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P.J.P. v. M.M.

Superior Court of Pennsylvania

April 27, 2018

P.J.P. Appellant

          Appeal from the Order Entered September 19, 2017 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 13351 of 2013

          BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT [*] , J.


          MCLAUGHLIN, J.

         P.J.P. ("Father") appeals pro se from the order denying his Petition for Modification of a Custody Order with respect to his minor son, M.P. ("Child"). We conclude that the trial court did not abuse its discretion in awarding primary physical custody to M.M. ("Mother"), and did not err in not considering the factors set forth in Wiseman v. Wall, 718 A.2d 844');">718 A.2d 844 (Pa.Super. 1998), because the Wiseman factors have been superseded by statute. We therefore affirm.

         Father and Mother married in March 2013 and separated in August 2013; Child was born in November 2013. It is not clear from the record if Father and Mother obtained a divorce.[1] They exercise custody of Child pursuant to an April 29, 2016 order, which awarded primary physical custody to Mother and partial physical custody to Father. Pursuant to the order, Father had partial custody on an alternating basis: Every other weekend, from Friday at 6 p.m. until Sunday at 6:00 p.m.; alternating Tuesdays from 8:00 a.m. until Wednesday 6:00 p.m.; and alternating Tuesdays from 8:00 a.m. until Thursday at 8:00 a.m. The court also awarded both parents shared legal custody.

         On January 19, 2017, Father filed a Petition for Modification of a Custody Order, in which he requested shared physical custody of Child. The trial court conducted a two-day custody hearing[2] during which the parties each testified concerning their efforts to promote Child's relationship with the other party. Mother testified that she sends Father numerous pictures and videos of Child when he is in her custody, and encourages Child to call Father on the phone. N.T., 8/29/17-8/30/17, at 247-50, 288. Mother further testified that Father only sent her pictures of Child on "Christmas two years ago" and on the first day of the custody hearing. Id. at 247, 253. Mother testified that she receives no communication from Child when he is in Father's care. Id. at 248, 262. Father testified that Child did not want to call Mother during his periods of custody, and that he did not send pictures of Child because the camera on his phone broke. Id. at 171-72, 185-86.

         The parties also testified as to their cooperation with the other party. Mother testified that Father engages in "mental terrorism" by belittling and insulting her. Id. at 257-58. Mother recalled several instances during which Father belittled her in Child's presence, by yelling at her and telling Child that Mother is "mean." Id. at 254. In addition, Mother testified that Father told her that when Child was older, Father would have Child read the court documents on Google to make sure Child does not make the same mistake Father did by marrying a "toxic" person. Id. at 257. Although Mother admitted to insulting Father, she insisted that she has never done so in front of Child. Id. at 253-54, 266.

         Father admitted that he called Mother "mean" in the presence of Child, but claimed it was because Mother was criticizing his job. Id. at 175-76. He further testified that he felt like he was being attacked when he spoke with Mother. Id. at 175. Father testified that he mentioned Google Scholar because he was concerned Child would be able to see the court documents when he is older. Id. at 198. Father wanted to remind Mother that everything is available on the Internet and to suggest that it would be better if they settled their differences. Id.

         Mother also testified that she purchased gifts for Father from Child for Father's birthday, Father's Day, and Christmas. Id. at 250. Further, Mother purchased tickets for a Monster Truck show for Father and Child, which was during Mother's period of custody and Mother has invited Father to the park during her period of custody. Id. at 158-59, 249-50. Father testified that he had Child make Mother a necklace and a little handprint. Id. at 174.

         The parties also testified about getting Child ready for preschool after returning from Father's custody. Mother stated that Father used to prepare Child for preschool, so that Mother could drop him off at school. Id. at 242-244. In approximately March 2017, Father refused to get Child ready. Instead, he would drop Child off at Mother's house while Child was in his pajamas. Id. Mother would not have sufficient time to prepare, and, therefore, Child would get to school late. Id. Father testified that this was because Mother had "unilaterally" changed the procedure for exchanging custody from one where Mother would pick up Child at Father's house, to one where Father would drop off Child. Id. at 144. According to Father, Mother texted Father one day two hours before the scheduled exchange that she was unable to pick up Child that day. Id. Father testified that she also said she wanted him to have Child ready for school when he returned Child to Mother's house. Id. at 145.

         The parties both also testified about their experiences with co-parenting counseling. Mother testified that she attempted to improve her relationship with Father by suggesting that they attend co-parenting counseling. Id. at 245. Although Father attended the counseling, Mother said he refused to participate meaningfully.

[Father] said I don't know why we're here. I'm filing for 50/50 custody next week and we'll continue to parallel parent. And then he checked his phone the whole time we were there as the counselor was talking to us about our issues and trying to get us set up with a counselor to move us forward.

Id. at 246. Mother testified that after several unproductive sessions, the counselor said they were "not going anywhere with this" and they were "too high conflict." Id. In contrast to Mother's testimony, Father testified that they attended two or three sessions and that he wanted to continue the sessions. Id. at 168-70.

         The parties also offered testimony about Child's interactions with his extended family. Paternal Grandparents live in Virginia and visit with Father once per month. Id. at 80-81, 87. Child has visited Paternal Grandparents' home twice since birth. Id. at 110. In contrast, Mother's sister and Maternal Grandparents live within a few blocks of Mother. Child spends time with his maternal cousins on a weekly basis, and spends holidays, birthday parties, and vacations with his cousins. Id. at 206-207.

         On September 19, 2017, the trial court denied Father's Petition for Modification. Father filed a pro se Motion for Reconsideration of Order on October 12, 2017, which the court denied that same day. Father filed a timely pro se Notice of Appeal on October 12, 2017.

         Father now raises the following issues for our review.

1) Should this Honorable Court overturn the Trial Court's Custody Decision and grant [Father's] petition to modify the custody agreement based on the following factors:
1. The Trial Court showed a bias toward a "preferred parent" when reaching a decision in this case.
2. The Trial Court reached unreasonable conclusions and misapplied the law when determining that Custody Factors 1, 5, 8, and 13 defined in PA 23 § 5328 were in favor of Mother.
3. The Trial Court based its decision on factors that had little or nothing to do with the best ...

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