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[U] J.J.B. v. B.A.B.

Superior Court of Pennsylvania

March 13, 2014

J.J.B.
v.
B.A.B., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered May 15, 2013, in the Court of Common Pleas of Lebanon County Civil Division at No. 2006-20469

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND PLATT, [*] JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

B.A.B. ("Mother") appeals the order dated and entered on May 15, 2013, that awarded Mother and J.J.B. ("Father") shared legal custody and retained primary physical custody of the parties' male children, Z.B. (age thirteen), C.B. (1) (age eleven), and C.B. (2) (age nine) (collectively, the "Children"), in Mother, with several special provisions.

In its 81-page opinion dated May 15, 2013, the trial court set forth the factual background and procedural history of this appeal. We relate only those facts and procedural findings as are relevant to our decision herein.

The parties have been engaged in a custody dispute since 2006. Mother has a history of abusing prescription drugs. The trial court found that Mother had obtained the services of Dr. Steven Laucks as her primary care physician to manage her health problems, and that all of her medications were prescribed by Dr. Laucks in an effort to combat her addiction. (Trial court opinion, 5/15/13 at 1-6, 34-35.) Father has a history of anger outbursts and domineering behavior toward Mother. (Id. at 1-6.)

In an opinion and order, entered on October 6, 2006, the trial court granted the parties shared legal custody of the Children, and Mother primary physical custody, with Father to have three weekends per month plus one evening of physical custody each week. (See id. at 8.) The October 6, 2006 order included an automatic reduction to alternating weekends if or when Mother obtained full-time employment. (Id. at n.1.) The 2006 custody order also directed a review of the custody dispute to occur in 2007, and provided Father the opportunity to obtain medical records so that he could monitor Mother's use of prescription drugs. (Id. at 8.)

The review of the 2006 custody order occurred in August of 2007, as directed. The trial court explained the subsequent procedural history of the case, and its reasons for its modifications to the 2006 custody order, as follows.

On August 13, 2007, [the trial court] conducted a review hearing. As of the 2007 review hearing, MOTHER was abiding by the medication plan developed by Dr. Lauks [sic] in 2006. She was still taking methadone, but she had avoided continued intake of oxycodone, hydrocodone or other similar prescription opiates. Following the 2007 review hearing, [the trial court] tweaked the 2006 Custody Order to address legitimate concerns of the parties. [The trial court] then affirmed the 2006 Court Order as the final Custody Order of [the trial court].

Trial court opinion, 5/15/13 at 5, 8.

On August 16, 2007, the trial court entered an order dated August 13, 2007, that affirmed and incorporated its October 6, 2006 order and decision, with two exceptions as to paragraph 3. Paragraph 3(1) was altered to reflect that the drop-off time for the Children was to be 6 p.m. instead of 8 p.m. Paragraph 3(2) was altered to reflect that, during the Children's summer vacation months, Mother was given the unilateral right to cancel Father's Wednesday night partial custody period on no more than two occasions.

The trial court explained the subsequent procedural history of the case, which included PFA petitions filed by Mother against Father and contempt petitions filed by Father against Mother, as follows.

Since 2007, the parties were before [the trial court] for two contempt petitions. In [March] of 2009, FATHER filed a contempt action, claiming that MOTHER systematically withheld one of the three weekends of physical custody per month to which he was entitled. In [the trial court's] October 6, 2006 Court Order, [the trial court] stated that if or when MOTHER obtained full-time employment, the weekend custody schedule could be modified to an alternating weekend arrangement. MOTHER notified FATHER in November of 2008 that she was working full time. Between November of 2008 and April of 2009, MOTHER implemented an alternating weekend custody schedule. At a contempt hearing that took place on May 29, 2009, [the trial court] determined that MOTHER was not in fact working on a full-time basis between November of 2008 and April of 2009[, ] and that she had wrongfully withheld partial custody from FATHER. As a result, [the trial court] found MOTHER in contempt.
In November of [2011], another contempt action was filed [by Father]. Once again, MOTHER was accused of withholding physical custody from FATHER to which he was entitled under the Court Order. This time, MOTHER claimed that FATHER's behavior necessitated a cessation of physical custody, especially with the parties' oldest son, [Z.B.]. After listening to testimony, [the trial court] acknowledged that problems existed between [Z.B.] and FATHER[, ] and that FATHER was probably not completely blameless with respect to the etiology of these problems. Nevertheless, [the trial court] concluded that MOTHER had established a culture that promoted estrangement between [Z.B.] and his father. [The trial court] therefore found MOTHER in contempt for a second time. In addition, [the trial court] appointed C. Katherine DeStefano "to provide counseling services to the [B.] family with the goal of reuniting [Z.B.] with his father. . . [.]"
In addition to the above, MOTHER and FATHER have vigorously contested a multitude of other proceedings in Lebanon County that were for the most part ancillary to the issue of custody. Similarly, MOTHER pursued multiple Protection from Abuse (PFA) Petitions against FATHER.

Trial court opinion, 5/15/13 at 8-9.

On December 12, 2012, Father filed a petition for modification of the August 13, 2007 custody order, requesting primary physical custody of the Children. The trial court held evidentiary hearings on the modification petition on March 14, 2013, March 15, 2013, and April 26, 2013. At the hearing on March 14, 2013, Mother and Father testified on their own behalf. Following the hearing on March 14, 2013, the trial court appointed David O'Connell, Ph.D., to perform an independent drug and alcohol evaluation on Mother. (Trial court opinion, 5/15/13 at 39.)

At the hearing on March 15, 2013, Mother's counsel, Attorney Melissa Montgomery, questioned Mother on re-direct examination, and Father's counsel conducted re-cross examination. Mother's counsel then questioned C. Katherine DeStefano, the court-appointed outpatient therapist, as a stipulated expert in child psychology. (Notes of testimony, 3/15/13 at 78-79.) Next, Mother's counsel questioned Timothy Riley, M.D., who began as the primary care physician for Z.B. in August of 2011 and currently is his primary care physician. (Id. at 211-21.) Dr. Riley previously was the primary care physician for C.B. (1) and C.B. (2), between November of 2011 and July of 2012. (Id. at 211.) Mother's counsel then questioned Cheryl Fleming-Hirner, a witness to an incident that involved the family on February 25, 2012, described as the "Manheim incident." (Id. at 248-249.) Next, Mother's counsel questioned A.Y., a friend of Mother. (Id. at 259-260.)

Also on March 15, 2013, Father's counsel questioned Gary Friedman, Ph.D., a stipulated expert in clinical psychology, with expertise in anger management who was referred by Ms. DeStefano to work with Father, and who had been working with Father. (Id. at 180-195.) Father's counsel also questioned L.P., a friend of Father who had known him from Alcoholics Anonymous for almost 20 years. (Id. at 237-238.)

On April 26, 2013, Mother's counsel questioned Dr. David O'Connell, the court-appointed clinical and forensic psychologist who testified as a stipulated expert in addiction. (Notes of testimony, 4/26/13 at 5-6.) Father's counsel then questioned Drew Eisenhauer as a stipulated expert in addiction recovery, who has spent 35 years in continuous addiction recovery. (Id. at 74.) Father's counsel questioned Jeffrey Yocum, D.O., as a stipulated expert witness in addiction medicine. (Id. at 110-111.) He is a diplomat of the American Board of Addiction Medicine, as well as a family practice physician and the physician at White Deer Run detox rehab center, and the medical director at the Methadone Treatment Center both in Lebanon. (Id.)

Mother's counsel then questioned Dr. Laucks, Mother's treating physician. (Id. at 129-130.) Dr. Laucks has a background in anesthesia, addiction medicine, and occupational medicine, and currently focuses on chronic pain problems. (Id. at 129.) He began treating Mother in relation to her pain and pain medications in 2006. (Id. at 129-130.) Also on April 26, 2013, the trial court heard the testimony of the Children, in camera, questioned first by the guardian ad litem, Attorney Wiley Parker, then by Mother's counsel, and finally, by Father's counsel.

On May 15, 2013, the trial court rendered its decision on the record in open court, in a separate transcript, and entered its opinion and order on its docket.

The trial court's May 15, 2013 order included the following provisions:

1. Legal custody of the parties' sons, [Z.B., C.B. (1), and C.B. (2)], is awarded jointly to . . . [FATHER] and . . . [MOTHER]. MOTHER and FATHER must consult with one another regarding all decisions of importance in their children's lives, including but not limited to issues of importance relating to education, spiritual development, health, litigation, counseling and any other matters that transcend routine day-to-day importance. If and only if the parties cannot reach an agreement after consultation regarding an important issue, FATHER shall be granted the ability to render a final and binding decision.
2. Primary physical custody of the parties' children is awarded to MOTHER. FATHER shall enjoy physical custody with the [C]hildren as the parties may agree.
3. Should the parties not be able to reach an agreement regarding physical custody, at a minimum, FATHER shall be entitled to the following rights of physical custody: [schedule and rights omitted]
7. Counselor C. Katherine DeStefano is reappointed to serve as therapist for the [C]hildren. In addition, Ms. DeStefano shall select a counselor for MOTHER in accordance with the recommendation of Dr. David O'Connell and shall advise [the trial court] within thirty days of the name of the individual selected.
11. MOTHER shall obtain all of her prescription medications at the Medicine Shoppe located in Columbia, PA. On a quarterly basis, MOTHER is to obtain and provide to FATHER a computer printout showing all of her prescriptions. MOTHER shall continue to ...

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