Mimm v. Mimm

1

MEGAN MIMM v. STEVEN MIMM Appellant

No. 1174 MDA 2022

No. J-S44025-22

Superior Court of Pennsylvania

March 13, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered August 15, 2022 In the Court of Common Pleas of Dauphin County Civil Division at No(s) 2021-CV-02142-CU

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

McLAUGHLIN, J.

Steven Mimm ("Father") appeals from the order granting primary physical custody of R.M. and E.M. (collectively "Children") to Megan Mimm ("Mother") and denying his petition for relocation and his petitions for contempt. Father also claims that the court erred in denying his motion for recusal and his requests to have Children evaluated by a professionally licensed psychologist and for a competency hearing for Children and that the court violated his due process rights. We affirm.

The trial court provided a detailed factual and procedural history, which we incorporate herein. Trial Court Opinion filed Aug. 15, 2022, at 1-14 ("Custody Opinion"). We provide a summary of relevant procedural history.

Prior to February 2021, both parties resided in, and Children attended school in, Central Dauphin School District. In February 2021, Father relocated to Hershey, Pennsylvania, in Derry Township School District. In March 2021, Mother filed a Complaint in Custody. In May 2021, the court entered a custody order wherein the parties shared legal and physical custody on a 2-2-3 schedule. In July 2021, Father filed a petition for modification of custody. In August 2021, Mother filed an emergency petition for special relief and contempt in custody, alleging Father had enrolled Children in the Derry Township School District without her consent. The court granted the petition and ordered that Children be unenrolled from Derry Township School District and re-enrolled in Central Dauphin School District.

Father filed a petition for contempt, arguing Mother enrolled Children in a childcare program without his consent and "threatened to remove" and "attempted to remove" one of the children from a wrestling program. Petition for Contempt, filed Oct. 5, 2021, at ¶¶ 5-10. He filed a second petition for contempt arguing Mother had continued to enroll Children with a childcare provider, Amazing Sports, without his consent; ordered glasses for E.M. without Father's consent; enrolled R.M. in an after-school group instruction program without his consent; and failed to inform Father of E.M.'s disciplinary record. Second Petition for Contempt, filed Jan. 14, 2022, at ¶¶13-54.

In April 2022, the court held two days of hearings, where Father testified, Children testified in camera, and Mother completed her direct testimony and part of her cross-examination.^[1] The court scheduled a third hearing day for July 20, 2022. Father was counseled at the April hearings, but in May 2022 his counsel withdrew and he entered his appearance pro se.^[2]

In May 2022, Father filed a petition for relocation following his move to Willow Grove, Pennsylvania in the Abington School District and moved for an expedited hearing. After phone conferences, the court issued an interim order where the parties shared physical custody of Children on a week on/week off basis, with custody exchanges occurring on Friday at 5:00 p.m. at a police station in Dauphin County. Father was to be responsible for the majority of transportation for all custody exchanges. Father filed a motion for reconsideration requesting a change in the time and location for custody exchanges.^[3] The court granted the motion in part and ordered that the exchanges occur on Sunday at 5:00 p.m. It denied the request to change the location of the exchanges.

In June 2022, Father filed a motion for an evidentiary hearing outlining the case's procedural history and seeking an evidentiary hearing within the next five days. He argued that he "intend[ed] to introduce, among other things, emails and other records from Central Dauphin School District."

Defendant's Motion for an Evidentiary Hearing, filed June 9, 2022, at ¶ 27. He maintained any question of admissibility should be determined pretrial. Id. at ¶ 31. In the middle of the 209-paragraph motion, Father also stated that Mother's allegedly false claims of abuse she made to Children "call to the issue of whether [C]hildren are competent as witnesses, and this matter was not decided [p]re-[t]rial." Id. at ¶ 67a. The trial court denied the motion, stating that "it is unclear what exactly [Father] is requesting in [the] Motion." The court explained that an evidentiary hearing in the matter "ha[d] already been scheduled for July 20, 2022," and the motion did "not raise any exigent circumstances that would require [the court] to hold a hearing any sooner." Amended Interim Order, filed June 13, 2022.

Father then filed a motion for recusal arguing the Honorable Andrew H. Dowling (the "trial judge") could not be fair and impartial. Father maintained that in 2012, when Father was a criminal defense attorney, he had represented the trial judge's former wife at two dockets, which resulted in guilty pleas. Motion for Recusal, filed June 14, 2022, at ¶ 4. He claimed the relationship was having an impact on the current custody matter. Id. Father stated that he did not disclose the relationship sooner because he believed that "if [it] was an issue, the [trial judge] would have disclosed the prior representation" and he "believed it was in the interest of [the trial judge's former wife] to not be disclosed publicly." Id. at ¶¶ 5-6. He claimed the prior representation resulted in sided rulings, including a biased "preliminary determination" that was done off the record, a "punitive sanction . . . based on [Father's] relocation," the denial of requests for an evidentiary hearing and for a conference to determine Children's competency. Id. at ¶¶ 7a-7d. He further noted the length of time between the filing of his motion for modification and contempt petitions and the issuance of the court's decision. Id. at ¶ 7e.

The trial court denied the motion to recuse. It pointed out that the case was assigned to the trial judge in December 2021, and it scheduled a pre-trial conference for January 27, 2022, which was rescheduled to February by request of the parties. Following the conference, the court scheduled the trial for April 20, 2022. It stated that "[b]oth prior to and during trial, counsel for [Mother] and [Father] repeatedly asked the [trial judge] if he would provide his impressions of the case up to that point after hearing testimony from both [Mother] and [Father]." Order, June 16, 2022. The trial judge "assumed that the parties wanted to utilize [his] impressions to facilitate a settlement between the parties." Id. Following the second day of trial, the trial judge "presented his impressions of how he would rule based on the testimony and evidence that had been presented up to that point," but "made clear that there was still evidence to be heard, and [the trial judge's] impressions could change." Id. The case did not settle and, based on the court's and the parties' schedules, a third date was set for July 20, 2022. The court also discussed the ruling addressing the proposed relocation, noting it held three conference calls to discuss the relocation and entered an interim order to address custody issues, including a custody schedule and summer activities. The court stated that because Father had not obtained court approval prior to his move, it required Father to provide the majority of transportation for the exchanges. It pointed out that the parties remained with a 50/50 custody schedule and the court granted Father's motion for reconsideration in part and changed the custody exchanges to Sunday to accommodate Father's schedule. The court concluded that "the circumstances mentioned [in the motion for recusal] would not constitute circumstances under which the [trial judge's] impartiality might reasonably be questioned." Id.

In June 2022, Father also filed a motion for a telephonic conference where he requested a conference to discuss myriad evidentiary issues, including that the "record is totally devoid as to any discussion of the two minor children['s] competency to testify as witnesses, as they were directed to make false abuse claims by [Mother] against [Father]," and claimed that if Children were incompetent to testify, the finding should be made on the record. Defendant's Motion for Telephonic Conference, filed June 30, 2022, at ¶¶ 4g, i. The court held a telephonic conference, and it is unclear from the record whether the competency of Children was discussed.

In July 2022, the court held the final day of the hearing, with Father representing himself pro se. Father completed the cross-examination of Mother. Father's domestic partner Kathleen Shea also testified and Father testified again. Children did not testify. When the court asked whether Father agreed with Mother that Children should attend counseling, Father stated, "I believe that in order to determine their counseling need they should be evaluated by a doctor of psychology who's - there's an individual who specializes in this, Kasey Shienvold. And we should have the kids properly evaluated prior to the Court rendering the final opinion on this issue." N.T., July 20, 2022, at 240, 246. He stated Children "have been through a trauma" and "have been forced to deal with" Children and Youth Services, which has affected their personalities. Id. at 247. He stated that Mother requested counseling and "what is counseling for if" there is not "mental health stuff going on." Id. He claimed Dr. Shienvold's reports are completed in about six weeks. Id.

Mother's counsel argued...