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[U] P.H.D. v. R.R.D.

Superior Court of Pennsylvania

February 4, 2014

P.H.D., Appellee
R.R.D., Appellant


Appeal from the Order entered on May 2, 2013, in the Court of Common Pleas of Allegheny County, Family Court, at No(s): FD 99-02811-005




R.R.D. ("Father") appeals, pro se, from the Order that ruled that P.H.D. ("Mother") would retain sole legal custody and primary physical custody of the parties' minor sons, J.D. (born in March 1999) and R.D. (born in December of 2001) (collectively "the Children").[1] In this Order, the trial court additionally directed that (1) Father shall continue to have supervised visitation with the Children; (2) after two consecutive supervised visits, Father may thereafter attend the Children's events, but, in the interim, he is prohibited from attending such events; (3) the Children shall continue to participate in their court-ordered therapy; and (4) there shall continue to be a condition placed upon Father that he must post a bond, in the amount of $1, 500, in order to file any future motions in the trial court. We affirm.

After the parties' separation, Mother and Father had shared legal and physical custody of the Children. However, in May 2007, the trial court entered an Order awarding Mother sole legal custody. Subsequently, in July 2010, the trial court awarded Mother primary physical custody.[2] On appeal, this Court affirmed the trial court's May 2007 custody Order, see P.H.D. v. R.R.D., 963 A.2d 577 (Pa.Super. 2008) (unpublished memorandum), and a separate panel later affirmed the July 2010 custody Order. see P.H.D. v. R.R.D., 29 A.3d 823 (Pa.Super. 2011) (unpublished memorandum); appeal denied, 23 A.3d 542 (Pa. 2011).

By an Order entered on June 28, 2011, the trial court made Father's custody contingent on his completion of therapy. Pending completion, Father was limited to weekly supervised visits.[3] On appeal, this Court affirmed the June 28, 2011 Order. see P.H.D. v. R.R.D., 46 A.3d 817 (unpublished memorandum), appeal denied, 47 A.3d 848 (Pa. 2012).

On January 19, 2012, Mother filed a contempt Petition against Father, alleging that he had violated the June 28, 2011 custody Order, as modified by the September 20, 2011 custody Order, by initiating unsupervised contact with the Children at J.D.'s school during J.D.'s band concert. The trial court held a hearing on the contempt Petition on March 1, 2012. see P.H.D. v. R.R.D., 56 A.3d 702, 703-04 (Pa.Super. 2012). By an Order entered on March 5, 2012, the trial court dismissed the contempt Petition, but modified the June 28, 2011 custody Order by providing that Father may "not appear at activities or places where the [C]hildren would reasonably be expected to be at a particular time, " and to put Father on notice that such behavior would result in a contempt finding in the future. Id. at 704-05. Father filed an appeal with this Court, asserting a due process violation and inadequate notice. Id. at 703. This Court vacated the portion of the trial court's March 5, 2012 Order that modified the prior custody Order, based on lack of notice. Id. at 707-08. Additionally, the panel noted that, if the trial court were to hold a hearing on modification in the future, the parties would be on notice that modification was at issue in fact and at law. Id. at 708.

In June 2012, Father filed a Petition for modification of the existing custody Order, seeking primary physical custody and sole legal custody of the Children. The trial court set forth the procedural history that followed:

A hearing was held on February 28, 2013[, ] to address [Father's Petition for] modification [of custody].[FN 1] At [this] hearing, Father … raise[d] several issues with [regard to] the [C]hildren's care under Mother's supervision dating back to the previous custody hearing in June 2010. Mother's relationship with her paramour … has continued to cause concern for Father, who believes that Mother is setting a poor example for the [C]hildren by living with [her paramour] despite their not being married. Additionally, Father was skeptical about [Mother's paramour] being the sponsor for [J.D.'s upcoming] confirmation [in the Catholic Church] and questioned whether [Mother's paramour] is a Catholic and in good standing with the [C]hurch.
[FN 1] The hearing was delayed due to Father's pending appeal[, i.e., from the trial court's March 5, 2012 Order].
Father voiced his disagreement with the recommendation that he should seek personal counseling and[, ] at this point[, ] has not made any effort to do so. However, Father testified [that] he was open to family counseling with Mother, even though prior attempts had failed. … Father [maintained] that the reason [] he did not see the [C]hildren in accordance with the court[-]ordered schedule was that the visits were on the weekends[, ] which conflicted with his work schedule.
Consistent with her previous testimony, Mother maintained that the [C]hildren continue to do well[, ] both academically and emotionally[, ] in her care. Mother testified that[, ] despite Father's statements to the contrary, both [of the C]hildren have a great relationship with her paramour … and that [her paramour] continues to provide for her children financially, as well as serving as a role model. Mother testified that she thinks it is still in the [C]hildren's best interest not to have unsupervised visits with Father. However, Mother did agree that she is not opposed to Father receiving basic information about [the Children's] grades or religious events, as long as he went through the proper channels to do so.
Mother testified to her concerns with Father's requests to attend [the Children's] events, such as band concerts. Mother testified to a specific incident in which Father attended [J.D.'s] band concert, sat in the first row, and attempted to draw both children's attention. When the concert had completed, Mother testified [that J.D.] was afraid to come out from backstage for fear that his father would cause a scene[, ] and the family exited out of a side door. Mother believes that these types of interactions only further confuse the [C]hildren[, ] who don't understand why they aren't currently seeing [] Father.
… [J.D.] testified to being very involved in extracurricular activities. He is involved in multiple sports throughout the year such as soccer and volleyball. He was also diligently preparing for his confirmation ceremony. However, it was evident from his testimony that [J.D.'s] lack of relationship with his father had taken an emotional toll on him. [J.D.] testified he was sad that he hadn't seen his father in some time, but when pressed to discuss the situation further, [J.D.] became quite emotional and left the room.
[R.D.] testified that he was also involved in multiple extracurricular activities. Besides practicing for running crosscountry …, [R.D.] plays the trumpet and plays in the jazz band at school. [R.D.] also expressed that he misses his father and would like to see him. He further testified that things at home are going fine and that he has a good relationship with both Mother and [her paramour].
Based upon this meeting with the [C]hildren, [the trial court] issued an interim [O]rder on March 22, 2013[, ] which provided for Father to have supervised visits with a specific supervisor and scheduled an additional conciliation in order to address the issue of Father's attending [J.D.'s] confirmation. [The trial court] felt it important to once again offer Father the chance to see his children in a supervised setting, and if those visits went well, perhaps Father could attend [J.D.'s] confirmation. Unfortunately, Father again refused to exercise his parental custody periods with his children.
At the April 16, 2013 hearing, Father still had not had any visits with his children, and the parties were once again called to testify as to why these visits were not occurring. [The trial court] wanted to give Father [an] opportunity to place on the record his reasons [] for not attending the supervised visits. Prior to the April 16, 2013 [hearing], [the trial court] had heard all of the evidence [that] supported [the court's] findings and conclusions[. Additionally, the trial court] analyzed the sixteen factors [set forth in 23 Pa.C.S.A. § 5328(a)] in support of the custody [O]rder. During her testimony on April 16, 2013, Mother stated that because of a letter sent by [the Children's father] to Father Ken and Bishop Zubik (stating that [Mother's paramour] was a Muslim), [] the [C]hurch, which had previously made an exception to allow [her paramour] to serve as a [confirmation] sponsor because he was a practicing Christian, backtracked and said that he could no longer serve as [J.D.'s] sponsor. Mother further testified that [J.D.] had made it known to her that he did not wish for [Father] to be present at the confirmation.
During Father's testimony, when [the trial court] asked [him] why he was not seeing his children, he stated that "I'm not going to authenticate (sic) what you've done here." ([] Trial Transcript, April 16, 2013, p. 27 14-15). When [the trial court] explained to [Father] that his feud with [the court] and Mother was only hurting his children, he refused to acknowledge it. Instead, Father continued to blame Mother[] and the court for the current situation, but at no time claimed any responsibility for his actions.
Following that testimony, [the trial court] entered an interim [O]rder of Court on April 16, 2013[, ] which stated that Father was not to attend [J.D.'s] confirmation. Subsequently, [the trial court] issued [an Order, entered] on May [2], 2013[, ] which stated that Mother was to remain the primary physical and legal custodian of the [C]hildren. The [O]rder permits Father supervised visits …[, ] and further states that Father may not attend any of the [C]hildren's events until he has had two consecutive supervised visits. The [C]hildren were also to continue in therapy[, ] as [previously] ordered by the court[.]

Trial Court Opinion, 7/1/13, at 4-8 (some footnotes omitted).

Father timely filed a Notice of appeal and Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Father presents the following issues for our review:
1. Did the trial court commit an abuse of discretion and/or error of law in awarding Mother primary physical [custody] and legal custody and Father supervised visitations with limitations on attending [the Children's] events?
2. Did the trial court commit an abuse of discretion and/or error of law in its application of the factors set forth in 23 Pa.C.S.A. [§] 5328[?]
3. Did the trial court commit an abuse of discretion and/or error of law in determining that the bond conditions limiting Father['s] access to the court remain in effect?
4. Did the trial court commit an abuse of discretion and/or error of law in denying Father's pretrial motions[, wherein Father requested that the trial court hold Mother in contempt of court and that the trial court judge recuse herself from the case?]

Father's Brief at 1.

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 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).

[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) (citation omitted).

With any custody case decided under the Child Custody Act, [4] the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. 23 Pa.C.S.A. § 5338.

We will address Father's first and second issues together, as they are interrelated. Father argues that the trial court abused its discretion when it granted Mother sole legal custody and primary physical custody, and granted Father only supervised physical custody, with restrictions, because the court failed to properly take into account the sixteen factors that a trial court must consider when awarding child custody, as set forth in 23 Pa.C.S.A. § 5328(a). According to Father, the evidence does not support the trial court's custody award.

(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.
(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) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16)Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

Here, in its "Findings and Conclusions, " the trial court considered the testimony and evidence from the custody hearings held on February 28, 2013, March 21, 2013, and April 26, 2013, against all of the custody factors listed in section 5328(a), and set forth its findings regarding each of the factors. See Findings and Conclusions, 5/2/13, at 1-6 (unnumbered); see also Trial Court Opinion, 7/1/13, at 11. We further observe that the trial court discussed in greater depth the most significant factors, listed at section 5328(a)(8), (3), and (7), that had an impact on the court's decision, stating as follows:

Clearly, factor eight (8) was one of the more decisive factors in this case. Factor eight involves an analysis of whether either parent is likely to turn the children against the other parent. While Father has not had any meaningful contact with the [C]hildren since 2010, the date of the last modification hearing, the record in this case clearly supports a finding that Father's behavior related to this factor has not, and will not change. The contempt for which Father holds Mother, and [the trial c]ourt, is palpable, and readily evident through a review of the record. In addition, Father has consistently refused to attend therapy[, ] which could perhaps help Father to recognize the harm that he caused to his children by so consistently and frequently disparaging Mother and pressuring the [C]hildren to join him.
Factor three (3) would also seem to be an important factor. In reviewing Father's modification [P]etition, [the trial court is] required to consider the parental duties performed by each party. In this case, apparently because he disagrees with [the trial court's O]rders, Father has failed to perform any meaningful parental duties for these children since the date of the last modification hearing, except for providing them with financial support. This is a true shame, because [the trial court] believe[s] that the [C]hildren love Father[, ] and he has the potential ability to be a caring, loving, effective parent. Unfortunately, the legal wrangling in this matter has consumed Father to the point that he has refused to see the [C]hildren in any meaningful capacity since July 2010. When attempting to weigh the applicable factors in this matter, it is hard to escape the undeniable fact that to grant Father's [P]etition, [i.e., ] to place Father in the role of primary physical custodian, would be to return the [C]hildren to a parent who has essentially abandoned them since July 2010 because he [] disagree[s] with [the trial court's] rulings.
Another [important factor] … is the [C]hildren's preference, [addressed in] custody factor seven (7). [The trial court] recognize[s] that these children want to see [] Father. [The court has] given the [C]hildren the opportunity to see [] Father through supervised visitation, in which Father again has declined to participate. [The trial court] required the supervised visitation not only because of Father's conduct in this case and his refusal to comply with [court O]rders [that] have directed him to attend therapy, but also because it will create a buffer whereby Father is not able to easily pressure the [C]hildren. …
[The trial court] also should discuss the provision of [its] May [2], 2013 [O]rder [that] required two consecutive supervised visits by Father with the [C]hildren before he would be permitted to attend the [Children's] extracurricular events, like [J.D.'s] band concert[, ] which was the subject of Father's April 3, 2012 appeal. While [the trial court's] clarification of [its] July 2010 custody [O]rder was considered a modification for purposes of Father's 2012 appeal[, see P.H.D., 56 A.3d at 702, 708], this issue was consolidated with Father's previously filed modification [P]etition, and[, ] since modification[, ] was the issue at hand for purposes of the February 28, 2013 hearing, it became appropriate to consider whether prohibiting Father from these events was indeed supported by the evidence. It has never been [the trial court's] intention in this matter to restrict Father's liberty, or Father's employment[, ] which he claims is so closely tied to his ability to attend these events. [The court] determined that Father's conduct at these events, even merely his presence at these events, was having a negative effect on the [C]hildren, a conclusion [that] is supported by credible testimony [from] Mother. That being said, [the trial court finds] that if he acts appropriately[, ] Father should attend these events[] to be a more meaningful part of his children's lives. That is why [the court] merely required that Father attend two consecutive supervised visits before attending these social events. After such a long absence, the [C]hildren need to see [] Father in person before he appears at one of these events. During the supervised visits, Father could discuss with the [C]hildren their upcoming events and the fact that he would be there to support them.

Trial Court Opinion, 7/1/13, at 11-13.

After a careful review of the record, we determine that the trial court's well-reasoned findings regarding the custody factors set forth in section 5328(a) are supported by competent evidence in the record. Thus, we will not disturb them. See C.R.F., 45 A.3d at 443. We discern no abuse of the trial court's discretion in its custody award. Accordingly, Father's first two issues on appeal do not entitle him to relief.

Next, Father argues that the trial court erred and/or abused its discretion by continuing its imposition of a condition that Father must post a $1, 500 bond in order to file any future motions in the trial court. Father contends that the continuation of this condition violates his constitutional guarantee to due process by limiting his access to the courts.

In his appeal from the Order entered on June 28, 2011, Father raised the issue that the trial court's imposition of this particular condition denied him due process of law. See P.H.D., 46 A.3d 817 (unpublished memorandum at 6). In that appeal, the panel concluded that Father had waived the issue by failing to raise it in his Concise Statement or Errors Complained of on Appeal. See id. (citing Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that any issue not included in an appellant's Concise Statement of Errors Complained of on Appeal is waived)). To the extent that Father now raises the same due process claim by challenging the trial court's continuation of the condition, Father has waived the issue by his failure to preserve it at the earliest opportunity to challenge the condition on appeal. See, e.g., Cagnoli v. Bonnell, 611 A.2d 1194, 1195-96 (Pa. 1992). Further, although we recognize that Father is proceeding pro se, this does not protect him from a finding of waiver. It is well established that

[w]hile this [C]ourt is willing to liberally construe materials filed by a pro se litigant, … [such litigant] is not entitled to any particular advantage because he lacks legal training. Further, any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.

Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa.Super. 2003) (citations, quotation marks and brackets omitted). Accordingly, we conclude that

Father has waived any challenge to the continuation of the $1, 500 bond condition imposed by the trial court.

Next, Father argues that the trial court erred and/or abused its discretion by denying his "pre-trial motion" requesting that the court hold Mother in contempt. According to Father, Mother was in contempt of the trial court's June 28, 2011 and July 2, 2010 Orders by failing to engage in family therapy, as directed.

We determine that Father is improperly interjecting Mother's purported contempts of previous trial court Orders into the present custody modification proceedings. Nevertheless, it is well-established that "each court is the exclusive judge of contempts against its process." G.A. v. D.L., 72 A.3d 264, 269 (Pa.Super. 2013) (citation omitted). Additionally, "[t]his Court must place great reliance on the sound discretion of the trial judge when reviewing an order of contempt[, ]" and we will not disturb a trial court's findings on a contempt petition absent a clear abuse of discretion. Id. In the instant case, we discern no abuse of the trial court's discretion in not holding Mother in contempt of any of its prior Orders. Father's claim in this regard is wholly frivolous.

Finally, we review Father's contention that the trial court judge abused her discretion by denying Father's Motion requesting the judge to recuse herself from the case. Father asserts that the trial court judge had committed so many errors of law and abuses of discretion that she was unable to focus on the best interests of the Children. According to Father, the trial court judge's alleged personal bias and prejudice against Father was so great that it prevented her from impartially presiding over the case, mandating her recusal. We disagree.

The standards for recusal are well established. It is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially. Regarding the disposition of a motion for recusal, this Court has explained:
In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to access the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair and competent.

Arnold v. Arnold, 847 A.2d 674, 680-81 (Pa.Super. 2004) (citations, ellipses and quotation marks omitted).

Regarding Father's claim, the trial court judge stated as follows in her Opinion:

Father alleges … that I should recuse myself because of a prior working relationship with opposing counsel. I am completely and utterly at a loss as to whom Father alleges I used to work with, but I have not worked in any professional capacity alongside Mother's attorney, the [guardian ad litem], or Father's attorney.
… I have no interest in involving myself in a power struggle with Father. Unfortunately, recusing myself from this matter would be unfair both to my colleagues on the bench as well as the parties and the [C]hildren. This is one case where knowledge of the case history is vital, and I am painfully aware of the history. I can assure Father that I bear no bias toward him based [on] any extrajudicial source, and that the continued basis behind his recusal requests seem to be exclusively surrounding adverse rulings toward Father [that] I have made in this case. Adverse rulings alone do not establish the requi[si]te level of bias warranting recusal of a trial judge. Sluslaw v. Hoffman, 861 A.2d 269, 274 (Pa.Super. 2004). Recusing myself, simply because I no longer wish to deal with Father[, ] would unfortunately send a troubling message to the [C]hildren that Father's complaints about this [c]ourt and Mother were somehow validated[, ] and that continued inappropriate behavior will achieve a desired result. For these reasons, recusal is not appropriate.

Trial Court Opinion, 7/1/13, at 13-14; see also Arnold, 847 A.2d at 681 (stating that "[a]dverse rulings alone do not establish the requisite bias warranting recusal, especially where the rulings are legally proper."). Here, the trial court's rulings are legally proper, and we determine that the trial court properly exercised her discretion in denying Father's recusal request.

Accordingly, we affirm the trial court's custody Order entered on May 2, 2013.[5]

Order affirmed. Motion to expedite decision in appeal denied as moot.

Judgment Entered.

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