of an

opportunity to be heard on such matter. As discussed supra, Father was

apprised that Mother’s petition for contempt was one of several matters to be

addressed as part of the custody hearings.

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at 10-11. The trial court further found that from September 2018, to May

2019, Father did not exercise his right to any custodial time with the children.

Id. at 11.

Contrary to Father’s assertion, the trial court did not modify the March

15, 2018 custody order as “punishment” for finding Father in contempt of said

custody order.21 Rather, the trial court granted Mother’s request to modify

the custody order based upon consideration of the factors set forth in 23

Pa.C.S.A. §5328(a)22 and upon its consideration and determination of the best

____________________________________________

21 The trial court’s basis for granting Mother’s petition for modification of the

March 15, 2018 custody order is set forth in its opinion in support of the Final

Custody Order and has been reproduced infra. See Trial Court Opinion,

9/16/20, at 14-17.

22 Section 5328 of the Domestic Relations Code states,

In ordering any form of custody, the [trial] court shall determine

the best interest of the child by considering all relevant factors,

giving weighted consideration to those factors which affect the

safety of the child, including the following: (1) Which party is more

likely to encourage and permit frequent and continuing contact

between the child and another party[;] (2) The present and past

abuse committed by a party or member of the party's household,

whether there is a continued risk of harm to the child or an abused

party and which party can better provide adequate physical

safeguards and supervision of the child[;] (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

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interests of the children. The trial court granted Mother’s petition for contempt

because Father failed to exercise his physical custody according to the

requirements of the March 15, 2018 custody order. While Father’s failure to

exercise his custodial visits was one factor the trial court considered in

modifying the custody order, it was not the sole factor considered. In

comparison, Father’s failure to exercise his custodial visits in accordance with

the March 15, 2018 custody order was the factor the trial court most

considered in holding Father in contempt. As such, we find Father’s issue to

be without merit.

____________________________________________

child against the other parent, except in cases of domestic

violence where reasonable safety measures are necessary to

protect the child from harm[;] (9) Which party is more likely to

maintain a loving, stable, consistent and nurturing relationship

with the child adequate for the child's emotional needs[;] (10)

Which party is more likely to attend to the daily physical,

emotional, developmental, educational[,] and special needs of the

child[;] (11) The proximity of the residences of the parties[;] (12)

Each party's availability to care for the child or ability to make

appropriate child-care arrangements[;] (13) The level of conflict

between the parties and the willingness and ability of the parties

to cooperate with one another. A party's effort to protect a child

from abuse by another party is not evidence of unwillingness or

inability to cooperate with that party[;] (14) 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) (paragraph formatting omitted).

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In his fifth issue, Father argues that the trial court violated his due

process rights by failing to give him 15-days’ notice of the children’s interviews

by the trial court via advanced communication technology. Father’s Brief at

27. In his sixth issue, Father further asserts that the trial court violated

Pennsylvania Rule of Civil Procedure 1915.11(b) by conducting the children’s

interviews via advanced communication technology and not in open court or

in judicial chambers. Id. at 33-34.

As discussed supra, due process, while requiring adequate notice, an

opportunity to be heard, and the chance to defend oneself, must remain

flexible in how its protections are afforded based upon the circumstances of

the individual situation. S.T., 192 A.3d at 1161.

Pennsylvania Rule of Civil Procedure 1915.11(b) states,

The [trial] court may interview a child, whether or not the child is

the subject of the action, in open court or in chambers. The

interview shall be conducted in the presence of the attorneys and,

if permitted by the court, the parties. The attorneys shall have

the right to interview the child under the supervision of the [trial]

court. The interview shall be part of the record.

Pa.R.Civ.P. 1915.11(b).

Here, the record demonstrates that the trial court scheduled the

in-camera interviews of the children for August 25, 2020, and instructed

Father and Mother to submit a list of suggested questions and topics for the

interviews by August 20, 2020. Trial Court Order, 7/31/20. Notice was mailed

to both parties. Id. At this time, neither Mother nor Father were represented

by counsel. On August 14, 2020, Father filed objections to the children’s

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in-camera interviews citing a July 2017 agreement between both parties “not

to introduce [the] children in the court.” Father’s Response and Objections to

the Order Dated July 31, 2020 for the Children[’s] In-Camera Interview[s],

8/14/20. That same day, Mother filed a request to change the interviews from

in-person to virtual due to concerns for the COVID-19 global pandemic.

Mother’s Petition In Request to Change the Children[’s] Interview[s] from

In[-]Person to Virtual Mode due to Pandemic Situation, 8/14/20. On August

19, 2020, Father filed objections to Mother’s request to change the interview

method. Father’s Response and Objections to [Mother’s] Petition, 8/19/20.

On August 25, 2020, the trial court scheduled argument on the various

objections and requests related to the children’s interviews for August 27,

2020.23 Trial Court Order, 8/25/20. Notice was mailed to both parties. Id.

On August 27, 2020, the trial court conducted a hearing concerning the

children’s interviews at which only Mother appeared. N.T., 8/27/20, at 2-7.

The trial court noted that,

The parties were notified by the Family Court Office [of Lehigh

County, Pennsylvania] by telephone on August 25, 2020, that

argument was scheduled for August 27, 2020[,] at 2:00 [p.m.],

and again the parties were notified by [electronic mail] on August

25, 2020, with a copy of the argument scheduling order. Finally,

on August 26, 2020, [the trial] court’s chambers sent the parties

an invitation[, via electronic mail,] to an advanced communication

technology argument.

____________________________________________

23 The trial court order scheduling argument on the objections and requests

concerning the children’s interviews is dated July 25, 2020. This date appears

to be a clerical error, and we deem the order filed August 25, 2020.

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Trial Court Order, 8/27/20, at n.1. At the conclusion of the hearing, the trial

court scheduled the children’s interviews for September 1, 2020, and provided

both Father and Mother the access information for participating in the

interview process conducted via advanced communication technology. Id. at

2. Notice was mailed to both parties. A review of the notes of testimony

demonstrates that only Mother submitted questions and topics in advance of

the children’s interviews. N.T., 9/1/20, at 40. While Mother participated

briefly at the start of the advanced communication technology interviews in

order to facilitate the process, neither she, nor Father, who did not connect to

the advanced communication technology application using the password and

log-in information previously provided, participated in or were able to view the

interviews as they occurred. Id. at 3, 39.

Father was provided notice of the children’s interviews pursuant to the

July 31, 2020 scheduling order, as further demonstrated by his subsequent

objections. The trial court further stated that both Mother and Father were

provided notice of the August 27, 2020 argument concerning Father’s

objections to the interviews and Mother’s request to change the method by

which the interviews were conducted. Trial Court Order, 8/27/20, at 1 n.1.

Notice was also provided, along with access information, to both Father and

Mother concerning the September 1, 2020 interviews of the children. 24 Id. at

____________________________________________

24 In scheduling the children’s interviews, the trial court stated,

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2. Moreover, Father was instructed to submit questions and topics for

discussion in advance of the children’s interviews.25 Based upon the record

before us, we discern no violation of Father’s due process rights with regard

to notice of the children’s interviews and the ability to participate by advance

submission of questions and topics to be discussed. Therefore, Father’s fifth

issue is without merit.26

Regarding Father’s argument that the trial court violated Rule 1915.11

by conducting the children’s interviews via advanced communication

technology and not in open court or in chambers, we find this argument to be

without merit. A trial court has broad discretion in its decision to interview a

child involved in a custody action. Pa.R.Civ.P. 1915.11. In deciding whether,

or how, to interview a child involved in a custody action, the trial court must

remain mindful that “[t]he experience may be traumatic and disruptive” to the

____________________________________________

I’ve agreed with the parents and have said no, no, no, I won’t

interview the children. But now they are of a more mature age

and my concern is that there’s been some damage in the

relationship with [Father], and I wanted to hear from them about

that.

N.T., 8/27/20, at 3.

25 Given the contentious relationship and prior history between Mother and

Father concerning custody of the children, it is axiomatic, and reasonable, that

the trial court did not permit either party to participate in the interviews. See

Rule 1915.11.

26 To the extent that Father’s due process claim, within the context of this

issue, includes a challenge to notice of possession of the children’s passports,

this issue has been addressed supra.

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child and that the best interest of the child must be prioritized. T.D. v. E.D.,

194 A.3d 1119, 1126 (Pa. Super. 2018) (stating that, “The stress and emotion

involved in coming to court to testify, even for an adult, particularly about

situations involving children and their parents, could have an adverse effect

on a child. Placing a child in a position of feeling like he or she has to choose

or opine on even a discrete custody matter could aggravate relationships to

the detriment of the child's best interest. The presence of a child in court is

not always necessary or desirable.” (original quotation marks and brackets

omitted)). A trial court has discretion in conducting a child’s interview, such

as making the interview setting less formal or not wearing a judicial robe, to

alleviate or minimize the “traumatic and disruptive” nature of the interview.

E.C.S. v. M.C.S., ___ A.3d ___, 2021 WL 2177479, at *8 (Pa. Super. Filed

May 28, 2021) (slip opinion).

A review of the record demonstrates that the salient procedural

requirement, under the circumstances of the instance case, has been satisfied

in that the children’s interviews were transcribed in order to assure that a

complete record was established for purpose of appeal. Gerald G. v. Theresa

G., 426 A.2d 157, 161 (Pa. Super. 1981).27 We find no abuse of discretion in

____________________________________________

27 To the extent that Rule 1915.11 procedurally requires that counsel be

present and have the opportunity to question the children, these requirements

are moot given that both Father and Mother were acting on their own behalf

as pro se litigants and the presence of the parents at the interview falls within

the discretion of the trial court. Pa.R.Civ.P. 1915.11. Moreover, the trial court

provided both Mother and Father the opportunity to submit specific questions

and topics of concern prior to the interview.

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the trial court conducting the children’s interviews via advanced

communication technology, especially in light of the COVID-19 global

pandemic. Consequently, Father’s sixth issue is without merit.

In his seventh issue, Father challenged the trial court’s order granting

Mother sole legal custody and primary physical custody of the children on the

grounds that “no evidence or testimony was presented on any of the factors

listed in 23 Pa.C.S.A. § 5328(a), and none of these factors were directly

addressed by the trial court and [the trial court] failed to consider the best

interest of the children.” Father’s Brief at 34.

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 [trial court that]

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.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013), appeal denied, 68

A.3d 909 (Pa. 2013).

Section 5323(d) of the Custody Act mandates that a trial court must

articulate the reasons for its decision in awarding custody prior to the filing of

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a notice of appeal. 23 Pa.C.S.A. § 5323(d) (stating, “[t]he [trial] court shall

delineate the reasons for its decision on the record in open court or in a written

opinion or order”). Moreover, Section 5328(a) of the Custody Act sets forth

explicit factors the trial court must consider when reaching its decision. 23

Pa.C.S.A. § 5328(a).28

Here, Father argues that, “the trial court failed to recognize that Mother

has a pattern of failure to comply with the custody order multiple times,

[breached] the custody agreement, and made irreparable injury to Father and

the children’s welfare[.]” Father’s Brief at 35 (emphasis and extraneous

capitalization omitted). In sum, Father asserts that Mother’s failure to comply

with the March 15, 2018 custody order, of which Father cites 16 specific

instances, demonstrates that both parents are comparable when considering

the factors enumerated in Section 5328(a). Id. at 43-44.

In so arguing, Father asks this Court to reweigh the trial court’s factual

findings and determinations in favor of Father’s assertion that both “[p]arents

are fit, capable of making reasonable child rearing decisions, and willing and

[] able to provide love and care for their [c]hildren [and] evidence a continuing

desire for active involvement in the [children’s lives.]” Id. at 43. This Court’s

role, however, “does not include making independent factual determinations”

____________________________________________

28 See supra, footnote 23 for the Section 5328(a) factors to be considered by

the trial court.

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and we defer to the trial court on issues of credibility and weight of the

evidence. M.J.M., 63 A.3d at 337.

A review of the record demonstrates that the trial court, as

demonstrated by its footnote references to the individual factors enumerated

in Section 5328(a), articulated the reasons for its decision in its written opinion

accompanying the Final Custody Order. Moreover, the record supports the

trial court’s factual findings and consideration of the Section 5328(a) factors,

and we will not reweigh the evidence in favor of Father’s request for joint legal

and physical custody. Consequently, Father’s seventh issue is without merit.

Father’s eighth issue challenges the trial court’s July 9, 2020 order

denying his motion for recusal of the trial judge presiding over the on-going

custody proceeding.29

Our scope and standard of review of an order disposing of a motion for

recusal is well-settled.

We review a trial court's decision to deny a motion to recuse for

an abuse of discretion. Indeed, our review of a trial court's denial

of a motion to recuse is exceptionally deferential. We extend

extreme deference to a trial court's decision not to recuse. We

recognize that our trial judges are honorable, fair[,] and

competent, and[,] although we employ an abuse of discretion

____________________________________________

29 At the time Father filed his motion for recusal, the trial court had not yet

concluded the custody hearing. An order disposing of a motion to recuse does

not become a final, appealable order until the underlying action has been

decided. Interest of D.R., 216 A.3d 286, 291 n.4 (Pa. Super. 2019), aff’d,

232 A.3d 547 (Pa. 2020). Here, Father filed his motion to recuse the trial

judge during the on-going custody proceeding. Therefore, the order denying

Father’s motion to recuse did not become a final, appealable order until the

trial court issued the Final Custody Order.

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standard, we do so recognizing that the judge himself[, or

herself,] is best qualified to gauge his[, or her,] ability to preside

impartially. Hence, a trial judge should grant the motion to recuse

only if a doubt exists as to his or her ability to preside impartially

or if impartiality can be reasonably questioned.

D.R., 216 A.3d at 292 (citation omitted). “[A] party seeking recusal bears

the burden of producing evidence to establish bias, prejudice, or unfairness

which raises a substantial doubt as to the jurist's ability to preside impartially.”

Hvizdak v. Linn, 190 A.3d 1213, 1223 (Pa. Super. 2018) (citation and

original quotation marks omitted), appeal denied, 204 A.3d 364 (Pa. 2019).

Here, Father contends that the trial judge assigned to the custody

proceeding should have recused herself because she acted in violation of the

law, was partial and biased against Father, abused her discretion, and allowed

Mother to “misuse/manipulate the various ‘systems’ from which she desired

to receive benefits in all forms, [] including court orders, residency, income,

aid, support and dissipating marital assets in favor of her, and having caused

irreparable injury to Father and the children’s welfare.” Father’s Brief at 45.

In so arguing, Father fails to produce evidence establishing bias, prejudice, or

unfairness on the part of the trial judge that would raise a substantial doubt

as to the jurist's ability to preside impartially. Father simply disagrees with,

and is dissatisfied with, the outcome of the custody proceeding, and the

disposition of his various motions. Therefore, Father’s issue is without merit.30

____________________________________________

30 To the extent Father’s motion for recusal asserts delay of the custody

proceeding as the ground for the trial judge’s recusal, we concur with the trial

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/20/2021

____________________________________________

court that Father “has clearly been responsible for much of the delay” in

bringing this matter to closure. Trial Court Order, 7/7/20, at n.1.

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