P.J.A. v. H.C.N.

J-S37032-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.J.A. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

H.C.N. : No. 63 EDA 2018

Appeal from the Order Entered December 6, 2017

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

2007-FC-0427

BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 23, 2018

Appellant, P.J.A. (“Father”), files this appeal from the order dated

December 5, 2017, and entered December 6, 2017,1 in the Lehigh County

Court of Common Pleas, awarding H.C.N. (“Mother”) and him shared legal

custody and Father primary physical custody of their minor son P.C.A., born

in August 2006 (“Child”). After review, we affirm the trial court’s order.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The subject order was dated December 5, 2017. However, while the clerk

also provided notice pursuant to Pa.R.C.P. 236(b) on December 5, 2017, the

clerk did not docket the order and notice until December 6, 2017. Our

appellate rules designate the date of entry of an order as “the day on which

the clerk makes the notation in the docket that notice of entry of the order

has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,

our Supreme Court has held that “an order is not appealable until it is entered

on the docket with the required notation that appropriate notice has been

given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113,

115 (1999).

J-S37032-18

The trial court summarized the relevant procedural and factual history,

in part, as follows:

Factual Background

By way of very brief background, the parties met in May of

2005, married in February of 2006, and their child, P.C.A., was

born in August of 2006. They separated in March of 2007, and

[Father] filed for divorce and custody on March 30, 2007.

The matter was initially before the Honorable Maria L.

Dantos, and subsequently before the Honorable William E. Ford

until 2013, at which time it was transferred to the undersigned.

In a Memorandum Opinion issued on May 15, 2009, Judge Ford

observed, “Each party initiated vindictive, immature and selfish

acts against the other party beginning primarily in late 2006 and

then throughout the next two years.” [P.J.A. v. H.C.N.], 2395

EDA 2015 (Pa. Super. February 18, 2018) (unpublished

memorandum) (quoting [P.J.A. v. H.C.N.], 2007-FC-0427 (Trial

Court Opinion, May 15, 2009)).

The docket reflects that in the decade since this case was

initiated, the parties have engaged in highly contentious litigation

with one another. Over the intervening years, the parties have

failed to cooperate and to co-parent their child to such a degree

that they have consistently called upon the [c]ourt to make

fundamental parenting decisions, such as determining where their

child should attend pre-school and elementary school, whether

the child would be permitted to attend his school’s before and after

care program, and whether the child could take the bus home from

school. Most recently, the parties had been operating under the

terms of a Custody Order entered on July 7, 2015.[2]

The current round of litigation stems from a Petition for

Modification filed by [Mother] on April 4, 2017. However, the

precipitating events leading up to the filing of that petition began

approximately two weeks prior. On March 24, 2017, [Father]

obtained an Order Granting Emergency Protection from Abuse

from a Magisterial District Judge on behalf of the parties’ minor

____________________________________________

2Pursuant to this order, which, in fact, was not entered until July 8, 2015, the

parties were granted shared legal and physical custody. See Order, 7/8/15.

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child. (Order, [P.J.A. on behalf of P.C.A., a minor, v.

[H.C.N.]], 2017-PF-0291 (March 24, 2017).) A Temporary

Protection from Abuse Order was entered by the Honorable J.

Brian Johnson on March 27, 2017.

According to [Father]’s Petition for Protection from Abuse,

on March 22, 2017, [Mother] “had several violent outbursts

against [P.C.A.] during an overnight dinner visit[.]” (Petition for

Protection from Abuse, March 27, 2018, at 3.) The minor child

allegedly reported to [Father] that [Mother] grabbed the child’s

book bag, screamed at him so close to his face that her spit hit

his face, and she threw an iPad on the floor. ([Id.]) The

Temporary Protection from Abuse Order granted [Father]

temporary custody of the parties’ minor child.

In response, [Mother] filed a Petition for Modification in the

parties’ custody matter. The undersigned held hearings on the

final PFA order and the custody petition. On May 22, 2017, after

conducting hearings on April 12, 2017, May 5, 2017, and May 19,

2017, which included an [in camera] session with the minor child

during which time [Father]’s counsel and [Mother] were present,

the [c]ourt entered an Order dismissing the Petition for Protection

from Abuse on the basis of [Father] presenting insufficient

evidence to support the entry of a final Protection from Abuse

Order.[3] (Order, May 22, 2017, [P.J.A. on behalf of P.C.A. v.

[H.C.N.]], 2017-PF-0291.)

The parties litigated the Petition for Modification in their

custody case over the course of ten days of trial testimony.[4] The

[c]ourt received testimony from several experts, including Drs.

Veronique Valliere, Psy.D., Ronald J. Esteve, Ph.D., Anthony Pisa,

Ph.D., and James Margolis, Ph.D.[,] with respect to custody

evaluations and allegations that [Father] was engaging in parental

alienation against [Mother].

____________________________________________

3This order, which, upon review, was not entered until May 24, 2017,

maintained the suspension of Mother’s physical custody. Order, 5/24/17.

4 At various times throughout these hearings Mother and Father were

represented by counsel, and at other times they were pro se; Mother is an

attorney.

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On December 5, 2017, the [c]ourt entered an Order ruling

on [Mother]’s Petition for Modification, as well as several other

related petitions.[5] The [c]ourt granted the petition in part and

denied it in part. The parties were granted shared legal custody.

[Father] was granted primary physical custody, with periods of

visitation for [Mother] as described more fully in the [c]ourt’s

Order.[6]

[Father] filed a Notice of Appeal on December 28, 2017,[7]

but failed to file a concise statement of errors complained of on

appeal concurrent with his Notice of Appeal. The Superior Court

directed Appellant to file a Concise Statement, which [Father] did

on January 29, 2018.[8]

____________________________________________

5 As indicated above, this order was entered on December 6, 2017.

6 Pursuant to the court’s order, the parties were awarded shared legal custody

of Child. In addition, Father was awarded primary physical custody and

Mother partial physical custody each Thursday from after school or 4:00 p.m.

to Friday a.m. drop off at school and alternating weekends from Friday after

school until Monday morning, as well as a dinner visit each Tuesday from 5:00

p.m. until 8:30 p.m. The order additionally provided, among other things, a

holiday and vacation schedule. Order, 12/6/17, at 33-36.

7 Father filed the instant Notice of Appeal pro se. Counsel entered his

appearance on behalf of Father on April 11, 2018. Mother is not represented

on appeal. We note that Mother submitted a letter dated May 3, 2018, and

filed May 9, 2018, indicating her lack of intent to file a reply brief. See Letter,

5/9/18.

8 Mother requested this Court dismiss Father’s appeal for failure to file a

contemporaneous concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Application to Dismiss, 1/17/18.

In an order dated January 18, 2018, Father was ordered to file a Rule 1925(b)

statement by January 29, 2018. Father complied, filing a Rule 1925(b)

statement on January 29, 2018. As such, this Court denied Mother’s motion

to dismiss on February 2, 2018. See In re K.T.E.L., 983 A.2d 745, 748

(Pa.Super. 2009) (holding that the appellant’s failure to comply strictly with

Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver of her claims, as there was no

prejudice to any party); Cf. Mudge v. Mudge, 6 A.3d 1031 (Pa.Super. 2011)

and J.M.R. v. J.M., 1 A.3d 902 (Pa.Super. 2010) (failure to file a Rule 1925(b)

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...

Trial Court Opinion (“T.C.O.”), 2/23/18,9 at 1-5.

On appeal, Father raises the following issues for our review:

1. Was the trial court’s conclusion that Dr. Esteve did not have a

conflict of interest not supported by the record, causing the

assessment of Dr. Esteve’s credibility to be based on an

inaccurate fact?

2. Did the lower court err when it reversed itself with respect to

whether [Father] was entitled to the underlying data that Dr.

Esteve used in composing his forensic report regarding

[Mother]?

Father’s Brief at 4.10

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.

§§ 5321-5340, our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type

and our standard is abuse of discretion. We must accept findings

of the trial court that are supported by competent evidence of

record, as our role does not include making independent factual

determinations. In addition, with regard to issues of credibility

and weight of the evidence, we must defer to the presiding trial

judge who viewed and assessed the witnesses first-hand.

However, we are not bound by the trial court’s deductions or

inferences from its factual findings. Ultimately, the test is whether

the trial court’s conclusions are unreasonable as shown by the

evidence of record. We may reject the conclusions of the trial

____________________________________________

statement of errors complained of on appeal when ordered by the Superior

Court will result in a waiver of all issues on appeal).

9While dated and mailed February 22, 2018, the trial court’s order and opinion

were docketed February 23, 2018.

10We observe that Father states his issues somewhat differently than he did

in his Rule 1925(b) statement. Nevertheless, we find that Father has

preserved for appellate review his challenges to the trial court’s order.

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court only if they involve an error of law, or are unreasonable in

light of the sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted); see

also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015) appeal denied, 635

Pa. 754, 129 A.3d 521 (2016).

This Court consistently has held:

[t]he discretion that a trial court employs in custody matters

should be accorded the utmost respect, given the special nature

of the proceeding and the lasting impact the result will have on

the lives of the parties concerned. Indeed, the knowledge gained

by a trial court in observing witnesses in a custody proceeding

cannot adequately be imparted to an appellate court by a printed

record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson

v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)). In addition,

[a]lthough we are given a broad power of review, we are

constrained by an abuse of discretion standard when evaluating

the court’s order. An abuse of discretion is not merely an error of

judgment, but if the court’s judgment is manifestly unreasonable

as shown by the evidence of record, discretion is abused. An

abuse of discretion is also made out where it appears from a

review of the record that there is no evidence to support the

court’s findings or that there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations

omitted).

We first consider whether the December 6, 2017, order was properly

appealable as a final order.

“‘[S]ince we lack jurisdiction over an unappealable order it is

incumbent on us to determine, sua sponte when necessary,

whether the appeal is taken from an appealable order.’” Gunn v.

Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505,

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508 (Pa.Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796,

798 (Pa.Super. 2000)). It is well-settled that, “[a]n appeal lies

only from a final order, unless permitted by rule or statute.”

Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.Super. 2013).

Generally, a final order is one that disposes of all claims and all

parties. See Pa.R.A.P. 341(b).

K.W. v. S.L. & M.L. v. G.G., 157 A.3d 498, 501-02 (Pa.Super. 2017).

A custody order is final and appealable after the trial court has concluded

its hearings on the matter and the resultant order resolves the pending

custody claims between the parties. See G.B. v. M.M.B., T.B. & A.B., 670

A.2d 714 (Pa.Super. 1996).

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

denied, 573 Pa. 704, 827 A.2d 430 (2003) the trial court, as part of its custody

order, expressly indicated that it would retain jurisdiction and conduct a

review hearing approximately eight months later on May 2, 2002. After

discussing relevant case law, this Court held that “by expressly retaining

jurisdiction and scheduling a hearing for a date certain, the trial court in the

instant case apparently intended to keep the issues under consideration[.]”

Kassam, 811 A.2d at 1028. This Court previously described the distinction

between custody orders that anticipate further proceedings only upon the

application of a party and orders that schedule a future hearing for a date

certain as follows:

In Sawko v. Sawko, [625 A.2d 692 (Pa.Super. 1993)],

we touched upon the issue of finality in a situation which

presented a middle ground between [Parker v. MacDonald,

496 A.2d 1244 (Pa.Super. 1985)] and [Cady v. Weber, 464

A.2d 423 (Pa.Super. 1983),] on the one hand (where the

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order appealed from was entered after a full hearing and was

intended to constitute a determination of the ultimate issues

between the parties) and [Williams v. Thornton, 577 A.2d

215 (Pa.Super. 1990)] on the other (where the order

appealed from was entered before a full hearing and was

intended to determine the parties’ rights only during the

pendency of the litigation).

Sawko involved an appeal from an order entered in

response to a mother’s petition to modify an order entered

five weeks earlier which awarded primary custody to her

child’s father. The trial court conducted a hearing on the

petition to modify at which both parties were permitted to put

on as much evidence as they wished. At the conclusion of

the hearing, the court entered an order which denied the

petition to modify primary custody but increased the

mother’s partial custody rights and scheduled an additional

review hearing about four months in the future. This court

noted, without elaboration, that the order was interlocutory

and that mother’s appeal therefrom was premature and

subject to quashal. [Sawko,] 625 A.2d at 696.

The reasons for this conclusion are clear. Although the

court’s order was entered after a full hearing, it clearly was

not intended to constitute a complete resolution of the issues

pending between the parties. Unlike the order in Parker,

supra, or Cady, supra, the trial court’s order did not

completely resolve the issues raised by the parties unless and

until further proceedings were initiated by a party. Rather,

the Sawko court’s order, although declining to grant the

ultimate relief sought by the petitioner-mother, made an

adjustment in its previously ordered custody arrangement

and scheduled a further review of the matter. By scheduling

further review for a date certain rather than leaving it up to

the parties to seek such review, the trial court made it clear

that the ultimate issues between the parties remained under

consideration. The court’s order was merely intended, in light

of the brief time period between its initial custody order and

the petition for modification, to allow the court more time to

study the effect of the ordered arrangement upon the child

and to make a final determination at a later date as to

whether a modification of primary custody would be in the

child’s best interest.

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E.B. v. M.M.B., 670 A.2d 714, 719-20 (Pa.Super. 1996) (en banc).

Instantly, the order in question is a final order. While the trial court

anticipated and referenced future hearings related to a more recently filed

proposed relocation petition, the court clearly intended the order in question

to be a final resolution as to the filings at issue and the evidence presented in

support thereof. Unlike other instances, including during the pendency of the

relevant motions/petitions, the order was not indicated as an interim order.

Additionally, the order did not schedule further proceedings with regard to the

filings in issue. Rather, the court entered a forty-three page order which

exhaustively examined the seventeen custody factors set forth in 23 Pa.C.S.A.

§ 5328(a). Thus, we next consider Father’s issues on appeal which raise

challenges as to Ronald J. Esteve, Ph.D., who was qualified as an expert

witness in the field of forensic psychology with a specialty in family structure

interaction, N.T., 7/5/17, at 15, and appointed by the court to perform a

custody evaluation, Order, 7/13/17, at ¶9.

As Father’s issues involve pure questions of law, our standard of review

is de novo, and our scope of review is plenary. See Gilbert v. Synagro

Cent., LLC, 634 Pa. 651, 131 A.3d 1, 10 (2015); Harrell v. Pecynski, 11

A.3d 1000, 1003 (Pa.Super. 2011); In re Wilson, 879 A.2d 199, 214

(Pa.Super. 2005) (en banc) (citations omitted).

Pennsylvania Rule of Civil Procedure 1915.8 provides:

Rule 1915.8. Physical and Mental Examination of Persons.

(a) The court may order the child(ren) and/or any party to submit

to and fully participate in an evaluation by an appropriate expert

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or experts. The order, which shall be substantially in the form set

forth in Rule 1915.18, may be made upon the court’s own motion,

upon the motion of a party with reasonable notice to the person

to be examined, or by agreement of the parties. The order shall

specify the place, manner, conditions and scope of the

examination and the person or persons by whom it shall be made

and to whom distributed. In entering an order directing an

evaluation pursuant to this rule, the court shall consider all

appropriate factors including the following, if applicable:

(1) the allocation of the costs, including insurance

coverage, if any, attendant to the undertaking of the

evaluation and preparation of the resultant report and

court testimony of any appointed expert;

(2) the execution of appropriate authorizations

and/or consents to facilitate the examination;

(3) any deadlines imposed regarding the completion

of the examination and payment of costs;

(4) the production of any report and of underlying

data to counsel and/or any unrepresented party upon

the completion of the examination; and

(5) any additional safeguards that are deemed

appropriate as a result of the alleged presence of

domestic violence and/or child abuse.

(b) Unless otherwise directed by the court, the expert shall

deliver to the court, to the attorneys of record for the parties, to

any unrepresented party, and to the guardian ad litem and/or

counsel for the child, if any, copies of any reports arising from the

evaluation setting out the findings, results of all tests made,

diagnosis and conclusions. No reports shall be filed of record or

considered evidence unless and until admitted by the court. Any

report which is prepared at the request of a party, with or without

a court order, and which a party intends to introduce at trial, must

be delivered to the court and the other party at least thirty days

before trial. If the report or any information from the evaluator is

provided to the court, the evaluator shall be subject to cross-

examination by all counsel and any unrepresented party without

regard to who obtains or pays for the evaluation.

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(c) If a party refuses to obey an order of court made under

subdivision (a) of this rule, the court may make an order refusing

to allow the disobedient party to support or oppose designated

claims or defenses, prohibiting the party from introducing in

evidence designated documents, things or testimony, prohibiting

the party from introducing evidence of physical or mental

condition, or making such other order as is just. The willful failure

or refusal of a party to comply with an order entered pursuant to

this rule may also give rise to a finding of contempt and the

imposition of such sanctions as may be deemed appropriate by

the court, including, but not limited to, an adverse inference

against the non-complying party.

(d) A petition for contempt alleging failure to comply with an order

entered pursuant to subdivision (a) of this rule shall be treated in

an expedited manner.

Pa.R.C.P. 1915.8.

Initially, Father asserts the trial court erred in determining that Dr.

Esteve did not have a conflict of interest. Father’s Brief at 11-15. Father

argues that Dr. Esteve had a conflict as he served in a “dual role” as Mother’s

psychological evaluator as well as a neutral custody evaluator appointed by

the court.11 Id. at 12. Father states:

____________________________________________

11 We observe that, although Father’s argument appears to be based on the

September 6, 2017, testimony of Dr. Anthony Pisa who purported to opine

that Dr. Esteve faced an ethical conflict, the Notes of Testimony from

September 6, 2017, are not included as part of the certified record. While

requested by both parties, it does not appear from the docket that these notes

were filed and is unclear from the record if all ordered fees were paid.

Regardless, as there are suggestions that they were completed, this Court,

through its Prothonotary, unsuccessfully attempted to obtain them from

Lehigh County. Although we do not penalize Father, we caution that it is

Father’s duty as the appellant to request and make the payment for any

transcript necessary, as well as to make sure that the complete certified record

is transferred from the lower court. See Pa.R.A.P. 1911(a); Pa.R.A.P. 1931;

see also Commonwealth v. Preston, 904 A.2d 1, 7-8 (Pa.Super. 2006) (en

banc).

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In particular, Dr. Esteve functioned in a dual role, and as

such had a clear conflict of interest. On the one hand, he was

[Mother]’s paid psychological evaluator; on the other hand he

allowed himself to be appointed as the court’s “neutral” custody

evaluator. The lower court concluded that Dr. Esteve did not have

a conflict of interest because he thought he was acting as a court

appointed psychological evaluator of [Mother], and thus, he

claimed his duties were to the court and not one of the parties.

The lower court’s acceptance of this conclusion is not supported

by the facts.

Id. As such, Father argues that this impacts the weight afforded Dr. Esteve’s

testimony. Id. at 14.

Notably, when the issue of a conflict was raised during the September

13, 2017, hearing, the trial court stated, “As I said, I believe that all the

allegations with regard to ethical conflicts . . . raised about Dr. Esteve’s

performance go to the weight that I would give Dr. Esteve’s testimony in this

proceeding.” N.T., 9/13/17, at 32. Likewise, in a footnote to the December

6, 2017 order, the court noted:

Dr. Esteve testified September 13, 2017 that he viewed the court

order from July 12, 2017 as requiring him to perform the custody

evaluation of the parties and child as the court-appointed expert,

and not as [Mother]’s witness. Dr. Esteve denied he had an ethical

conflict in continuing to perform the custody evaluation after

performing the psychological evaluation of [Mother]. Esteve

stated while he would have preferred the [c]ourt’s order to be

worded differently, he understood the [c]ourt’s interest in

attempting to expedite the custody evaluation.

. . . The [c]ourt had the discretion to determine whatever weight

and credibility, if any, was to be afforded to Dr. Esteve’s

testimony, in light of his already performing the psychological

evaluation of [Mother].

Order, 12/6/17, at 42-43 n.6.

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Further, in concluding that Dr. Esteve did not have a conflict of interest

in its Rule 1925(a) Opinion, the trial court reasoned:

In his next issue on appeal, [Father] asserts the [c]ourt

erred by appointing Dr. Esteve to conduct a custody evaluation.

On June 23, 2017, the [c]ourt directed Dr. Esteve to perform a

custody evaluation pursuant to Pa.R.C.P. 1915.8. [Father]

strenuously objected to Dr. Esteve performing the evaluation. He

asserted Dr. Esteve had an ethical conflict on the grounds that he

had performed a psychological evaluation of [Mother] pursuant to

a prior Order filed on May 9, 2017. [Father] instead argued that

the custody evaluation should be conducted by Dr. Veronique

Valliere, the same person [Father] sought to retain to perform a

psychological evaluation on him.

On July 5, 2017, Dr. Esteve testified under questioning by

[Mother] about the initial directive from the [c]ourt that he

complete a custody evaluation. He indicated:

[T]he [c]ourt order was, in part, asking me to do a

custody evaluation or at least offer custody

recommendations. And that goes beyond the scope

of what I was able to do. I had the opportunity to

interview [Mother] clinically as well as administer

objective psychological testing, and I had the

opportunity to interview [P.C.A.] That falls far short

of the opportunity to do a custody evaluation. If it

was a custody evaluation, I would have had the

opportunity to meet with your son in your presence.

I would have also met with him in his father’s

presence. And, of course, I would have done virtually

the same thing with the father that I did with you. So,

I was not able to do that. What I was able to do, and

I made it very clear to the [c]ourt, the limited scope

of what I was able to do is offer an opinion about

[Mother] and offer an opinion about your son to the

extent I could with the information that was available

to me.

(N.T. July 5, 2017, at 15-16.)

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After that hearing date, Dr. Esteve was directed to perform

a custody evaluation pursuant to Pa.R.C.P. 1915.8.[12] On

September 6, 2017, the parties were scheduled for a pre-trial

conference to determine the date for the continuation of their

custody trial. [Father] appeared with Dr. Anthony Pisa, Ph.D. at

the pretrial conference. He elicited testimony from Dr. Pisa that[,]

based on specialty guidelines promulgated by the American

Psychological Association, Dr. Esteve should have considered

himself ethically compromised from performing the custody

evaluation at the [c]ourt’s direction after he performed a

psychological evaluation of [Mother]. Dr. Pisa conceded that he

only testified based on [Father]’s version of events, and that he

had not spoken to Dr. Esteve, reviewed Dr. Esteve’s report, or

read Dr. Esteve’s testimony from July 5, 2017. Dr. Pisa further

indicated he was unwilling to perform the child custody evaluation

himself because it would be detrimental to have too many

professionals examining the minor child.

On September 13, 2017, Dr. Esteve returned to court and

testified that he believed he was performing a custody evaluation

at the behest of the [c]ourt rather than as an expert witness for

either party. (N.T. September 13, 2017, at 5-6.) Before receiving

any testimony from Dr. Esteve, the [c]ourt inquired about the

testimony from Dr. Pisa concerning a potential ethical conflict he

might have. The [c]ourt asked whether Dr. Esteve believed he

“should have deemed [himself] ethically precluded from

proceeding with the custody evaluation.” ([Id.] at 9.) Dr. Esteve

responded:

A. I think it’s incorrect. As I stated, my initial contact

was with you, Your Honor. And I understood from the

beginning that this was a custody dispute, and that

was the question, in essence, that you and the [c]ourt

____________________________________________

12 By way of clarification, pursuant to the order dated May 8, 2017, and

entered May 10, 2017, the parties were free to engage a psychologist to

evaluate the child and have the psychologist retained perform an evaluation

of the party. The order dated June 20, 2017, and entered June 23, 2017,

which modified the prior order dated May 19, 2017, requiring psychological

evaluation of the parties, including a custody evaluation for which the child

shall be made available, additionally allowed evaluation of the relationship of

the party and the child and evaluation of the child. Finally, pursuant to order

dated July 11, 2017, and entered July 13, 2017, Dr. Esteve was specifically

appointed to conduct a custody evaluation.

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was [sic] asking [of] me. And as I said a moment ago,

I -- I don’t know what your reasoning was, but I

assume that you were trying to be as parsimonious as

possible in the way that you created that first Court

Order, and so, you limited the scope of what I could

do. Based on, perhaps, my recommendations,

because I know I made that recommendation in my

report as well as here in court, I viewed the second

Court Order as an addendum to that first Court Order

and completed what I thought I was being asked to

do in the first place. And I understood from the

beginning that this was all through contact from the

[c]ourt. It wasn’t contact from either of the parties.

I don’t work for either of them.

([Id.] at 9-10.)

The [c]ourt also asked whether Dr. Esteve took any steps

“to see if there was any other conflict that may arise from [his]

performance of the custody evaluation in addition to the

psychological assessment or evaluation of [Mother].” ([Id.] at

11.) Dr. Esteve testified:

A. The short answer is -- is no, but let me explain.

First of all, I didn’t know that was a criticism that was

extended. Everything in retrospect, I suppose, is

easy. Listening to some of the criticisms that I’ve

heard, as well as some of the things that [Father] has

indicated in some pleadings that I saw, it might have

been smart for me to do that. Of course I couldn’t

know that at the time, and I explained to [Father] in

my very first phone contact with him exactly what I

was doing, and he indicated his understanding. As a

result, it didn’t seem necessary.

Q. His understanding of what?

A. Of exactly what my role was.

Q. You explained that to [Father]?

A. Absolutely. In my first phone conversation with

him, I spoke at length with him, as well as I spoke

with him about what my preferences were.

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([Id.] at 11-12.)

As the record reflects, the [c]ourt addressed [Father]’s

concerns about any ethical conflicts with Dr. Esteve before

receiving testimony from him on the custody evaluation he

performed in the within matter. The custody evaluation conducted

pursuant to the July 11, 2017 Order was different from the

psychological evaluation the [c]ourt ordered each party to obtain

in the May 19, 2017 Order. Dr. Esteve testified he operated under

the belief that he was acting on behalf of the [c]ourt, not as an

expert testifying for or against either of the parties. His

evaluations were conducted in furtherance of that process, not to

provide testimony designed to advance either party’s position in

litigation. Dr. Esteve’s purpose was to independently conduct a

custody evaluation, which necessarily entailed working with the

parties in order to provide a report to the [c]ourt from a

psychological perspective for the [c]ourt to consider in

establishing a custody arrangement. Dr. Esteve credibly testified

that there was not an ethical violation, and the testimony from Dr.

Pisa was not persuasive to the [c]ourt. . . .

T.C.O. at 12-15 (footnotes omitted).

The court further commented as to Dr. Esteve as follows:

The [c]ourt also fully considered Dr. Pisa’s criticism of Dr.

Esteve’s performance of the custody evaluation, but noted that

Dr. Pisa’s opinion was based solely what [Father] told him. Pisa

did not speak with Esteve, did not review Esteve’s report, or

review Esteve’s testimony. Pisa even acknowledged having an

additional psychologist perform a custody evaluation as [Father]

implies was needed would be ill-advised based on how many

evaluations the child had already undergone. The [c]ourt

concluded it was more efficient and effective for Dr. Esteve to

perform the custody evaluation since he had already been

involved in the case to perform a psychological evaluation of

[Mother]. Additionally, the [c]ourt requested and received

testimony from Dr. Veronique Valliere whom [Father] wanted to

conduct the custody evaluation, regarding her abuse assessment

of the parties and the child in which Dr. Valliere concluded

[Mother] had not abused the child and [Father] had not alienated

the child from his mother.

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In this case, the [c]ourt explored any ethical conflicts Dr.

Esteve may have had prior to receiving testimony about his

report, [Father] was permitted to cross-examine Dr. Esteve, and

did so extensively. (N.T. September 13, 2017, at 95-196.) When

Dr. Esteve returned to continue his testimony on October 17,

2017, [Father] was represented by Nancy Schneider, Esq., who

called Dr. Esteve on Direct as of Cross. Attorney Schneider also

conducted an extensive cross-examination of Dr. Esteve on that

date. (N.T. October 17, 2017, at 7-78.) Accordingly, the [c]ourt

properly considered Dr. Esteve’s testimony, subject to [Father]’s

cross-examination. . . .

Id. at 15-17.

Upon review, we agree. Dr. Esteve expressed multiple times that his

initial contact with regard to the instant matter was with the trial court and

his belief was always that he was working on behalf of the court. N.T.,

9/13/17, at 5-6, 9-10, 12, 33, 96-97, 100-01, 104-05; see also N.T.,

10/17/17, at 55-56. Dr. Esteve stated, “It was an extension [of the] [c]ourt.

It’s the [c]ourt that contacted me. . . . It was the [c]ourt who indicated to me

that I would be hearing from the [c]ourt, and, of course, it was the Court

Order that I received.” N.T., 9/13/17, at 6. He further indicated, “. . . As I

stated, my initial contact was with you[,] Your Honor. . . . And I understood

from the beginning that this was all through contact from the [c]ourt. It

wasn’t contact from either of the parties. I don’t work for either of them.”13

Id. at 10. As such, Dr. Esteve viewed himself as “an extension [of the] court,”

id. at 6, and believed that he was not “ethically precluded from proceeding

with the custody evaluation,” id. at 9-10.

____________________________________________

13Upon review, it appears that Dr. Esteve was contacted by the court and

participated by telephone in a proceeding on May 4, 2017.

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While he admitted that it would be a conflict to conduct a custody

evaluation if Mother first had contacted him and he had performed a

psychological assessment, Dr. Esteve reiterated that was not the case

instantly. Id. at 32-33. Specifically, the court inquired “. . . if, in fact, it was

[Mother] who initially contacted you to perform a psychological evaluation of

her within the scope of this custody case, do you believe that a subsequent

appointment of you to perform a custody evaluation of the parties with the

child posed [an] ethical conflict for you?” Id. at 32-33. Dr. Esteve responded,

“Yes. Of course[,] that would have been [an] ethical conflict. Then she is the

one who would have hired me, and then I would have been her expert. At the

risk of redundancy, I’ll say it again: That is not how the contact was initiated.”

Id. at 33.

Regardless of whether he first conducted a psychological assessment of

Mother, the trial court believed the testimony of Dr. Esteve, which remained

consistent throughout multiple hearings, and found it credible that his initial

contact was with the court and he always perceived himself as working on

behalf of and performing an evaluation on behalf of the court. As the trial

court is entitled to its determinations as to credibility and weight, we find that

the court did not abuse its discretion.

Father next argues the trial court erred in denying production of and/or

access to the underlying raw data utilized by Dr. Esteve. Father’s Brief at 15-

16. In noting that the court initially ordered the disclosure of such information

and then reversed its ruling, Father maintains that the trial court abused its

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discretion. Id. Father posits that the ethical concerns raised by Dr. Esteve

regarding the release of the raw data, as well as the confidentiality protections

examined by the court, are misplaced. Id. at 16-17. Further, Father asserts

he was prejudiced in his ability to cross-examine Dr. Esteve. Id. at 19-20.

As to its ultimate denial of the release of the underlying raw data, the

trial court stated:

On August 22, 2017, [Father] filed a Motion for Discovery of

Expert’s File in which he endeavored to require Dr. Esteve to turn

over his file on the parties’ matter, including all notes and

tests/test results for [Mother]. He filed a substantially similar

motion on the same day requesting access to the files for Dr. Jack

Gerhard. On May 19, 2017, [Mother] testified she engaged in

several counseling sessions with Dr. Gerhard for anger

management. [Father] asserted that he required access to both

files “to determine whether [their reports], recommendations and

conclusions are supported by the underlying data, notes,

observations and information gathered.” (Motion for Discovery of

Expert’s File, August 22, 2017, at 2-3.)

On September 11, 2017, the [c]ourt entered an Order with

a Memorandum Opinion within which it observed that Pa.R.C.P.

1915.8 entitles the parties to a copy of “any report arising from

the [court-ordered] evaluation setting out the findings, results of

all tests made, diagnosis and conclusions.” Pa.R.C.P. 1915.8(b).

Consequently, the [c]ourt granted [Father]’s request in part. The

[c]ourt required that Dr. Esteve “provide copies of his report

prepared as a result of a custody evaluation, along with all tests,

test data, test results, collateral information, psychological

assessments, and psychological reports he utilized or relied upon

in the preparation of his report, to the parties.” (Order,

September 11, 2017, at 1.) The [c]ourt denied [Father]’s request

for “copies of any and all interviews, background information and

notes, along with professional reference guidelines.” ([Id.]) With

respect to Dr. Gerhard, the [c]ourt directed Dr. Gerhard to

“provide copies of any documents in his possession, custody or

control related to the dates, times, and length of sessions of anger

management counseling provided by Dr. Gerhard to the

Defendant.” ([Id.])

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After the [c]ourt entered the September 11, 2017 Order,

[c]ourt staff e-mailed a copy of it to the parties as well as Dr.

Esteve. Roughly three hours later, Dr. Esteve responded to

chambers and copied the parties. He indicated he was unable to

provide raw data directly to the parties because it is an ethical

violation and the files are partially copyrighted.

During the hearing conducted on September 13, 2017, Dr.

Esteve testified, consistent with his correspondence with the

[c]ourt and the parties, that he was unable to release the “raw

data” Appellant had requested because doing so would violate the

professional ethical guidelines prohibiting psychologists from

releasing that information to individuals who are not

psychologists. Based upon that testimony, the [c]ourt advised

[Father], “If you identify a person who’s going to offer an expert

opinion regarding Dr Esteve’s conclusions, [Father], I’ll hear you

out in another motion as to the release of those documents to that

expert.” (N.T. September 13, 2017 at 121.)

[Mother] filed an Emergency Motion for Dr. Margolis’ Case

File on September 28, 2017, which requested substantially similar

raw data from [Father]’s identified expert as the data [Father]

sought from Dr. Esteve. On October 3, 2017, [Father] filed a

Motion to Compel, seeking the same data from Dr. Esteve to

provide it to Dr. Anthony Pisa. In [Father]’s Motion to Compel, he

argued he would be retaining Nancy Schneider, Esq., JD, Ph.D.,

whose “appearance as Father’s attorney will make Dr. Esteve’s

argument at the September 13, 2017 hearing moot. As a

practicing mental health professional of 38 years, Dr. Schneider is

able to receive and review Dr. Esteve’s file.” (Plaintiffs Motion to

Compel Production of Documents in Accordance with the Order

Filed September 11, 2017, at 3.)

On October 10, 2017, the [c]ourt deferred consideration of

the parties’ motions until the time of trial. However, the [c]ourt

directed that both Dr. Esteve and Dr. Margolis bring their

documents with them to trial on October 16-18, 2017, the

previously-scheduled dates for resumption of the parties’ custody

trial. On October 17, 2017, Dr. Esteve testified once again about

the “raw data,” and he explained to Attorney Schneider:

[A]s I’m sure you know, I have an obligation to make

sure that no damaging information is released to

either party. Of course, once I give up data, I have

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no idea how that data will be used. Neither [Mother]

nor [Father] are qualified to review a psychological

data, as I’m sure you also know.

And how I made it clear is that I could make the data

available to another professional, and that is another

clinical psychologist, if they wanted to offer an

individual. I do this to protect the integrity of the data

and also to protect the, both parties. They’re already

a very adversarial relationship, and I certainly

wouldn’t want to add to that by a misunderstanding

or misrepresentation of data.

(N.T. October 17 2017, at 13-14.)

The [c]ourt did not direct Dr. Esteve to turn over his raw

data to the parties or Attorney Schneider. In his appeal, [Father]

now asserts the [c]ourt erred in that decision.

...

It is also noteworthy that the [c]ourt carefully reviewed

Pennsylvania Rule of Civil Procedure 1915.8 in determining what

materials could be released to the parties. (See Order, October

10, 2017, at 3 n.i.) []

For these reasons, the [c]ourt did not abuse its discretion or

commit an error of law in precluding the release of any expert’s

raw data to the parties. The [c]ourt’s holding was consistent with

[M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012)] and the applicable

statutory law governing confidentiality. . . . No relief is due on

appeal.

T.C.O. at 23-28.

As is stated in the footnote to the court’s order dated October 10, 2017,

and entered October 11, 2017:

. . .Under Pa.R.C.P. 1915.8(a), “[i]n entering an order directing

an evaluation pursuant to this rule, the court shall consider all

appropriate factors including the following, if applicable:. . .(4) the

production of any report and of underlying data to counsel and/or

any unrepresented party upon completion of the examination;”

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(emphasis added) However, under subsection (b) of the same

rule, it states, “Unless otherwise directed by the court, the expert

shall deliver to the court, to the attorneys of record for the parties,

and to any unrepresented party, and to the guardian ad litem for

the child, if any copies of any reports arising from the evaluation

setting out the findings, results of all tests made, diagnosis, and

conclusions.” The language of the rule does not require the prior

disclosure of the tests, test data, collateral information, scoring

sheets, questionnaires, checklists, or social and/or other

documented history requested by the parties. Although a court

may consider the “production of. . .underlying data to counsel

and/or any unrepresented party” as a factor in ordering an

evaluation under Pa.R.C.P. 1915.8(a), that very same rule does

not require the release of the “underlying data” in advance to a

party for a custody proceeding. . . .

Order, 10/10/17, at 3-4 n.i. (emphasis in original).

The court reiterated at the hearing on October 17, 2017, that, pursuant

to Pennsylvania Rule of Civil Procedure 1915.8, “there’s no requirement to

disclose the raw data. There’s a requirement to release the report.” N.T.,

10/17/17, at 19. “. . . My legal interpretation of the rule, regardless of what

the ethical concerns are, . . . is that the rule itself doesn’t require the

disclosure of the raw data.” Id. at 20.

Again, we agree. Pennsylvania Rule of Civil Procedure 1915.8(b)

provides, in part: “Unless otherwise directed by the court, the expert shall

deliver to the court, to the attorneys of record for the parties, to any

unrepresented party, and to the guardian ad litem and/or counsel for the child,

if any, copies of any reports arising from the evaluation setting out the

findings, results of all tests made, diagnosis and conclusions. . . .”

Pa.R.C.P. 1915.8(b) (emphasis added). As recognized by the trial court, the

rule does not contemplate the release of underlying raw data, but only the

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report. Moreover, the trial court permitted counsel to review requested

elements of raw data from Dr. Esteve’s file when requested at the hearing on

October 17, 2017, and to examine Dr. Esteve regarding same. See N.T.,

10/17/17, at 32-43. Hence, regardless of any additional ethical concerns as

expressed by Dr. Esteve, the trial court did not err in its denial of the disclosure

of Dr. Esteve’s raw data.14 For the foregoing reasons, we affirm the order of

the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/18

____________________________________________

14 While the court additionally references and examines confidentiality

protections and M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012), we find this

not applicable, as Dr. Esteve was not in a treatment situation with regard to

this matter, but rather served as an evaluator and expert.

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