E.B. v. D.B.

• Decision Date: 06 May 2019
• Docket Number: No. 1080 WDA 2018,1080 WDA 2018
• Parties: E.B., Appellee v. D.B., Appellant
• Court: Pennsylvania Superior Court

209 A.3d 451

E.B., Appellee

v.D.B., Appellant

No. 1080 WDA 2018

Superior Court of Pennsylvania.

Argued December 5, 2018

Filed May 6, 2019

Robin L. Frank, Pittsburgh, for appellant.

Robert J. Colaizzi, Pittsburgh, for appellee.

BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

D.B. (Father) appeals from the order entered June 25, 2018, in the Court of Common Pleas of Allegheny County, which decreased the number of days Father exercised physical custody of his daughter, K.B. (Child), who was born in October 2002 to Father and E.B. (Mother). Father also challenges the trial court's August 31, 2017 interim order and the court's denial of his motions for special relief in March 1, 2018 and July 2, 2018 orders. Upon review, we affirm the August 31, 2017 order; vacate the March 1, 2018 order summarily refusing to reinstate all prior orders; vacate the June 25, 2018 order in part and affirm in part; vacate the July 2, 2018 order; and remand for proceedings consistent with this opinion.

We summarize the relevant facts and extended procedural history of this case as follows. Mother and Father married in April 2000, and divorced in March 2005. Child was born during the marriage, and Father and Mother have been engaged in continual litigation regarding custody of Child since their separation when she was two years old.

Initially, the parties shared custody pursuant to their 2004 marriage settlement agreement. In May 2005, Mother filed a petition seeking primary custody of Child. In response, Father filed a counter-petition seeking to enforce the shared custody provision in the marriage settlement agreement and to prevent Mother from relocating to Virginia with Child. He also presented a counterclaim for primary custody.

Via a May 23, 2005 order, the trial court prohibited Mother from relocating with Child or exercising custody of Child in Virginia without mutual agreement of the parties or leave of court. While the cross-custody petitions were still pending, Father filed a motion for contempt, averring that Mother took Child to Virginia in violation of the May 23, 2005 order. Following a hearing in August 2005, the trial court found Mother to be in contempt and ordered her to refrain from taking Child outside Allegheny County for more than three overnights during Mother's two-week custody periods without Father's prior written agreement.¹

After multiple delays, the cross-petitions for custody were eventually resolved by a July 3, 2007 consent order. Pursuant to the terms of that consent order, Mother and Father shared legal and physical custody of Child, with each exercising physical custody on a two-week basis. In addition, each parent was permitted one overnight per week during his or her non-custodial period upon request and 24 hours' notice. Further, the custodial parent was required to provide the non-custodial parent with the right of first refusal when the custodial parent was unavailable to care for Child.

In April 2008, Father filed a petition to reinstate his complaint for primary legal and physical custody and for special relief seeking entry of an interim order, citing concerns about Child's encopresis.² On July 24, 2008, the trial court entered an interim order directing the parents' participation in co-parenting counseling and Child's enrollment in kindergarten in Plum School District where both parties resided. Father's petition was resolved by an October 21, 2008 consent order, in which the parties agreed, inter alia , that Father would exercise physical custody for approximately two-thirds of the time during the school year, and the parties would share custody during the summer. This arrangement resulted in Father having custody of Child for 19 days each month during the school year and Mother having custody of Child for the remaining days.

In 2012, disputes arose over legal custody, prompting Father to file a petition to modify the October 21, 2008 order in an attempt to obtain primary legal custody. Following Father's petition, the trial court entered a series of orders addressing disputes over Child's schooling and medical care and continued Father's petition generally.

In 2014, Father filed a motion for special relief requesting permission to change Child's school district in anticipation of purchasing a new house. Mother responded by filing a petition to modify custody, seeking 50/50 physical custody and an order for Child to remain in the Plum School District. Following a hearing regarding school choice, the trial court ordered the parties to continue sharing legal custody, but granted Mother the authority to choose Child's school. Father appealed, and this Court affirmed the trial court's order in 2015. D.B. v. E.B. , 118 A.3d 450 (Pa. Super. 2015) (unpublished memorandum).

Meanwhile, while the school-choice appeal was being resolved by this Court, Father filed a counter-petition to modify physical custody, and requested that the court increase his custodial days because Mother allegedly left Child with other caregivers frequently during her custody period and did not participate in Child's extracurricular activities. Father also filed a petition for contempt regarding a range of issues. These matters were resolved by an October 16, 2014 consent order which, inter alia , specified that: Mother must respond to communications from Father regarding custody issues within 48 hours; the parties may not discuss custody matters with Child or use Child as a messenger; Mother must refrain from using Child's cell phone for her own personal texts; Mother must promptly notify Father of changes in Child's before- or after-school care; and Mother must ensure that Child is prepared for school and extracurricular activities on her custodial days.

In December 2014, Father filed another petition for contempt, resulting in a December 14, 2014 interim order enjoining Mother from changing Child's school, busing, or child care arrangements. Following a hearing, Mother was found in contempt, and the trial court ordered prior orders from July 2, 2007, October 21, 2008, June 3, 2014, and October 16, 2014, to remain in full force and effect. It also required the parties to continue to engage in co-parenting sessions (followed by a joint memorandum of understanding as to what was agreed upon). It permitted Mother to purge her contempt by refraining from using Child as a messenger regarding custody-related matters; discussing custody matters with Child; adhering strictly to the right of first-refusal; following the recommendations of Child's medical providers; timely responding to communications regarding Child; refraining from using Child's cell phone for personal purposes; promptly advising Father of changes to transportation arrangements for Child; ensuring Child was prepared for school and extracurricular activities; exchanging Child's musical instrument during custodial exchanges; and giving Father prior notice before withdrawing Child from after-school activities early.

On March 17, 2015, Mother and Father entered into another consent order, whereby they agreed, inter alia , that all prior orders remained in effect except any provisions that conflicted with the current order; Mother would coordinate Child's practice of her harp at Father's home during her custodial periods; the parties would refrain from using Child's cell phone; and the parties would adhere to a particular transportation schedule for Child's school, after-school care, and extracurricular activities.

On November 16, 2016, the trial court entered an order finding Mother in contempt of the July 2, 2007, October 21, 2008, June 3, 2014, and October 16, 2014 court orders.³ It permitted Mother to purge the contempt by identifying co-habitants and caregivers; communicating with Father regarding Child's transportation arrangements; ceasing all communication with Child regarding custody issues; acknowledging that Father's wife⁴ constituted family within the scope of the right of first-refusal provision; and ceasing to disseminate information regarding Father and his wife to third parties via social media.

On March 2, 2017, Father filed another motion for contempt, averring that Mother refused to provide the telephone number of Child's caregivers, including an individual who provided care for a weekend in Harrisburg; refused to bring Child over to Father's house to practice her harp; obtained a job interview for Child without Father's knowledge or consent; and regularly was not at home when Father dropped Child off at Mother's house.⁵ Following a conciliation on April 13, 2017, the trial court⁶ ordered Mother "to continue to comply with custody order," but did not specify which one, and stated that Father "preserv[ed his] request for counsel fees." Order, 4/13/2017, at 2.

On May 19, 2017, Mother filed the petition for modification of custody that is the subject of this appeal. In the petition, she requested shared physical custody on a 50/50 basis as opposed to Father having physical custody 2/3 of the time, averring simply that she believed it to be in Child's best interest and could easily be achieved because the parties resided close to each other. Petition for Modification of Custody Order, 5/19/2017, at ¶¶ 3-4. Father filed an answer, and the trial court scheduled the case for a judicial conciliation.

The record does not reveal what transpired during the August 31, 2017 judicial conciliation, but subsequently, the trial court entered an interim order of court (Interim Order), wherein it ordered the parties to share legal and physical custody of Child. Interim Order, 8/31/2017, at ¶¶ 1-2. Regarding the latter, the trial court ordered the parties to agree to a schedule, and in the event the parties could not agree, the court imposed a 2-2-3 day schedule.⁷ Id. at ¶ 2. The order also set forth various provisions regarding both legal and physical custody, including a provision requiring each party to give the other parent an opportunity to...