S.S. v. T.J.
212 A.3d 1026
Pa. Super. Ct.2019Background
- Parents divorced 2010; Mother relocated with two daughters (born 2006 and 2009) to South Carolina after trial court permitted relocation in a September 27, 2017 order giving Mother primary physical custody during school year and Father liberal summer/holiday/long-weekend custody.
- Father filed a petition to modify custody (Dec. 7, 2017), alleging Mother physically abused the children, improperly limited phone contact (to 30 minutes) in retaliation for a South Carolina DSS investigation, and neglected therapy for one child.
- The DSS investigation found the abuse allegations unfounded.
- Trial court held an April 25–26, 2018 hearing (Father pro se; Mother testified by phone); court interviewed the children by phone and found they were not abused, though Mother may be strict and possibly too rigid about call time limits.
- Trial court denied modification (4/26/2018), allowed phone calls to exceed 30 minutes using "common sense," ordered counseling for the children, and declined to hold Mother in contempt. Father appealed pro se.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother/Trial Ct) | Held |
|---|---|---|---|
| Sufficiency of Pa.R.A.P. 1925(b) statement / Waiver | Father contends trial court erred in denying modification and weighing factors | Trial court and appellee argue Father’s 1925(b) statement was vague/rambling and failed to preserve issues | Court: Father’s 1925(b) statement was not concise/specific; issues waived; appeal affirmed |
| Abuse of discretion / weight of evidence on custody modification | Father says evidence (children’s statements, screenshots, DSS contact, therapy stopped) shows abuse/interference and warrants modification | Trial court found children not abused, contact generally occurring, screenshots showed calls >40 minutes, and Mother’s discipline not abuse | Even on merits, trial court’s findings were supported by competent evidence; no abuse of discretion |
| Application of Section 5328(a) factors | Father alleges trial court failed to address the 16 custody factors | Trial court: did not change custody award—only addressed subsidiary issues (calls, counseling) and relied on prior relocation hearing findings | Court: Not required to analyze all 16 factors when the underlying custody award was not altered; no error |
| Challenge to prior relocation order | Father seeks to relitigate propriety of Sept. 27, 2017 relocation | Mother/trial court: relocation order was final and not appealed by Father within 30 days | Court: Father failed to timely appeal relocation order; those issues are time-barred and not reviewable now |
Key Cases Cited
- Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004) (Rule 1925(b) compliance required; vague concise statements waive issues)
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (mandates compliance with trial court orders to file 1925(b) statements to preserve appellate review)
- Commonwealth v. Dowling, 778 A.2d 683 (Pa. Super. 2001) (concise statement too vague to permit meaningful review is equivalent to no statement)
- C.R.F. v. S.E.F., 45 A.3d 441 (Pa. Super. 2012) (abuse of discretion standard in custody appeals; defer to trial court credibility findings)
- M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014) (trial court need not recite all 16 Section 5328(a) factors when underlying custody award is unchanged and only discrete subsidiary issues are resolved)