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

Superior Court of Pennsylvania

February 4, 2014

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

NON-PRECEDENTIAL DECISION

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

BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

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this Court affirmed the trial court's May 2007 custody Order, see P.H.D. v. R.R.D., 963 A.2d 577 (Pa.Super. 2008) (unpublished memorandum), and a separate panel later affirmed the July 2010 custody Order. see P.H.D. v. R.R.D., 29 A.3d 823 (Pa.Super. 2011) (unpublished memorandum); appeal denied, 23 A.3d 542 (Pa. 2011).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 see P.H.D. v. R.R.D., 46 A.3d 817 (unpublished memorandum), appeal denied, 47 A.3d 848 (Pa. 2012).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 ...


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