A. L.-S. v. Southern

A. L.-S., Appellant v. B. S., Appellee

J-A29041-16

No. 532 WDA 2016

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 13, 2017

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order entered March 10, 2016 in the Court of Common Pleas of Lawrence County, Family Court Division, No(s): Case No. 10487 of 2014, C.A.

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:

A.L.-S. ("Mother") appeals from the Order (hereinafter "the Custody Order") that awarded B.S. ("Father") sole legal custody of the parties' two minor sons, W.S. ("W.") and C.S. ("C.") (collectively "the Children"), awarded Father primary physical custody of C., and granted the parties shared physical custody of W. We affirm.

The trial court thoroughly set forth, in its Memorandum accompanying the Custody Order (hereinafter "Custody Order Memorandum"), the factual and procedural history underlying this appeal, which we adopt as though fully set forth herein. See Custody Order Memorandum, 3/23/16, at 1-14.¹

Following the protracted custody trial, and upon consideration of the parties' respective Petitions for modification of custody, the trial court entered the Custody Order on March 10, 2016. Mother timely filed a Notice of Appeal, along with a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal. Subsequently, Father filed with this Court a Motion to Dismiss the appeal, asserting that Mother had committed several violations of the Rules of Appellate Procedure.

Mother presents the following issues for our review:

I. Whether the trial court abused its discretion and committed reversible error by awarding [Father] primary physical custody of ...C.[], as the evidence demonstrates the best interest and permanent welfare of ... C.[] would be served by awarding [Mother] primary physical custody[,] subject to the partial custody rights of [Father]?

II. Whether the trial court abused its discretion and committed reversible error by awarding [Father] sole legal custody of ... [the Children], as the evidence demonstrates the best interest and permanent welfare of the [] [C]hildren would be served by awarding [Mother] sole legal custody of the [C]hildren, or at least shared legal custody?

III. [Whether the] trial court [committed] reversible error by issuing an [O]rder that divides the [C]hildren and causes substantial time apart[,] as there was no evidence of record supporting that such an arrangement was in the best interest and permanent welfare of the [C]hildren?

IV. Whether the trial court abused its discretion and committed reversible error by denying [Mother's] Motion for Psychological [Exam,] while authorizing [Father] to present testimony from Dr. Jennifer Rosenberg ["Dr. Rosenberg"] regarding a mental health evaluation she performed on [Mother] several years prior to the trial?

V. Whether the trial court committed reversible error by refusing to access the Our Family Wizard website, a court[-]ordered communication medium, and perform a complete review of the communications between the parties?

VI. Whether the trial court committed reversible error by improperly relied [sic] on hearsay information contained within medical reports?

VII. Whether the trial court abused its discretion and committed reversible error by relying on inadmissible evidence when it declared [that Mother] has a proclivity for making regular unfounded referrals to Children and Youth Services ["CYS,"] when it had already ruled that the disclosure of the reporting party was prohibited by statute[?]

VIII. Whether the trial court committed reversible error by relying upon the Report and Recommendations of the Guardian Ad Litem[,] as the Guardian Ad Litem failed to conduct a full and thorough investigation to fully and adequately address the needs and best interest of the [C]hildren[,] and the Report and Recommendations contains recommendations from the Guardian Ad Litem on subjects which he is unqualified and inexperienced to make and, further, he failed to employ or secure the services of a qualified expert to address the issues at hand?

Brief for Appellant at 5-6 (issues renumbered for ease of disposition).

As a prefatory matter, we must address Father's Motion to Dismiss. Father asks us to quash Mother's appeal, urging that "the sheer volume and combined nature of Mother's violations [of the Rules of Appellate Procedure] make effective appellate review impossible." Motion to Dismiss, 7/5/16, at ¶ 8. Specifically, Father complains that Mother has not filed a designation of contents of the reproduced record, in violation of Pa.R.A.P. 2154(c)(1). Father contends that the lack of a designation of reproduced record prejudiced him by denying him the opportunity to designate additional parts of the record not designated by Mother. Motion to Dismiss, 7/5/16, at ¶ 14.Father also complains that Mother's reproduced record omits numerous relevant record documents/information, including docket entries, portions of the trial transcript, and pertinent trial exhibits that Mother references in her brief. Id. at ¶¶ 20-36. Finally, Father points out that Mother's reproduced record lacks pagination and a table of contents. Id. at ¶¶ 37-41; see also Pa.R.A.P. 2173, 2174.

Contrary to Father's assertion, we determine that Mother's infractions of the Rules of Appellate Procedure are comparatively minor, and do not unduly prejudice Father or impede our review of the issues presented on appeal. Our Pennsylvania Supreme Court has stated that the "extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the moving party has suffered no prejudice." Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980). Accordingly, we decline to dismiss the appeal, and deny Father's Motion to Dismiss. See, e.g., Hagel v. United Lawn Mower Sales & Serv., 653 A.2d 17, 19 (Pa. Super. 1995) (declining to quash the appeal, or impose other sanctions, where the appellant failed to designate or file a reproduced record, but the violations of the Rules of Appellate Procedure were not so serious as to preclude the Court's ability to properly evaluate and address the substantive arguments advanced by the parties); Downey v. Downey, 582 A.2d 674, 678 (Pa. Super. 1990) (declining to dismiss the appeal because of appellant's failure to serve the appellees with a copy of thedesignated reproduced record, and noting that "Pa.R.A.P. 2156 expressly permits an appellee to file his own supplemental reproduced record with the court when the parties are unable to cooperate on the preparation of the reproduced record.").

This Court's standard and scope of review of custody orders is as follows:

The appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and brackets omitted). Additionally, we have explained that

[o]n issues of credibility and weight of the evidence, we defer to the findings of the trial court[,] who has had the opportunity to observe the proceedings and demeanor of the witnesses. The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion. The test is whether the evidence of record supports the trial court's conclusions.

Id. (citations, paragraph breaks and brackets omitted); see also Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (stating that "[t]he discretion that a trial court employs in custody matters should be accordedthe utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.") (citation omitted).

When a trial court orders a form of custody, the paramount consideration is the best interest of the child. W.C.F. v. M.G., 115 A.3d 323, 326 (Pa. Super. 2015). In assessing the child's best interest, the trial court must consider the seventeen custody factors set forth in 23 Pa.C.S.A. § 5328(a) (hereinafter "the best interest factors"). W.C.F., 115 A.3d at 326; see also J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating that all of the best interest factors must be considered by the trial court when entering a custody order).

We will address Mother's first two issues simultaneously, as they are related. In her first issue, Mother argues that the trial court abused its discretion by awarding Father primary physical custody of C. See Brief for Appellant at 17-33.² Essentially, Mother challenges the trial court's findings and weighing of the evidence in several regards, and asserts that the court, in its Custody Order Memorandum, mischaracterized the evidence and disregarded relevant evidence favorable to Mother. See id. Mother places heavy emphasis on the trial court's having purportedly ignored Father'sinadequate and infrequent communication with Mother on important matters (concerning the Children's education, doctors' appointments, and...