Mays v. Corbin

• Citation: 281 A.3d 1070 (Table)
• Docket Number: 1693 EDA 2021,J-S09017-22
• Decision Date: 14 June 2022
• Court: Superior Court of Pennsylvania
• Parties: Richard B. MAYS v. Ashleigh R. CORBIN, Appellant

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RICHARD B. MAYS v. ASHLEIGH R. CORBIN Appellant

No. 1693 EDA 2021

No. J-S09017-22

Superior Court of Pennsylvania

June 14, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered July 28, 2021, in the Court of Common Pleas of Philadelphia County, Domestic Relations at No(s) 0C1307838.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

KUNSELMAN, J.

Appellant Ashleigh R. Corbin (Mother) appeals from the order which: awarded Appellee Richard B. Mays (Father) sole legal and primary physical custody of their 9-year-old daughter N.M. (the Child); denied Mother's request that the Child relocate to Virginia; and found both parties in contempt. See 23 Pa.C.S.A. §§ 5328(a); 5337(h); 5323(g). Mother does not challenge the substantive custody or contempt decisions but alleges that the trial judge's courtroom procedure and personal antagonism deprived her of a fair trial thereby violating her constitutional right to due process. While we do not condone the behavior of the trial court (or Mother's counsel), we ultimately discern no error. After careful review, we affirm.

The relevant history begins in April 2019, when the trial court denied Mother's request that the Child relocate with her to Virginia. Mother was in the military and resided in various jurisdictions before ultimately moving to Virginia. The April 2019 order allowed Mother to exercise partial physical custody in Virginia, but Father retained primary physical custody in Philadelphia.^[1]

Over the next two years, the parties' compliance with the April 2019 order ceased entirely. Mother and Father routinely withheld custody of the Child, sometimes for months at a time. Mother had obtained the Virginia-equivalent of a Protection From Abuse Order. When Mother alleged Father violated the no-contact provision of that order, apparently by discussing custody with Mother, Father was fined and temporarily incarcerated. The Covid-19 pandemic further exacerbated the parties' efforts to seek legal recourse.

By the time the trial court presided over the subject hearing, the court had before it seven petitions, all of which concerned either contempt or custody modification.^[2] The consolidated hearing spanned two dates - March 25 and July 20, 2021. The court held the first day of the hearing remotely in accordance with Covid-19 protocols. There were immediate complications. Mother's counsel experienced technical difficulties, and it was unclear whether counsel properly submitted her pre-trial, custody-related exhibits. The court granted Father's request to continue the custody portion of the hearing; thus, the court proceeded only with the contempt portion on the first day.

The testimony centered on why the parties withheld custody in violation of the operating custody order. Mother alleged that the Child was unsafe in Father's care. Father evidently withheld custody because he felt entitled to lost custody time. Then Mother withheld because Father withheld. The court also conducted an in camera interview with the Child. The record does not contain a transcript of the conversation, however, because the trial court declared that the conversation was sealed. See N.T. 3/25/21 (Day 1), at 33-34.^[3] Notably, tensions flared between Mother's counsel the trial court. At one point the court found counsel in contempt and terminated counsel's cross-examination of Father. The court did not render contempt findings after the first day. Rather, the court issued an interim order appointing the Child a guardian ad litem (GAL), and awarded Father interim primary physical custody until the second day of the hearing a few months later.

The GAL subsequently met with the parties and the Child and issued a report. The report noted that the Child is bright and friendly, but that she was reluctant to answer even indirect questions about her parents. The GAL found that the Child tried to be loyal to each parent. Although the GAL found both parents to be loving, the GAL had concerns with the parties' parenting.

The GAL described Father's parenting style as somewhat lax. The GAL was also concerned that Mother does not allow the Child to feel sadness about leaving Father's care. More concerning, the GAL found that Mother's refusal to co-parent negatively affected the Child both physically and emotionally. For instance, the Child once received double immunizations because the parents were not on the same page. The GAL opined that Mother uses the Child as "evidence" of Father's poor parenting to bolster her legal case - i.e., Mother photographed the Child's dirty clothes after she returned from Father's care. But most alarming for the GAL was the fact that Mother had failed to ensure that the Child received necessary treatment from an endocrinologist for a medical condition called "precocious puberty." Because Mother had withheld custody in Virginia, the Child missed doctor appointments in Philadelphia.

The second day of the hearing was conducted in-person, on July 20, 2021. After a preliminary discussion about procedure, the court began with the substantive custody portion of the hearing. The court heard testimony from the GAL, Father, and Mother. The court also conducted a second in camera interview of the Child; though again, no record of the conversation was submitted.

The tensions between Mother's counsel and the trial court permeated the second day just as it did the first. One particularly heated moment involved Mother's testimony about a custody exchange. The designated location of the custody exchange was at a police station. The Child was upset during the custody exchange, so Mother asked a police officer to speak with the Child. The trial court found Mother's testimony to be duplicitous, as demonstrated by a series of pointed questions. Mother's counsel then sarcastically remarked: "Well, I'm so glad you [the court] were there and knew what happened." See N.T. (Day 2), 7/20/21 at 313. The court warned counsel she would be found in contempt if her behavior did not change. Id. at 318. The testimony ultimately resumed.

At the end of the hearing, the trial court announced it would award Father primary physical and sole legal custody. The court believed Mother was more concerned with alienating Father, than she was with the Child's best interests. The court further found that Mother's animosity toward Father caused the Child to inadvertently suffer both physical and mental harm. Ultimately, the court did not believe Mother's allegations that Father was abusive, but that Mother actively tried to defeat the operating custody order by obtaining relief in other jurisdictions.^[4] The court was also persuaded by the GAL report, which the court found to be "dead on." Id. at 389. After the court announced its decision, Mother was naturally upset, and when Mother volunteered her disagreement, the court noted for the record that Mother had threatened the court. Id. at 436.

The following week, the court issued three documents: the formal custody order; a delineation of its findings under Section 5328(a); and a delineation of its findings under Section 5337(h). See Orders of Court, 7/26/21. The custody order also included a provision finding both parties in contempt. The court did not order any sanctions, in apparent circumvention of 23 Pa.C.S.A. § 5323(g). See Harcar v. Harcar, 982 A.2d 1230, 1240 (Pa. Super. 2009) (holding that the trial court abused its discretion for failing to impose sanctions on a parent who flagrantly disregarded a custody order). However, neither party appealed that court's contempt decision or the lack of sanctions.

Mother timely-filed this appeal and presents the following three issues for our review:

1. Whether the trial court erred in failing to address the due process and procedural violations in its [Pa.R.A.P.] 1925 opinion or its earlier court order?

2. Whether the trial court violated Mother's due process rights such that her trial was unfair?

3. Whether the trial court evidenced a bias, berated Mother and her counsel, such that Mother was denied a fair trial and the court abused its discretion and otherwise erred as a matter of fact and law?

Mother's Brief at 28.^[5]

Typically, we review child custody orders for an abuse of discretion. S.T. v. R.W., 192 A.3d 1155, 1160 (PA. Super. 2018). We have explained that a court abuses its discretion when, inter alia, "the course pursued represents not merely an error of judgment, but…where the record shows the action is a result of partiality, prejudice, bias or ill will." Lewis v. Lewis, 234 A.3d 706, 722 (Pa. Super. 2020) (citations omitted). However, when a parent presents a due process challenge - as is the case here - our review changes:

A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary.

S.T., 192 A.3d at 1160. (citations omitted).

In her first issue, Mother alleges the trial court failed to comply with the appropriate procedure following an appeal from a custody order. Under the Child Custody Act, the trial court must consider the 16 child custody factors, as well as the 10 relocation factors, when resolving a relocation petition that would result in a changed custody award. See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013); see also 23 Pa.C.S.A. §§ 5328(a), 5337(h). After reaching a decision, the trial court must then delineate its reasons for the award on the record in open court, or in a written opinion or order. See 23 Pa.C.S.A. § 5323(d). Moreover, a trial court must delineate its reasons near the time of the decision, or else the litigant would not be able to take an effective appeal. See A.M.S.; see also C.B. v. J.B., 65 A.3d...