J.F.D. v. M.A.D., 1852 EDA 2021

CourtSuperior Court of Pennsylvania
Writing for the CourtPER CURIAM
PartiesJ.F.D. Appellant v. M.A.D. Appellee
Docket Number1852 EDA 2021,J-A13039-22
Decision Date16 September 2022

J.F.D. Appellant
v.

M.A.D. Appellee

No. 1852 EDA 2021

No. J-A13039-22

Superior Court of Pennsylvania

September 16, 2022


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered August 10, 2021 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2007-26322

MEMORANDUM

PER CURIAM

Appellant, J.F.D. ("Father"), appeals pro se from the order entered in the Montgomery County Court of Common Pleas, which modified the custody agreement between Father and Appellee, M.A.D. ("Mother"), as it relates to their minor children, B.D. and P.D. ("Children"). We affirm.

In its opinion, the trial court set forth the relevant facts and procedural history of this case as follows:

[Father and Mother] have two daughters born during their marriage: [B.D., born in 2006, and P.D., born in 2008] (collectively referred to as "minor children"). The parties were married on December 30, 2005, separated on March 20, 2012 and officially divorced on September 13, 2018
The parties have been embroiled in litigation for over a decade, covering most of the minor children's entire lives. The parties are routinely heard on numerous pleadings including, but not limited to, Petitions to Modify, Petitions for Contempt, Emergency Petitions and Petitions for Protection from Abuse
It is worth noting that the instant matter tracks closely with
1
the protracted custody proceedings conducted before the [trial court] in 2017. At that time, on August 31, 2017, the [c]ourt issued comprehensive Findings of Fact consisting of twenty-two (22) pages with an accompanying Order of seventeen (17) Pages
The 2017 Order represented a significant change from the joint legal and the 50/50 physical custody schedule the parties had been observing pursuant to a 2013 Order and highlighted significant concerns with regard to Father's behavior. The aforementioned 2017 Order provided Mother with sole legal custody and primary physical custody with Father having alternate weekends (Friday through Sunday) and one day during the week from 4-7 PM. Notably, the [trial court] warned that Father's continued efforts to isolate and turn the children against their own Mother were as if he was carefully planting the "seeds of alienation."
Notwithstanding Father's behavior at that time to alienate the children from Mother, the [trial court] noted the following:
Father's role in the process [i.e. legal custody] can be resumed at some point in the future provided that there is demonstrated improvement on his ability to co-parent without the constant need to prove Mother wrong at each turn, imposing judgmental opinions that are not productive to the process, and thriving on producing conflict in the presence of third party professionals; all of which are not in the best interest of the children.
Father appealed the [trial court's] August 31, 2017 Order raising twelve (12) issues on appeal. On June 13, 2018, the Superior Court of Pennsylvania affirmed the [trial court's] Order…
[T]he parties continued to heavily litigate, not only in custody, but also in Equitable Distribution, Protection from Abuse and other various motions and pleadings.
On February 8, 2019, following an incident that occurred at the children's school where Mother's alcohol use was at issue, the [trial court] ordered Mother to enroll in Soberlink,
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a remote alcohol monitoring program. The Order was to ensure the safety of the children as it related to any allegation made regarding Mother's alcohol use and driving. The Soberlink program requires that the user designate a "concerned party," such that any requested changes to the program had to be signed off on by the concerned party. The program further required that there be "involved parties," such that all test results by the user would notify the involved parties. Mother designated her adult son,
Logan Visavati, as her "concerned party," and Father and the [Montgomery Child Advocacy Project attorney who had been appointed as a guardian ad litem for the children] as involved parties.
Thereafter, on or about March 2019, Mother and her concerned party requested that the Soberlink positive BAC threshold be raised from the default zero tolerance to a positive BAC threshold setting of 0.020% (based on her belief that the default zero setting was too sensitive and was providing inaccurate test results). Soberlink accommodated the request upon receiving the signed request forms from both Mother and her concerned party. When the changes were questioned by Father and his then attorney during the 2020 custody proceedings, in order to ensure full disclosure and transparency, the [trial court] entered an Order on February 24, 2020 detailing the aforementioned changes.
Father subsequently agreed to a custody Order on that same date, February 24, 2020. The February 24, 2020 Order restored Father's joint legal custody, added an overnight on the Sunday of Father's alternate weekends and added an overnight visit during the week (an increase of 6 overnights a month overall). It also provided an avenue for Father to improve his co-parenting relationship such that a 50/50 physical custody schedule could resume at the beginning of the 2020-21 academic school year. Notably, neither Father nor his legal counsel included in the Agreed Order any concern or request to change the BAC threshold back to a zero tolerance threshold.
Father did not make any effort to improve the co-parenting relationship and instead, continued to chart his path of contentious litigation, leading to his October 9, 2020 Emergency Petition to Modify-the basis for the instant
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appeal. As opposed to working towards a 50/50 schedule, as anticipated, Father instead sought to effectively shut Mother out completely; requesting "full legal and 100% physical custody."
Furthermore, in an ironic projection of his own faults and issues, Father alleged that it was Mother who is alienating the children from Father, that it was Mother who is creating conflict at every turn, and that it was Mother who is placing the children in "imminent danger." Consistent with Father's theme for total and full control, he requested that the minor children "have a break from Mother, [the] court, and its court-ordered professionals."
On June 8, 2020, upon review of an Emergency Petition filed by Mother, the [trial court] discovered that the therapy for the children, specifically directed in the 2017 Order, was not occurring and proceeded to enter an Order directing therapy to be resumed "forthwith."
On October 19, 2020, upon learning from the minor children's therapist, Kristine Kershner, that neither of the children were attending therapy as previously ordered in the August 31, 2017 Order and June 8, 2020 Order, the [trial court] proceeded to issue a Rule to Show Cause upon both parties to show why the [c]ourt should not find them in contempt.
After Father filed his Emergency Petition to Modify on October 9, 2020, the parties appeared…for a Triage Conference on December 11, 2020 and were then scheduled for a two-day protracted hearing before the [trial court] on February 2 and 3, 2021. Both Rule's to Show Cause were also consolidated with Father's Emergency Petition to Modify for the two day protracted hearing.
Notably, the Scheduling order…directed that "[o]nly relevant evidence since the 2/24/20 Agreed Order shall be admitted into the trial." Despite the Order limiting the parties to relevant evidence post February 24, 2020, Father proceeded to submit proposed exhibits numbering close to 1,000 pages in the [c]ourt's "drop box."
The first day of hearings began on February 3, 2021. The
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first half of the first day of testimony was directed to the children's therapist Kristine Kershner. In general, the therapist testified that the children were initially going to the scheduled appointments, but as soon as the alternating weekly summer schedule started in June with Father, they began to refuse attendance and Father did not bring them in for sessions. Ms. Kershner clarified that the children's refusal to attend was due to their belief that they did not need to attend therapy anymore and that they "no longer trusted the therapist." Additionally, Ms. Kershner testified to Exhibits "M-1" through "M-3" and conveyed the following:
[P.D.] began re-attending consistently on June 5, 2020, upon order of the court. At that time, increased visitation began to occur with her father, with [P.D.] and her sister reportedly spending alternate weeks with her father. During this time, there was notable clinical change in [P.D.] She became increasingly resistant to attend therapy, stating that she no longer wanted to attend because therapy was causing her a great deal of stress. During [three sessions] she indicates that she wants to stop therapy. When asked to explain her reasons, she shares each time that therapy is very stressful because it is causing her parents to argue more. She states her father does not want her to attend therapy
...

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