N.D.J. v. D.E.J.

J. S17039/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

N.D.J. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

D.E.J., : No. 1609 MDA 2019

:

Appellant :

Appeal from the Order Entered September 5, 2019,

in the Court of Common Pleas of York County

Civil Division at No. 2015-FC-001144-03

N.D.J., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. : No. 1629 MDA 2019

:

D.E.J. :

Appeal from the Order Entered September 5, 2019,

in the Court of Common Pleas of York County

Civil Division at No. 2015-FC-01144-03

BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 11, 2020

In these consolidated cross-appeals, D.E.J. (“Mother”), pro se, and

N.D.J. (“Father”) challenge the September 5, 2019 final custody order

(“Custody Order”) entered in the Court of Common Pleas of York County that

awarded shared legal custody of A.D.J., R.L.J., and L.N.J. (collectively,

“Children”) to Mother and Father and primary physical custody of the Children

J. S17039/20

to Father; that found Mother in contempt of the trial court’s July 24, 2018

custody order and imposed sanctions; and that denied Father’s request for

relocation. We affirm.

The record reflects that Mother and Father married in January 2001.

A.D.J. was born in February 2010; R.L.J. was born in January 2012; and L.N.J.

was born in May 2014. Mother and Father separated on June 18, 2015. On

June 23, 2015, Father initiated the underlying custody action when he filed an

action in divorce and custody against Mother.

On September 17, 2015, the trial court entered a consent custody order

awarding shared legal and physical custody of the Children to Mother and

Father.1 On November 29, 2017, Father filed a petition for modification and

contempt. Following a hearing, the trial court entered an order of custody on

July 24, 2018 that awarded shared legal custody of the Children to Mother and

Father and primary physical custody of the Children to Father with partial

physical custody rights awarded to Mother. The order also found Mother in

contempt of the September 17, 2015 consent custody order for “willfully

disparaging Father” and imposed sanctions. (Order of court, 7/24/18 at 15.)

Mother filed a timely notice of appeal to this court, which was docketed at

No. 1394 MDA 2018. On October 5, 2018, this court dismissed Mother’s

appeal for failure to file a docketing statement as required by Pa.R.A.P. 3517.

1 We note that the order is dated September 16, 2015, but was entered on

the docket on September 17, 2015.

-2-

J. S17039/20

On January 17, 2019, Father filed a petition for contempt and

modification, which included a request to relocate. Because the parties were

unable to reach an agreement to resolve the issues raised in Father’s petition,

the trial court entered an interim custody order, pending trial. (Order of court,

2/19/19.2) In the order, the trial court directed that its July 24, 2018 custody

order that awarded shared legal custody of the Children to Mother and Father

and primary physical custody of the Children to Father, subject to Mother’s

partial physical custody rights, remain in effect with certain modifications.

(Id. at 3.) The modifications included prohibiting Mother from being present

at, or transporting the Children to, the Children’s counseling sessions, unless

Mother’s attendance was specifically requested or authorized by the Children’s

therapist, and requiring Mother to sign a release for Mother’s counselor to

speak with the Children’s therapist. (Id.) On February 28, 2019, Father filed

a petition for suspension of Mother’s custodial rights wherein he alleged

Mother’s various violations of the trial court’s July 24, 2018 custody order.

The trial court scheduled a hearing on the petition for April 5, 2019.

On March 18, 2019,3 the trial court entered an order scheduling the

custody trial to begin on June 20, 2019. On April 3, 2019, the parties filed a

praecipe evidencing their agreement to cancel the hearing on Father’s petition

2We note that the order is dated February 15, 2019, but was entered on the

docket on February 19, 2019.

3The order is dated March 15, 2019, but was entered on the docket on

March 18, 2019.

-3-

J. S17039/20

for suspension of Mother’s custodial rights scheduled for April 5, 2019, and

resolve the issue at the custody trial. (Praecipe, 4/3/19.) On April 5, 2019,4

the trial court entered an order directing that all pending issues would be

remanded for determination at the custody trial.

On May 7, 2019, Mother filed an application for a continuance of the

custody trial because her experts, Deb Salem and Dr. Julie Medlin,5 would be

unable to “finish their reports in time, providing good cause for up to 60 days.”

(Mother’s application for continuance, 5/7/19 at 1, ¶ 3.) Following a status

conference, the trial court granted Mother’s request for a continuance and

rescheduled the custody trial to begin on July 15, 2019, and continue to

July 16, 2019. (Order of court, 5/23/19 at 2.6) The trial court also set aside

the morning of August 2, 2019, to “afford [Mother] an opportunity to timely

secure her expert reports and exchange them and to present testimony from

Miss Salem on that date.” (Id.)

When trial commenced on July 15, 2019, Father presented an oral

motion in limine wherein he objected to the admission into evidence of

Ms. Salem’s report, as well as her testimony, because Mother failed to timely

4We note that the order is dated April 4, 2019, but was entered on the docket

on April 5, 2019.

5 Mother engaged Ms. Salem, a counselor, to prepare a custody evaluation.

(Mother’s brief at 7.) Mother engaged Dr. Medlin, a psychologist, to conduct

psychological testing. (Id.)

6We note that the order of court is dated May 16, 2019, but was filed on

May 23, 2019.

-4-

J. S17039/20

submit the report to Father. (Notes of testimony, 7/15/19 at 4-5.) The record

reflects that following the trial court’s May 23, 2019 grant of Mother’s request

for a continuance of trial, Father agreed to extend the due date of the delivery

of Ms. Salem’s report to July 2, 2019. (Id. at 4.) Thereafter, Father again

agreed to extend the deadline to July 8, 2019. (Id. at 5.) Mother conceded

that she did not submit the report until July 10, 2019, but claimed that her

untimeliness did not prejudice Father; rather, she claimed that Father

objected only because he did not like the conclusions contained in Ms. Salem’s

report. (Id. at 6.) The trial court pointed out that the report was due in June7

and that Father’s counsel twice extended the deadline as a courtesy to Mother,

but Mother still delivered the report 48 hours late. (Id.) As such, the trial

court precluded Ms. Salem’s report and testimony because Mother violated

Pa.R.Civ.P. 1915.8, as well as the trial court’s scheduling order. (Id. at 13.)

The trial court heard evidence on July 15 and 16, 2019. Trial was then

recessed until August 2, 2019, at which time the trial court would hear expert

evidence. On July 16, 2019, Mother filed another application for continuance

7 Pa.R.Civ.P. 1915.8 requires that a party that intends to introduce an expert

report regarding a physical and/or mental examination in a custody case to

deliver the report to the trial court and the opposing party at least 30 days

before trial. Here, trial was scheduled to commence on July 15, 2019. As

such, but for Father’s grant of two extensions, Ms. Salem’s report was due on

June 17, 2019. We further note that the 30th day prior to the start of trial

was June 15, 2019, which fell on a Saturday. Whenever the last day of any

period of time referred to in any statute falls on a Saturday, Sunday, or legal

holiday, such day is omitted from the time computation. See 1 Pa.C.S.A.

§ 1908.

-5-

J. S17039/20

wherein she stated that “Dr. Medlin is not available to testify on August 2,

2019 and her testimony is necessary.” (Mother’s application for continuance,

7/16/19 at 1, ¶ 3.) By order entered July 18, 2019, the trial court denied

Mother’s request for continuance, noting Father’s opposition. (Order of court,

7/18/19.8) On July 23, 2019, Mother filed a motion to request an interlocutory

appeal to this court and an application for supersedeas pending appeal to

this court. The motions court denied the motion as premature because trial

was not complete. (Order of court, 8/1/19.)

When trial resumed on August 2, 2019, Mother renewed her request for

an interlocutory appeal. (Notes of testimony, 8/2/19 at 4.) Mother also

informed the trial court that Dr. Medlin would not be available to testify and

again requested a continuance. (Id. at 10-11.) The trial court denied both

requests. (Id. at 12-14.)

Following entry of the Custody Order, Mother filed a timely notice of

appeal and a concise statement of errors complained of on appeal pursuant to

Rule 1925(a)(2)(i). Father then filed a timely notice of cross-appeal, together

with a Rule 1925(a)(2)(i) statement, which was docketed at No. 1629 MDA

2019. The trial court filed a Rule 1925(a)(2)(ii) opinion. By order entered on

October 24, 2019, this court sua sponte consolidated Mother’s appeal and

Father’s cross-appeal. (Order of court, 10/24/19.)

8 We note that the order of court is dated July 17, 2019, but was entered on

the docket on July 18, 2019.

-6-

J. S17039/20

In her appeal of the Custody Order, Mother raises the following issues:

1. Did the trial court commit an error of law or

abuse of discretion when applying Pa. R.C[iv].P.

1915.8(b) and Pa. R.C[iv].P. 1915.4, refusing to

allow Deb Salem, MHS, CAACD, LPC, to testify

as an expert?

2. Did the trial court commit an error of law or an

abuse of discretion when interpreting and

applying Pa. R.C[iv].P. 216 and Pa. R.C[iv].P.

1915.4, refusing to allow a continuance to

procure the testimony of Dr. Julie Medlin?

3. Did the trial court abuse her discretion when

appointing Father as sole legal custodian for the

purpose of enrolling the [C]hildren with a new

counseling practice, though Father is the parent

who has been unwilling to work toward

compliance with this requirement?

4. Did the trial court abuse her discretion in failing

to place adequate safeguards on the [C]hildren

when exposed to a child known to have engaged

in prior sexual acts with the [C]hildren?

5. Did the trial court abuse her discretion in

ordering Mother’s partial physical custody to be

subject to “immediate termination” if Mother

discusses the children’s prior sexual trauma

with her [C]hildren or any topic with “sexual

themes” where the [C]hildren may hear?

6. Did the trial court abuse her discretion in

ordering both a release to Father of Mother’s

mental health records and a specific

psychological treatment for Mother?

7. Did the trial court abuse her discretion in finding

Mother in contempt of court and ordering her to

pay a portion of Father’s attorney fees?

8. Did the trial court commit an error of law or

abuse her discretion in ordering automatic

-7-

J. S17039/20

restrictions on Mother’s visitation as an

additional punishment if Mother does not timely

comply with the consequences ordered on her

for being found in contempt of court, namely

enrollment in and completion of a specific

training program?

9. Did the trial court abuse her discretion in her

analysis of the child’s best interest factors and

the ultimate conclusion appointing Father as

primary custodian of the [C]hildren, subject to

Mother’s partial custody?

Mother’s brief at 3.

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

§§ 5321-5340,

[w]e review the trial court’s custody order for an

abuse of discretion. We defer to the trial court’s

factual findings that are supported by the record and

its credibility determinations. However, we are not

bound by the trial court’s deductions or inferences,

nor are we constrained to adopt a finding that cannot

be sustained with competent evidence. In sum, this

Court will accept the trial court’s conclusion unless it

is tantamount to legal error or unreasonable in light

of the factual findings.

The primary concern in any custody case is the best

interests of the child. The best-interests standard,

decided on a case-by-case basis, considers all factors

which legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.

M.G. v. L.D., 155 A.3d 1083, 1091 (Pa.Super. 2017), appeal denied, 169

A.3d 522 (Pa. 2017) (internal citations and quotation marks omitted).

In her first and second issues, Mother claims that the trial court

misapplied certain Pennsylvania Rules of Civil Procedure.

-8-

J. S17039/20

“The correctness of [a] trial court’s application of a Rule of Civil

Procedure raises a pure question of law. As with all questions of law, our

standard of review is de novo and our scope of review is plenary.” Harrell v.

Pecynski, 11 A.3d 1000, 1003 (Pa.Super. 2011) (internal citations omitted).

With respect to Ms. Salem, Mother claims that the trial court misapplied

Rules 1915.8(b) and 1915.4 when it precluded her testimony. With respect

to Dr. Medlin, Mother claims that the trial court misapplied Rule 216, as well

as Rule 1915.4. Mother does not explain why she contends that the trial court

misapplied Rule 216. Rather, Mother states that “the arguments of these two

issues [are] the same” and she “will not repeat them.” (Mother’s brief at 15.)

Because Mother wholly fails to set forth an argument regarding her claim of

misapplication of Rule 216, Mother waives that aspect of her second issue.

See Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923,

932 n.1 (Pa.Super. 2013) (reiterating that failure to set forth legal argument

results in waiver).

Rule 1915.8 sets forth the procedural rules regarding physical and

mental examinations in custody actions. Rule 1915.8(b) requires that “[a]ny

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.”

Pa.R.Civ.P. 1915.8(b) (emphasis added). Rule 1915.4 sets forth the

-9-

J. S17039/20

procedural rules regarding the prompt disposition of custody cases.

Rule 1915.4(b) provides, in pertinent part:

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

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 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

court shall dismiss the matter unless the moving

party has been granted an extension for good

cause shown, which extension shall not exceed

60 days beyond the 180 day limit.

Pa.R.Civ.P. 1915.4(b); see Harrell, 11 A.3d at 1005 (Pa.Super. 2011)

(affirming order dismissing custody action based on Rule 1915.4, which

requires dismissal of action if trial not scheduled within 180 days of filing of

pleading or if moving party has not been granted extension for good cause

shown); see also Dietrich v. Dietrich, 923 A.2d 461 (Pa.Super. 2007)

(vacating custody order where father did not request trial within 180-day

period and no extension of time was granted).

Here, Mother contends that because trial began within 180 days of

Father’s filing of the action and because Rule 1915.4(b) permits a 60-day

extension, the trial court should have granted Mother’s continuance because

- 10 -

J. S17039/20

“[t]here was plenty of time remaining in the 45 days the trial court had to

complete the trial once it began.” (Mother’s brief at 17.) Mother further

claims that a continuance would give Father “additional time to prepare his

rebuttal if needed.” (Id. at 13.) Although Mother claims that the trial court

misapplied the rules, it is Mother who misapprehends them.

Contrary to Mother’s assertion, Rule 1915.4 does not require a court to

decide a custody case within a 180-day time period with an additional 60 days

for a continuance. Rather, it requires dismissal if trial has not been scheduled

within 180 days of the filing of the pleading or if the moving party has not

been granted an extension for good cause shown. Harrell, 11 A.3d at 1005.

Rule 1915.4 favors the prompt disposition of custody cases, which is

consistent with the fundamental concern in custody cases, which is the best

interest of the child. Here, the trial court granted Mother one continuance for

the start of trial because Ms. Salem’s report was not yet prepared. Father

then agreed to allow Mother two extensions for delivery of the report.

Nevertheless, Mother failed to timely deliver Ms. Salem’s report.

Consequently, the trial court prohibited her testimony for Mother’s violation of

Pa.R.Civ.P. 1915.8, as well as its scheduling order. On August 2, 2019, the

day scheduled for expert testimony, Mother informed the trial court that

Dr. Medlin was unavailable and Mother requested a continuance, which the

trial court denied. Mother entirely fails to explain how the trial court abused

its discretion in precluding Ms. Salem’s testimony and denying her request for

- 11 -

J. S17039/20

a continuance of Dr. Medlin’s testimony. Rather, Mother misinterprets

procedural rules in an attempt to convince this court that there was additional

time for Mother to present her case. Mother’s argument is at odds with the

applicable rules of procedure and the decisional law of this Commonwealth.

We discern no abuse of discretion by the trial court in denying Mother’s request

to keep the record open for an additional 45 days so that Ms. Salem’s untimely

report and testimony could be admitted and so that Dr. Medlin may appear on

a future date.

In her third issue, Mother claims that the trial court abused its discretion

when, despite awarding shared legal custody, it granted Father the exclusive

right to consent to counseling treatment for the Children because, according

to Mother, “Father is the parent who has been unwilling to work toward

compliance with this requirement.” (Mother’s brief at 17.)

In considering the best interest of the child factors,9 the trial court

specifically found that, with respect to Factor 10, which party is more likely to

9 In custody disputes, trial courts are statutorily required to consider the

16 factors set forth in the best-interest test when determining the child’s best

interests. See 23 Pa.C.S.A. § 5328(a) (“[i]n ordering any form of custody,

the court shall determine the best interests of the child by considering all

relevant factors . . . .”); see also A.V. v. S.T., 87 A.3d 818, 821 (Pa.Super.

2014) (reiterating that “Section 5328 provides an enumerated list of

sixteen factors a trial court must consider in determining the best interests of

the child or children when awarding any form of custody.”).

Section 5328 of the Child Custody Act sets forth the 16-factor best-interest

test, as follows:

- 12 -

J. S17039/20

§ 5328. Factors to consider when awarding

custody

(a) Factors.--In ordering any form of

custody, the 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.

(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.

- 13 -

J. S17039/20

(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 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 -

J. S17039/20

attend to the daily physical, emotional, developmental, educational, and

special needs of the children, that

[even t]hough Mother has testified that she

“advocates” for the Children, her conduct has been

focused on tearing down the relationship between

Father and the Children and interfering with the

Children’s relationship with their therapist. The

current therapist testified that the Children would

need a new therapist due to Mother’s efforts to

actively sabotage the therapeutic relationship by

rejecting “a collaborative therapeutic relationship.”

The [trial c]ourt accepts as credible the testimony

from the therapist, and Father, that Mother discussed

sexual issues involving the Children in the Children’s

presence at therapy despite admonishment from the

therapist to desist. While Father has been cooperative

with the therapist, Mother rejects the opinions and

recommendations of the therapist as well as any other

expert that does not reflect her views.

Trial court opinion, 9/5/19 at 18.

When considering the mental condition of Mother under Factor 15, the

trial court noted that “[t]estimony was presented regarding alleged mental

health conditions of Mother.” (Id. at 20.) Additionally,

(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.

42 Pa.C.S.A. § 5328(a).

- 15 -

J. S17039/20

Mother is in therapy at the present time, though she

has failed to engage in the therapy previously directed

as was recommended by her treatment provider at the

last trial. Mother continues to engage in the same

conduct which has previously caused [the trial c]ourt

to impose a restriction in her time with her Children

to try to protect their mental health and reduce her

negative influence.

Id. When considering Factor 16, which permits the trial court to consider any

other relevant factor, the trial court found the following relevant:

Father filed a petition for contempt of this Court’s

Order of July 24th, 2018 with regard to the

requirement that the parents cooperate with

counseling for the Children. Credible testimony from

the therapist illustrates that Mother engaged in a

course of conduct to undermine the therapeutic

relationship and failed to cooperate with therapy.

Mother discussed [A.J.’s] and [R.J.’s] past sexual

conduct in their presence despite the therapist’s

admonishment that Mother should desist, which was

corroborated by Father. When the therapist did not

agree with Mother’s opinions, Mother’s conduct

became so antagonistic Mother was banned from the

therapist’s practice. As a result, the therapist is no

longer able to maintain a positive therapeutic

relationship with the entire family and believes the

Children should engage with a new therapist. This

conduct is in direct violation of the prior Order.

The [trial c]ourt is concerned about Mother’s

continued inappropriate discussion of sexual and body

themes with the Children. [The trial c]ourt found

Mother in contempt for this same conduct in [its] last

Order entered July 24, 2018 and ordered Mother to

undergo counseling to address those issues and

Mother has failed to comply. [The trial c]ourt

therefore finds again that Mother has engaged in

willful conduct for the purpose of interfering with

[c]ourt-ordered therapy and has continued to discuss

these issues with or in the presence of the Children in

direct and willful violation of [the trial c]ourt’s [o]rder.

- 16 -

J. S17039/20

Though the [trial c]ourt does not find it necessary to

suspend Mother’s rights today, absent strict

compliance with the terms of the Order which are

imposed to assure the safety of the Children, the

custodial time with Mother will need to be supervised

to assure that she does not continue to damage their

mental health or relationship with Father.

Id. at 20-21.

We have thoroughly reviewed the record in this case. The record

supports the trial court’s factual findings and its legal conclusion that it is in

the Children’s best interests for Father to select their counselor. We discern

no abuse of discretion.

Mother next claims that the trial court abused its discretion when it failed

to place adequate safeguards on the Children when they are exposed to

C.D.,10 the minor male child of Father’s fiancé, who engaged in prior sexual

acts with A.J. and R.J. Preliminarily, we note that in her argument on this

issue, Mother refers us to texts on child sexual abuse and incest and also

attaches to her brief an appendix of “secondary source material.” (Mother’s

brief, Appendix E.) “It is black letter law in this jurisdiction that an appellate

court cannot consider anything which is not part of the record in this case.”

Eichman v. McKeon, 824 A.2d 305, 316 (Pa.Super. 2003) (citation omitted);

see also Pa.R.A.P. 1921 (“The original papers and exhibits filed in the lower

court, paper copies of legal papers filed with the prothonotary by means of

10The record reflects that at the time of trial, C.D. was approximately eight

years old. (Notes of testimony, 8/2/19 at 20.)

- 17 -

J. S17039/20

electronic filing, the transcript of proceedings, if any, and a certified copy of

the docket entries prepared by the clerk of the lower court shall constitute the

record on appeal in all cases.”). Therefore, we will not consider any materials

that are not part of the certified record on appeal.

In its opinion, and with respect to Father’s request for relocation, the

trial court noted that although Mother continues to raise concerns about sexual

incidents that occurred between C.D. and A.J. and R.J., the incidents occurred

over a year ago, no additional incidents have occurred since then, and neither

Father nor the Children’s therapist believes the Children are currently at risk.

(Trial court opinion, 9/5/19 at 12-13.) Therefore, the trial court determined

that C.D. did not pose a risk of harm to the Children. Nevertheless, the record

reflects that the trial court entered an order on June 26, 2018, that required

that any contact between the Children and C.D. be supervised until further

order. (Order of court, 6/26/18). Nothing in the record shows that the trial

court vacated or modified the June 26, 2018 order. Therefore, Mother’s claim

that the trial court failed to safeguard the Children when they are in C.D.’s

presence lacks record support.

Mother next complains that the trial court abused its discretion when it

included in its Custody Order that “[i]n the event that Mother engages in any

discussion with, or in the hearing distance of, the Children regarding sexual

themes, then her periods of custody shall immediately terminate and the

Children shall return to Father or his designee.” (Custody order at 20;

- 18 -

J. S17039/20

see also Mother’s brief at 23-24.) Mother claims that this constituted an

abuse of discretion because the trial court entered this part of the order

without a fully developed record because it prohibited Ms. Salem and

Dr. Medlin from testifying. We have disposed of Mother’s arguments

regarding her expert witnesses, and we decline Mother’s invitation to address

them again.

Mother next claims that the trial court abused its discretion “in ordering

both a release to Father of Mother’s mental health records and a specific

psychological treatment for Mother.” (Mother’s brief at 26.) The challenged

portion of the Custody Order states:

Mother shall participate in counseling, at her expense,

and with the qualified therapist of her choosing.

Counseling should initially focus on insight and

awareness to assist Mother with viewing alternative

explanations and effective control of her anger.

Mother’s counseling shall specifically address the issue

of her obsession with and views on the Children’s prior

inappropriate conduct and she shall work with the

therapist to develop proper coping mechanisms and

appropriate communication skills to utilize with the

Children. The new counselor shall specifically

consider the E[MD]R[11] therapy previously ordered

by this Court and determine whether such therapy is

appropriate to address Mother’s conduct. Mother shall

comply with treatment recommendations of the

therapist. If the therapist determines that EMDR

therapy is not appropriate, Mother shall request

a report from the therapist detailing the

reasoning for his/her findings. That report shall

be provided to Father’s counsel within thirty (30) days

of any request, Mother shall execute a release to

11 Eye Movement Desensitization and Reprocessing therapy.

- 19 -

J. S17039/20

authorize Father to verify her compliance with this

provision.

Custody Order at 10 (emphasis added).

Contrary to Mother’s claim, the Custody Order did not require Mother to

sign a release so that Father could obtain her mental health records. The

order clearly states that if Mother’s new therapist determines that

EMDR therapy is not appropriate for Mother, Mother must request that the

therapist issue a report detailing the reasons as to why EMDR therapy is not

appropriate for Mother. It is that report, and only that report, that shall be

provided to Father’s counsel. Moreover, although Mother describes the

court-ordered counseling as “involuntary,” we note that Section 5333 of the

Custody Act authorizes a trial court to require the parties to attend counseling

as part of a custody order. 23 Pa.C.S.A. § 5333(a). We further note that

Mother provides no argument as to why a requirement that she undergo

counseling would not be in her Children’s best interests. We discern no abuse

of discretion.

In her seventh issue, Mother claims that the trial court abused its

discretion in finding Mother in contempt of its July 24, 2018 custody order and

ordering her to pay a portion of Father’s attorney’s fees. (Mother’s brief

at 29.) In her argument on this issue, Mother claims that the July 24, 2018

custody order “is very clear in certain prohibitions and very vague in others.”

(Id. at 30.) Mother then sets forth her interpretation of various provisions of

the July 24, 2018 custody order and testimony from the custody trial in order

- 20 -

J. S17039/20

to convince this court that she was not in contempt. To the extent that Mother

claims that certain provisions of the July 24, 2018 custody order are

unenforceable because she was uncertain of the prohibited conduct due to

vague and indefinite conditions of the order, Mother waives this issue for

failing to raise it with the trial court. See Pa.R.A.P. 302(a) (stating that

“[i]ssues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”). To the extent that Mother requests that we reweigh

the evidence in order to reach her desired result, we decline Mother’s

invitation. Where, as here, the record supports the trial court’s factual

findings, we defer to the trial court. See M.G., 155 A.3d at 1091.

In her eighth issue, Mother complains that the trial court abused its

discretion in “ordering automatic restrictions on [her] visitation as an

additional punishment if Mother does not timely comply with the consequences

ordered on her for being found in contempt of court, namely enrollment in and

completion of a specific training program.” (Mother’s brief at 33.)

The record reflects that the trial court found Mother in contempt for

violating its July 24, 2018 custody order “for willfully disparaging Father,

continuing to discuss sexual topics with and in the presence of the Children,

and failing to cooperate with the Children’s therapy as required.” (Custody

Order, at 19.) In anticipation of Mother’s continued violations of its orders,

the trial court included a provision that if “Mother continues to violate [the

trial c]ourt’s [o]rders and continues to engage in a course of conduct designed

- 21 -

J. S17039/20

to incite conflict between the parties and alienate the Children from Father,”

Mother shall participate in high-conflict behavioral skills training. (Id.) The

trial court also ordered that if Mother did not complete the training, then her

rights of partial physical custody would be supervised. (Id. at 20.) The trial

court further ordered that if “Mother engages in any discussion with, or in

hearing distance of, the Children regarding sexual themes, then her periods

of custody shall immediately terminate and the Children shall return to Father

or his designee.” (Id.)

Mother requests us to inquire into the propriety of future sanctions in

the event that Mother violates the Custody Order. Because there is no

violation of the Custody Order before us that resulted in a finding of contempt

and imposition of sanctions set forth in the Custody Order, a review of this

issue would be premature and improper.

In her final issue, Mother claims that the trial court abused its discretion

when analyzing the best-interest factors.

At the outset, we note that the trial court found that Factor 2 (past

abuse), Factor 3 (parental duties performed by each party); Factor 5

(availability of extended family); Factor 7 (well-reasoned preference of child);

Factor 11 (proximity of parties’ residences); and Factor 12 (ability to care for

child) weighed in favor of neither party. The trial court found that Factor 6

(child’s sibling relationship) favored keeping the Children on the same

- 22 -

J. S17039/20

schedule with supervision. The trial court determined that Factor 14 (drug or

alcohol abuse) was not an issue.

The trial court determined that the following factors weighed in Father’s

favor: Factor 1 (which party more likely to encourage and permit frequent

contact between child and other party); Factor 9 (which party most likely to

maintain loving, stable, consistent relationship with child adequate for child’s

emotional needs); Factor 10 (which party more likely to attend to daily

physical, emotional, developmental, educational, and special needs of child);

Factor 13 (level of conflict between parties and willingness and ability to

cooperate with one another); Factor 15 (mental and physical condition of

party); and Factor 16 (any other relevant factor). With respect to Factor 13,

the trial court noted that it weighed “heavily” in Father’s favor. (Id. at 19-20).

Mother specifically complains that the trial court abused its discretion in

finding that Factor 2 (which party can better provide adequate physical

safeguards and supervision) and Factor 12 (each party’s availability to care

for the child) to be neutral and Factor 13 (level of conflict between the parties)

to weigh heavily in Father’s favor.

With respect to Factor 2, the trial court found that:

Mother continues to make allegations that appear, by

all testimony, to be baseless. Though Mother alleges

that Father has left the Children unsupervised with

[C.D.] in violation of the Order, she failed to present

any evidence of this claim. Evidence she did present

involved an incident where only [A.J.] and [R.J.] rode

bikes to a park alone without helmets. While the

Court recognizes that the Children’s lack of

- 23 -

J. S17039/20

appropriate safety gear at Father’s house is

concerning, it is not a direct violation of the Order and

does not indicate a risk of harm or abuse in Father’s

home. The Court has imposed a supervisor

requirement as it relates to the Children’s contact with

[C.D.] and will address better safeguards and

supervision by each parent in the accompanying

Order. This factor does not weigh in favor of either

party.

Id. at 14-15.

With respect to Factor 12, the trial court found that

neither parent has extended family available to assist

with the children. Both parents testified that, under

the current circumstances, they are each available to

pick up the Children from school and care for them if

needed. The Children also have before and after

school care. It is clear, however, from the evidence

presented that the Children’s negative behavior and

delinquent acts warrant an increase in the supervision

which will be addressed in the accompanying Order.

This factor is neutral.

Id. at 19.

With respect to Factor 13, the trial court found that

[t]here is a high level of conflict between the parties,

largely as a result of Mother’s conduct, but also due

to Father’s approach to the conflict. Though Father

has requested that Mother’s rights be suspended, it is

in response to Mother’s conduct exacerbating an

already difficult situation. Mother failed to cooperate

with the Children’s court-ordered counseling,

continues to openly disparage Father with accusations

of a “pornography addiction[,”] and continues to

rehash the prior inappropriate conduct by [A.J.] and

[R.J.] with [C.D.] in order to prevent the families and

the Children from moving on. It is apparent to the

[trial c]ourt that Mother requires more therapeutic

intervention as there are safety concerns related to

her conduct toward the Children, Father, however,

- 24 -

J. S17039/20

does not even attempt to co-parent with Mother as it

relates to the Children’s care. At some point, the

parties must work together to consistently parent the

Children. This factor heavily favors Father and a

directive for the parties to engage in co-parenting

counseling.

Id. at 19-20.

We have thoroughly reviewed the record in this case and conclude that

there is no reason to disturb the Custody Order. The trial court thoroughly

considered the evidence and made appropriate determinations on credibility

and weight. The trial court applied all of the Section 5328(a) factors and

concluded that it is in the best interests of the Children that shared legal

custody of the Children be awarded to Mother and Father and primary physical

custody of the Children be awarded to Father. The record supports the trial

court’s findings that formed the basis of its decision and its conclusions are

reasonable as demonstrated by the evidence. Therefore, no relief is due.

In his cross-appeal, Father raises the following issues:

1. [Whether t]he trial court erred as a matter of

law in applying the relocation factors and case

law governing relocation in a child custody

case[?12]

2. [Whether t]he trial court erred in making a

finding of fact in relation to the question of

preserving the relationship between the

non-relocating party and the [C]hildren when it

indicated:

12 The record reflects that Father sought to relocate from York, Pennsylvania

to the Hummelstown/Hershey area. (Custody Order, at 11.)

- 25 -

J. S17039/20

“Father has proposed adding

additional holidays and more time

over summer vacations, however it

is the loss of the regular contact

that is the issue. Father has not

given significant thought to how his

relocation would affect [M]other’s

time with the [C]hildren nor does he

have a concrete plan[”?]

3. [Whether] the trial court erred in making a

finding of fact in relation to the question of

whether the relocation will enhance the general

quality of life of the party seeking the relocation

when it indicated:

“However, Father’s work is

currently accommodating him by

providing an office in York County

so we do not find this reasoning

credible. Father can, and currently

does, work from York and could

continue to do so[”?]

4. [Whether t]he trial court erred in making a

finding of fact that the proposed move to

Hummelstown/Hershey area from York was “an

extreme distance” which would significantly

impact Mother’s rights to partial custody[?]

5. [Whether t]he trial court erred in making a

finding of fact in relation to whether the

relocation will enhance the general quality of life

for the [C]hildren by indicating:

“The majority of the testimony from

both parents was centered in the

past, rather than looking forward to

what would be best for the

[C]hildren[”?]

6. [Whether t]he trial court erred in its analysis

when it indicated:

- 26 -

J. S17039/20

“Considering all of the factors, the

[trial] court finds that overall that

Father has failed to carry his

burden. Father’s purpose in

relocating is clearly to benefit the

travel time of his fiancée with little

thought given as to whether the

relocation would provide any

measurable benefit to the

[C]hildren. Further, the relocation

would significantly impact Mother’s

custody and Father proposes no

viable solutions[”?]

Father’s brief at 4-6 (emphasis omitted).

At the outset, we note that Pa.R.A.P. 2136 addresses briefs in cases

involving cross-appeals. In a cross-appeal, the moving party is deemed the

appellant for purposes of Chapter 21 of the Rules of Appellate Procedure,

which addresses briefs and reproduced records. Because Father is deemed

the appellant in his cross-appeal, Father was required to adhere to

Pa.R.A.P. 2119, which requires that the argument section of his brief be

divided into as many parts as there are questions to be argued and have at

the head of each part the particular point treated therein. Pa.R.A.P. 2119(a).

Here, even though Father raises six issues in his statement of questions

involved, Father states that he “will divide his argument into two distinct

sections, the first encompassing the trial court’s findings and the second

involving the application of the findings to the custody relocation statute and

case law.” (Father’s brief at 16.) Father further states that “the matters

complained of on appeal numbers two, three, four, and five will be argued

- 27 -

J. S17039/20

together in the first part of the argument, and numbers one and six will be

argued together in the second part of the argument.” (Id.) Father has clearly

violated Rule 2119(a), and this violation hampers an issue-by-issue review.

Notwithstanding this violation, we note that in the first section of his

argument, Father does nothing more than set forth select portions of

testimony in an effort to convince this court to reach a different result. We

have thoroughly reviewed the record in this case. The record supports the

trial court’s factual findings, and we will not disturb them. In the second

section of his brief, Father sets forth the trial court’s analysis of certain

relocation factors and then offers his opinion as to why the analysis was

incorrect. For example, Father points out that the trial court determined under

relocation Factor 2 (impact relocation will have on child’s physical,

educational, and emotional development)13 that because relocation would

13 With respect to relocation, the court must consider the following factors:

(1) The nature, quality, extent of involvement and

duration of the child’s relationship with the party

proposing to relocate and with the nonrelocating

party, siblings and other significant persons in

the child’s life.

(2) The age, developmental stage, needs of the

child and the likely impact the relocation will

have on the child’s physical, educational and

emotional development, taking into

consideration any special needs of the child.

(3) The feasibility of preserving the relationship

between the nonrelocating party and the child

through suitable custody arrangements,

- 28 -

J. S17039/20

necessitate a change in the Children’s schools, before and after school care,

and medical providers, the trial court erred because “every relocation case is

going to require a change in the children’s school district, and likely will also

require a change in the children’s before and after school care and medical

providers.” (Father’s brief at 37.) Father entirely fails to show that the trial

considering the logistics and financial

circumstances of the parties.

(4) The child’s preference, taking into consideration

the age and maturity of the child.

(5) Whether there is an established pattern of

conduct of either party to promote or thwart the

relationship of the child and the other party.

(6) Whether the relocation will enhance the general

quality of life for the party seeking the

relocation, including, but not limited to, financial

or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general

quality of life for the child, including, but not

limited to, financial or emotional benefit or

educational opportunity.

(8) The reasons and motivation of each party for

seeking or opposing the relocation.

(9) The present and past abuse committed by a

party or member of the party’s household and

whether there is a continued risk of harm to the

child or an abused party.

(10) Any other factor affecting the best interest of

the child.

23 Pa.C.S.A. § 5337(h).

- 29 -

J. S17039/20

court’s consideration of the ten relocation factors and its denial of relocation

was not in the Children’s best interests. Instead, Father “submits that if the

factual underpinnings regarding the [trial] court’s findings are vacated[, then]

the record demonstrates he has easily met his burden of proof with regard to

the relocation factors.” (Id. at 39.) Our standard of review, however,

requires us to defer to the trial court’s factual findings where, as here, the

record supports those findings. See M.G., 155 A.3d at 1091.

In its thoughtful consideration of the relocation factors, the trial court

determined that Factor 1 (relationships with non-relocating party, siblings,

and other significant person’s in child’s life) slightly favored relocation. With

respect to Factor 2 (impact of relocation on child’s physical, educational, and

emotional development), the trial court determined the factor favored neither

party. The trial court found that Factor 3 (feasibility of preserving relationship

between non-relocating party and child) weighed slightly against relocation

because relocation would adversely impact Mother’s time with the Children.

The trial court determined that Factor 4 (child’s preference) was neutral. The

trial court further found that Factor 5 (established pattern of conduct to

promote or thwart relationship with other party) favored Father’s relocation

because of Mother’s “established pattern of efforts to thwart the relationship

of the Children with Father.” (Trial court opinion, 9/5/19 at 11.) The trial

court determined that Factor 6 (whether relocation would enhance the general

- 30 -

J. S17039/20

quality of life for the party seeking to relocate) weighed against relocation,

and it noted that

Father asserts that the reason for relocation is to

improve his family’s situation and that working in

Harrisburg will yield him more income and better

opportunity for advancement. However, Father’s

work is currently accommodating him by providing an

office in York County so [the trial court does] not find

this reasoning credible. Father can, and currently

does, work from York and could continue to do so.

Additionally, [the trial court] note[s] that Father’s

paramour testified that she has not obtained

permission from her own children’s father for the

proposed relocation and had no concrete plans.

Further, there is no justification for the extreme

distance of the move—from York to

Hummelstown/Hershey area—when Father could

move a shorter distance toward Harrisburg and

remain in York County without significantly impacting

Mother’s custody. Though Father classified his

proposed move as a “short distance to Dauphin

County[,”] the location he has selected is on the far

eastern side of Dauphin County, near the Lebanon

County border. . . . [T]his factor weighs against

relocation.

Trial court opinion, 9/5/19 at 11.

With respect to Factor 7 (whether relocation will enhance child’s quality

of life), the trial court determined that because the testimony focused on the

past instead of looking forward to the Children’s best interests, the factor

weighed against relocation. (Id. at 12.)

With respect to Factor 8 (reasons and motivation of each party for

seeking or opposing relocation), the trial court determined that this factor did

not weigh in favor of either party. In considering this factor, the trial court

- 31 -

J. S17039/20

noted that Father’s reasons for relocation “are primarily for his own

self-interest rather than the overall best interests of the Children” and

Mother’s opposition is her belief that Father is trying to take the Children from

her and that the distance will make it difficult for her to participate in the

Children’s activities and school events. (Id.)

The trial court also found that Factor 9 (present or past abuse

committed by a party or member of party’s household and whether a

continued risk of harm exists) was neutral for the reasons set forth previously

in this memorandum. It finally determined that Factor 10 (any other factor

affecting child’s best interest), weighed in favor of neither party.

Following consideration of all of the relocation factors, the trial court

concluded that

Father has failed to carry his burden. Father’s

purpose in relocating is clearly to benefit the travel

time of his fiancé with little thought given as to

whether the relocation would provide any

measureable benefit [to] the Children. Further, the

relocation would significantly impact Mother’s custody

and Father proposes no viable solutions.

Id. at 13.

Our review of the record demonstrates that the record supports the trial

court’s factual findings and its legal conclusions are free of error.

Order affirmed.

- 32 -

J. S17039/20

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/11/2020

- 33 -