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[U] J.S.S v. M.J.S.

Superior Court of Pennsylvania

February 11, 2014

J.S.S, Appellee
v.
M.J.S., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered March 18, 2013 In the Court of Common Pleas of Allegheny County Family Court, at No(s): FD10-007983-008.

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, OLSON, and MUSMANNO, JJ.

MEMORANDUM

PANELLA, J.

M.J.S. ("Father") appeals the custody order entered March 18, 2013, wherein the trial court granted J.S.S. (" Mother") primary physical custody, and granted Father partial physical custody, of their m ale child, C.W.S (born in April of 1997); their fem ale child, A.C.S. (born in March 2000); and their m ale child, T.C.S. (born in November of 2004) (collectively "the Children"). Mother and Father were also granted shared legal custody. We vacate and remand.

Mother and Father were married on July 22, 1995, and separated on April 5, 2010. Following an unsuccessful attempt to mediate their custody issues, Father filed a Complaint for Primary Physical Custody of the Children on July 22, 2010. Generations Education and Mediation programs were scheduled. On July 23, 2010, Mother filed a Complaint in Divorce, along with a counterclaim for primary physical custody of the Children.

Father filed a Motion for Interim Custody in August 2010 in an attempt to obtain shared physical custody, which was denied. The parties then commenced co-parenting counseling with Dr. Wilson, and entered into an agreement for a shared custody schedule on a short term basis. As the custody issue was not resolved by this agreement, the trial court ordered psychological evaluation to be conducted by Dr. Eric Bernstein in January of 2011. Upon completion of the psychological evaluation, a judicial conciliation was scheduled for April 6, 2011, but later rescheduled for March 28, 2011.

Father filed a second Petition for Interim Custody. Pursuant to the recommendation of Dr. Bernstein, an Interim Custody Order was entered on March 15, 2011. Due to the fact that the parties could not determine a holiday custody schedule, the trial court entered another Interim Order on March 28, 2011, vacating all prior orders and reiterating the term s of the March 15, 2011 order and adding additional provisions regarding co-parenting counseling, holidays, and vacations. As the parties were still unable to reach an agreement as to holidays, the trial court entered an order on April 13, 2011, outlining a holiday custody schedule. The trial court scheduled a pre-trial conference for July 26, 2011. Father filed motions to obtain compliance with vacation provisions, as well as to allow the younger Children to attend the eldest child's confirmation, which were granted by the trial court.

On August 18, 2011, the trial court scheduled a three-day trial for November 7, 15, and 29, 2011.[1] The trial actually occurred on November 7, 15, 22, 23, and December 19, and 21, 2011. An updated psychological evaluation was conducted during this time period.

Following the custody trial, the trial court entered a custody order on January 18, 2012, outlining Mother's and Father's custodial periods for 2012, 2013, and 2014. On February 1, 2012, Mother filed a Motion for Reconsideration of the January 18, 2012 custody order. The trial court granted Mother's Motion for Reconsideration in part to allow for a review hearing before implementation of the trial court's 2013 and 2014 physical custody schedule in conjunction with a new psychological evaluation. A review hearing was set for November 19, 2012, and the trial court ordered an updated psychological evaluation to be completed before the review hearing. Hearings were held on November 19, and December 5, 2012. The custody matter was not completed, and, on December 6, 2012, the trial court stayed the January 18, 2012 custody order relating to the increased custody provisions for 2013 and 2014.

Following the stay, Father allegedly engaged in various threatening conduct towards Mother, and she requested an order of no-contact, which was granted on an interim basis on December 18, 2012. Father filed a Petition for Protection from Abuse ("PFA") on December 27, 2012, and the trial court dismissed Father's PFA petition on January 13, 2013. On February 5, 2013, the trial court granted Mother counsel fees, reasoning that Father had filed his PFA petition in bad faith.

The custody proceedings resumed on March 8, and March 11, 2013. By order dated March 14, 2013, and entered on March 18, 2013, the trial court made the physical custody provisions of primary physical custody to Mother and partial physical custody to Father, and shared legal custody to both parties as listed in the January 18, 2012 order permanent.

On April 12, 2013, Father filed a timely notice of appeal and a concomitant statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a) opinion on May 23, 2013. On July 10, 2013, Mother filed a Motion to Quash Father's appeal, alleging Father's numerous violations of the Pennsylvania Rules of Appellate Procedure in his brief.

Father presents the following nine issues for our review:

1. Whether the [ t]rial [ c]ourt committed an error of law and abused its discretion in failing to com ply with the Pennsylvania Rule of Civil Procedure 1915.4 requiring Prom pt Disposition of Custody Cases?
2. Whether the trial court committed an error of law by failing, pursuant to 23 Pa.C.S.A. §5323(d) to consider and delineate the statutorily- mandated " best interests" factors set forth in 23 Pa.C.S.A. § 5328(a)?
3. Whether the trial court erred in ordering A.C.S. to continue therapy with Mrs. Wollman, a practitioner who clearly made abhorrent mistakes in treatment of A.C.S. to Father's detriment, [ who] already was biased against Father and both the Judge and [ c] ourt appointed expert acknowledged she was inappropriate as well as drawing a negative inference from Father's refusal to consent to release of information from Mrs. Wollman?
4. Whether the trial court committed an error of law and abused its discretion in granting Mother legal custody, especially with regard to the parties' son, C.W.S., who has a medical condition where he would need his Father's involvement?
5. Whether the trial court committed an error of law and abused its discretion in separating siblings in the custody schedule contrary to the Recommendation of the [ c] ourt appointed expert?
6. Whether the trial court committed an error of law and abused its discretion in denying Father's request for new psychological evaluations by his own hired evaluator that the [ c] ourt could have more information about this family from a new perspective?
7. Whether the trial court committed an error of law and abused its discretion in failing to consider Mother' parental alienation, and clear evidence of Mother's sabotage of the relationship between Father and the Children in anticipation of the review hearing?
8. Whether the trial court committed an error of law and abused its discretion in staying Father's enhanced time commencing January 2013 and failing to award Father shared custody consistent with the best interests of the children?
9. Whether the trial court erred as a matter of law and abused its discretion by entering a "no contact" Order enforceable by the police as an Interim Order between the second and third days of the review hearings as this perpetuated a highly prejudicial environment to Father and more significantly circumvented his constitutional rights under the PFA statute?

Father's Brief at 14-15.

Initially, we note Mother filed a Motion to Quash the instant appeal, as Father has not substantially complied with Pa.R.A.P. 2111-2132, which govern the contents of briefs to be filed with this Court. Primarily, Mother argues that the Argument Section of Father's Brief contains either no or few citations to legal authorities that support Father's contentions, and Father's references to the record are not clear. This Court may quash or dismiss an appeal if an appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Wilkins v. Marsico, 903 A.2d 1281, 1284 (Pa.Super. 2006). After a review of Father's brief, we find that the alleged errors that Mother lists are not egregious or substantial so as to justify quashing Father's appeal.

Mother also filed an Application to Strike Reply Brief in which she requests we strike Father's Reply Brief. We deny that motion. Therefore, we will proceed to review the appeal.

Next, we observe that, as Mother filed a Motion for Reconsideration of the January 18, 2012 custody order on February 1, 2012, and a custody trial in this matter was held on November 19, 2012, December 5, 2012, March 8, 2013, and March 11, 2013, the Child Custody Act ("Act"), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super. 2012) (holding that, if the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply).

In addition, as with any custody case decided under the Act, 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. This Court has held that "[ a]ll of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order." J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (citation omitted) (emphasis in original). I n an opinion filed on April 22, 2013, C.B. v. J.B., 65 A.3d 946, 955 (Pa.Super. 2013), this Court prospectively held that trial courts must set forth consideration of the section 5328(a) factors "prior to the deadline by which a litigant must file a notice of appeal."

In this case, the trial court's May 23, 2013 opinion does not include a discussion of all of the best interests factors of section 5328(a) in the trial court's May 23, 2013 Opinion. I n the trial court's opinion, the court notes that it set forth its reasoning using the factors of § 5328(a) in its January 2012 order, but regrets not having including a discussion of the § 5328(a) factors in its current order and opinion. Under the Child Custody Act, the trial court must now consider the sixteen best interests factors under § 5328(a) since the court is required to consider them when entering a custody order and prior to the deadline by which a litigant must file a notice of appeal. J.M.R., 33 A.3d at 652; C.B., 65 A.3d at 955.

Therefore, the trial court committed an error of law by failing to expressly consider all of the section 5328(a) best interests factors in either open court or in its opinion entered on May 23, 2013. See J.M.R.; C.B..

As such, we are constrained to remand the matter to the trial court to expressly consider all of the section 5328(a) best interests factors in arriving at its custody decision, and enter a new opinion specifically discussing the sixteen factors. The trial court shall file its opinion within thirty (30) days of the filing of this memorandum. Thereafter, either party may file a new appeal based on the trial court's opinion authored in accordance with section 5328(a).

Order vacated.

Case remanded.

Motion to Quash denied. Motion to Strike denied. Jurisdiction relinquished.

Judgment Entered.


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