C.H.L. v. W.D.L.

214 A.3d 1272

C.H.L.

v.W.D.L., Appellant.

No. 2617 EDA 2018

Superior Court of Pennsylvania.

Argued April 9, 2019

Filed July 08, 2019

Megan Michael, Allentown, for appellant.

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI,^* J.

OPINION BY KUNSELMAN, J.:

W.D.L. (Husband) appeals from an order issued pursuant to the Protection From Abuse (PFA) Act, 23 Pa.C.S.A. §§ 6101 - 6122. The PFA order provided C.H.L. (Wife), inter alia , exclusive possession of the marital residence and awarded her temporary sole custody of the parties' four-year-old daughter; the child was not named as a protected party in the order. After careful review, we affirm.

In a meticulous, 42-page Rule 1925(a) opinion, the trial court detailed the "very calculated, complex, web of domestic violence, control and intimidation by Husband against Wife." See T.C.O., 11/16/18, at 1. Those facts, crucial to our understanding the court's decision, are ultimately not essential to the disposition of Husband's appeal. Briefly, the overture is this:

The parties wed after just three weeks of dating when Husband was 46 and Wife was 20. Their five-year marriage produced a four-year-old daughter and extensive litigation, replete with protective orders, contempt violations and criminal charges. Not until the instant PFA hearing, however, did the court recognize Husband's "manipulation of all facets of the criminal justice and court system in order to achieve power and control over Wife." See id. at 30. The court stated that Husband "was playing the system like a Stradivarius." See N.T., 7/30/18, at 42. Although Husband tried to persuade the court that Wife suffered from various mental illnesses, the court ultimately concluded that Wife's erratic behavior was attributable to years of domestic violence.

At the PFA hearing, Wife testified to Husband's extensive abuse and produced photographic evidence of the same. The court further determined that Husband used custody of the parties' child as a "weapon against Wife." See T.C.O. at 41. The court issued a two-year PFA order, which included provisions awarding Wife exclusive possession of the marital residence and temporary sole custody of the child pending a custody conference scheduled for seven weeks later.

Husband filed this timely appeal and presents five issues for our review:

1. Did the trial court err and/or abuse its discretion in granting Wife's protection from abuse petition when the award was against the weight of the evidence presented and against the credibility of Wife based on evidence during the hearing?

2. Did the trial court err and/or abuse its discretion in not allowing Husband to present certain evidence which would have shown that Husband was not abusive toward Wife and would have shown the nature of the parties' relationship, such as text messages and letters?

3. Did the trial court err and/or abuse its discretion in not allowing Husband to present evidence which showed he had the right to occupy the subject property pursuant to a divorce settlement agreement, and where Husband had not welcomed Wife to the subject property and asked Wife to leave the subject property?

4. Did the trial court err and/or abuse its discretion in evicting Wife from the subject property when the parties had executed a divorce settlement agreement, which stated appellant would have exclusive possession of the subject property?

5. Did the trial court err and/or abuse its discretion in awarding temporary primary custody to Wife when Wife testified Husband had not physically harmed the child nor threatened the child, and Wife testified that Husband was a good father, and was precluded from presenting the current custody order where he had sole physical custody?

See Husband's Brief at 9-10.

Our standard of review for PFA orders is well-settled. In the context of a PFA order, we review the trial court's legal conclusions for an error of law or abuse of discretion. Boykai v. Young , 83 A.3d 1043, 1045 (Pa. Super. 2014) (citations omitted).

Husband's first claim seemingly challenges the weight of the evidence presented at the PFA hearing. Throughout his brief, however, Husband conflates the weight of evidence with the sufficiency of evidence. See Husband's Brief at 42. The combination of Husband's departure from the actual issue presented, and the fact that he cites no relevant authority makes it difficult to discern the substantive nature of his claim.

Whatever its foundation, we conclude Husband's first issue is waived. It is well-established that the failure to develop an argument with citation to, and analysis of, pertinent authority results in waiver of that issue on appeal. See Pa.R.A.P. 2119(b) ; Eichman v. McKeon , 824 A.2d 305, 319 (Pa. Super. 2003). Here, Husband cites no relevant legal authority to discuss either the weight or the sufficiency of the evidence; one cited case addresses a court's appearance of impropriety and the other is a decades-old precedent concerning the absence of due process at a zoning hearing. See Husband's Brief at 30. Husband merely attempts to re-litigate the facts and the PFA court's credibility findings. See Husband's Brief at 30-42.

To that end, we observe that the credibility of witnesses and the weight to be accorded to their testimony is within the exclusive province of the trial court as the fact finder. See Mescanti v. Mescanti , 956 A.2d 1017, 1020 (Pa. Super. 2008). In reviewing the validity of a PFA order, this Court must view the evidence in the light most favorable to petitioner and granting her the benefit of all reasonable inferences. See S.W. v. S.F. , 196 A.3d 224, 228 (Pa. Super. 2018) (citation omitted). And we must defer to the lower court's determination of the credibility of witnesses at the hearing. Id. Thus, even if Husband had preserved his first issue, we would still find his claim to be meritless.

Turning to his second claim, Husband argues that the PFA court erroneously prevented him from presenting relevant evidence, such as text messages and letters. Again, our review is hindered by deficiencies in Husband's brief.

This portion of Husband's argument section is a mere 200 words.¹ See Husband's Brief at 43-44. Although he cites legal precedent, a rule of evidence, and the transcript, he does not actually identify the evidence he sought to introduce, nor the court's alleged exclusion of the evidence, nor his objection to the court's ruling. Id . An exchange during his direct examination is the only identified portion of the record where Husband claims the court erroneously limited the admission of his evidence:

ATTORNEY: So [Wife] is [at the marital residence] as of now?

HUSBAND: She is not. She left on the 21st of this month after being requested to, after about two months' worth of requests --

THE COURT: Alright, I'm going to stop you there, [Husband], so you're just going to answer the question and not editorialize, otherwise we're never going to get through this.

N.T., 7/30/18, at 3-4.

Notably, neither Husband nor his attorney took issue with the trial court's procedure:

ATTORNEY: Fair enough.

HUSBAND: Yes, ma'am.

Id. at 4.

Compounding our confusion, we note that the trial court explained that the only evidentiary rulings it made were actually in Husband's favor:

At no time during the final PFA hearing did Wife raise an objection to any evidence presented by Husband during his case in chief. Nor did the Court sustain any objection or preclude Husband from presenting evidence of any kind. In fact, the only objections raised during the proceeding were by Husband's counsel seeking to preclude evidence or testimony Wife sought to admit, which [the court] sustained.

See Trial Court Opinion, 11/16/18 at 36-37.

For several reasons, we must again find waiver. For one thing, issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). If Husband had other contentions during the hearing, he did not properly raise them. In terms of his appellate brief, we observe that "[i]f reference is made to pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears." Pa.R.A.P. 2119(c). If Husband had other contentions he meant to address in his brief, he did not properly reference them.

It is not the duty of this Court to act as appellant's counsel, and we decline to do so. See Hayward v. Hayward , 868 A.2d 554, 558 (Pa. Super. 2005). "We shall not develop an argument for an appellant, nor shall we scour the record to find evidence to support an argument; instead, we will deem the issue to be waived." Commonwealth v. Cannavo , 199 A.3d 1282, 1289 (Pa. Super. 2018) (citations omitted). When an allegation is unsupported by any citation to the record, such that this Court is prevented from assessing the issue and determining whether error exists, the allegation is waived for purposes of appeal. Commonwealth v. Williams , 176 A.3d 298, 306 (Pa. Super. 2017) (citations omitted). This Court cannot conduct a meaningful review if it has to guess what issues an appellant is appealing. See Jones v. Jones , 878 A.2d 86, 89 (Pa. Super. 2005) (finding waiver when this Court could not discern appellant's issues on appeal) (citation omitted). We conclude that Husband's second issue is also waived.

We discuss Husband's third and fourth issues contemporaneously, as both concern the court's award of exclusive possession of the marital residence to Wife. First, Husband contends that Wife was not entitled to receive exclusive possession of the marital residence, because Wife had previously executed a marriage settlement agreement wherein she had granted possession to Husband.² Second, Husband contends that Wife was not entitled to this relief, because she did not explicitly request it in her PFA petition.

Husband argues that the court did not allow him to present the...