Luminella v. Marcocci

814 A.2d 711

2002 PA Super 410

John A. LUMINELLA, Appellee, v. Debra MARCOCCI, Appellant.

Superior Court of Pennsylvania.

Submitted October 9, 2002.

Filed December 23, 2002.

William J. Gallagher, West Chester, for appellant.

Thomas J. Wagner, West Chester, for appellee.

Before: HUDOCK, FORD ELLIOTT, and OLSZEWSKI, JJ.

OLSZEWSKI, J.

¶ 1 Appellant, Debra Marcocci ("mother"), appeals from the custody order of March 28, 2002, and the contempt order of March 20, 2002, entered by the court below. Mother argues four issues on appeal.

¶ 2 Two of mother's arguments attack the sufficiency of the factual analysis of the court below. Mother argues that the trial court erred by: inadequately addressing appellee John Luminella's ("father") treatment of the children, and by concluding that it is in the children's best interest to have unsupervised visits with their father. Contrary to mother's contentions, we find the trial court's findings to be both supported by the record and, as analyzed in the trial court opinion, within its discretion.

¶ 3 Mother's third argument is that the trial court erred by finding her in contempt of its April 8, 1998, order. We find that the trial court did not err in finding mother in contempt, or in the substance of the remedy it imposed for the contempt.

¶ 4 Finally, mother argues that the trial court's order that she undergo drug testing violates the fourth amendment of the United States Constitution. We find that, if the fourth amendment applies to the order, it passes constitutional muster.

¶ 5 Father argues that mother's appeal is frivolous, and urges this Court to award him attorney's fees pursuant to Pa.R.A.P 2744. In light of our discussion of mother's fourth amendment claim, we do not find mother's appeal frivolous or taken solely for delay. Father's request for attorney's fees is denied.

¶ 6 The trial court opinion's Statement of Procedural History provides the foundation upon which we analyze mother's arguments on appeal:

The parties are the parents of three girls: Angela Luminella, D.O.B. 8/22/85; Alexis Luminella, D.O.B. 12/3/87; and Monica Luminella, D.O.B. 12/13/88. The parties did not marry and the children became the subjects of this custody action on December 20, 1989 when Father filed the custody complaint. Since that time the parties have been embroiled in a bitter custody battle with each party, at times, accusing the other of abusing the children. On April 8, 1998, pursuant to an agreement of the parties, the Honorable Michael J. Melody entered a Custody Order which was in effect at the time of [the trial court's] hearing. The terms of a previous order dated March 10, 1997 were to remain in effect; Father and Angela were to begin counseling and visitation, Angela was to begin counseling, and the parties were to be evaluated by Linda Shope Ph.D. Accordingly at the time of our hearing, in the relevant Custody Order, Mother and Father shared legal custody of Angela, Alexis, and Monica. Mother and Father shared physical custody of Alexis and Monica, with the girls living one week at Mother's home, then one week at Father's home. Father had one two-hour visitation with Angela each Saturday, with further visitations subject to Angela's discretion.

On January 10, 2002 Father filed a Petition for Civil Contempt asserting that Mother had failed to comply with the Custody Order. Father averred that as of August 2001, Mother had denied Father his custodial time with Alexis and Monica, that she had denied him all telephone contact with the children, that she had not permitted the children to attend therapy, that she had changed the children's address at school, and that she was discouraging the children from having a relationship with Father.

On January 18, 2002 Mother filed a Petition to Modify Custody in which she sought sole custody of Alexis and Monica. She averred that Alexis (now 14) and Monica (now 13) refused to see their Father because on occasion, he had broken their possessions, had used obscenities in their presence, had failed to feed them properly, and he engaged in the practice of "witchcraft".

On February 22, 2002 the parties appeared before a Custody Conciliator who issued a Custody Order on March 6, 2002. The Order recommended that legal custody be shared and that Mother should have primary custody. Father was awarded custody every other weekend to commence after counseling and a recommendation from the counselor. If the children's current counselor could not provide reunification counseling, Father was to find a counselor who could perform the same. Father filed an objection to the Custody Conciliator's recommendation and the case was certified to proceed to a hearing.

Trial Court Opinion, 5/30/02, at 1-3 (footnotes omitted).

¶ 7 Following father's filing of the petition for civil contempt, and a hearing on the matter, the trial court filed a March 20, 2002, order finding mother in contempt of the trial court's order of April 8, 1998. Also, after a March 2002 custody hearing, the trial court entered a temporary custody order on March 28.

¶ 8 Mother's petitions to stay and petitions to reconsider both the March 20, 2002, order and the temporary custody order of March 28 were denied by the trial court. Mother now appeals.

1.

¶ 9 Much of mother's argument in this appeal consists of a re-presentation of facts that mother presented below. Mother addresses this Court's attention to "voluminous testimony about Father's abusive conduct toward his children, use of drugs in front of his children and practice of witchcraft." Brief of Appellant at 23. These salient facts are, according to mother, "barely discussed by the Trial Court in its Opinion." Id. Such a failure of comprehensive analysis, continues mother's argument, constitutes reversible error.

¶ 10 It is entirely correct for mother to make much of the responsibility of the trial court to develop the record and write a complete opinion. As mother argues:

"In a custody matter, the trial court must file a comprehensive opinion containing its findings and conclusions regarding all pertinent facts." Alfred v. Braxton, 442 Pa.Super. 381, 659 A.2d 1040, 1042 (1995). The trial court's opinion should also contain an exhaustive analysis of the record and its specific reasons for its ultimate decision. Id.

Brief of Appellant at 27 (quotation marks added and form of citation modified).

¶ 11 Our disagreement with mother's argument arises not with her assertion that a trial court bears a heavy burden to develop the record in a child custody hearing, but in how she would have us apply that maxim to the case at hand. We are not persuaded that "the Trial Court's Opinion, although 25 pages in length, does not provide this Court with an exhaustive analysis of the record and the specific reasons for its ultimate decision that Father should be entitled to unsupervised visitation of his children." Brief of Appellant at 27. On the contrary, we find the trial court's opinion sufficient in both its analysis of the record and explanations of its conclusions.

a.

¶ 12 Mother argues that the trial court inadequately addressed father's treatment of the children. Specifically, mother argues that the trial court's opinion evidences inadequate consideration of the evidence she presented below concerning her allegations of: father's verbal and physical abuse of the children, father's use of marijuana in front of the children, father's practice of witchcraft, and the children's dislike of father. Certainly, mother is correct that a legally sufficient child custody opinion must articulate thorough consideration of such evidence. We find that the trial court opinion does articulate consideration of this evidence, though not with the outcome that mother intended. Simply put: The trial court, balancing mother's evidence against father's, was not persuaded to mother's position. Because the trial court conducted its evidence-balancing test from a vantage point of being able to gauge the credibility of witnesses and assign weight to evidence as it was presented, its opinion is entitled to a measure of deference. S.H. v. B.L.H., 392 Pa.Super. 137, 572 A.2d 730 (1990).

¶ 13 "The scope of review of an appellate court reviewing a child custody order is of the broadest type; 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." Watters v. Watters, 757 A.2d 966, 967 (Pa.Super.2000). "However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination." Id. "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." Id.

i.

¶ 14 Reviewing the record and the opinion of the trial court we find that the court did sufficiently address father's treatment of the children. The trial court opinion is replete with analysis of allegations that father abused the children.

¶ 15 During examination of the children, the trial court uncovered only one incident "in which Father had grabbed Monica by the arm." Trial Court Opinion, 5/30/02, at 19. Continuing, the court found that "when the children were pressed for further examples of Father's outbursts, neither child could recall any other incidents with specificity." Id. Moreover, "Angela denied that father had ever hit her," Id., and "Monica reported that Father was `nice most of the time.'" Id. "Alexis and Monica both stated that Father was prone to outbursts, yet both children also testified about Father's positive attributes." Trial Court Opinion, 5/30/02, at 22.

¶ 16 The court also had testimony from witnesses other...