Wert, O. v. Wert, J.

J-S25001-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

OLUSEUN WERT : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOSHUA WERT : No. 174 EDA 2024

Appeal from the Order Entered January 2, 2024 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2023-FC-0388

BEFORE: DUBOW, J., McLAUGHLIN, J., and BECK, J. MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 24, 2024

Appellant, Olusean Wert (“Mother”), appeals from the January 2, 2024 order entered in the Lehigh County Court of Common Pleas that awarded Mother and Appellee, Joshua Wert (“Father”), shared legal and physical custody of the parties’ children, seven-year-old L.W. and five-year-old L.W. (collectively, “Children”). Upon review, we affirm.

A detailed recitation of the factual and procedural history is unnecessary to our disposition. Briefly, on April 12, 2023, after approximately ten years of marriage, Mother filed a complaint in divorce and custody, requesting shared legal and primary physical custody of Children. On June 1, 2023, after a custody conference, the trial court entered an interim custody order awarding the parties shared legal and physical custody of Children pending a full custody trial. On August 10, 2023, December 13, 2023, and December 14, 2023, the court held a custody trial. Mother presented testimony from Children’s

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babysitter and herself. Father presented testimony from his coworker/friend, his mother, his mother’s paramour, and himself. On January 2, 2024, after considering the 23 Pa.C.S. § 5328 custody factors, the trial court entered an order awarding shared legal and physical custody to the parties. Specifically, the court ordered the parties to follow a “2-2-5-5” rotating custody schedule where Mother and Father received an equal amount of weekday and weekend time with Children.

Mother timely appealed.1 Both Mother and the trial court complied with Pa.R.A.P. 1925.

Notably, in her brief to this Court, Mother fails to include a statement of the questions involved as required by Pa.R.A.P. 2116. However, in her Rule 1925(b) statement as well as her argument section, Mother enumerates the following issues for our review:

1. The trial court erred when it denied Mother’s petition for primary custody.

2. The trial court erred when it did not allow videos from [Mother]’s home to be entered into evidence.

____________________________________________ 1 On January 12, 2024, Mother filed a notice of appeal purporting to challenge

two separate orders in two separate cases. Specifically, Mother challenged both a December 13, 2023 order denying a protection from abuse petition as well as a January 2, 2024 custody order. On January 29, 2024, this Court entered a rule to show cause directing Mother to respond as to the order being appealed. On February 7, 2024, Mother filed a response to the rule to show cause, and on February 20, 2024, Mother filed an amended notice of appeal solely challenging the January 2, 2024 custody order.

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3. The trial court erred when it did not allow videos from [Mother]’s marital home to be admitted into day two of trial, but allowed them in day one of trial.

Mother’s Br. at 7, 11, 12 (unpaginated).

A.

This Court reviews a custody determination for an abuse of discretion, and our scope of review is broad. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). This Court will not find an abuse of discretion “merely because a reviewing court would have reached a different conclusion.” In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). This Court must accept the findings of the trial court that the evidence supports. S.W.D., 96 A.3d at 400. Importantly, “[o]n issues of credibility and weight of the evidence, we defer to the findings of the trial judge who has had the opportunity to observe the proceedings and demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation omitted). We can interfere only where the “custody order is manifestly unreasonable as shown by the evidence of record.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Further, in a custody case, relief is not warranted unless the party claiming error suffered prejudice from the mistake. J.C. v. K.C., 179 A.3d 1124, 1129-30 (Pa. Super. 2018).

When reviewing child custody matters, our “paramount concern and the polestar of our analysis” is the best interests of the child. Saintz, 902 A.2d at 512 (citation omitted). “The best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the

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child’s physical, intellectual, moral, and spiritual well-being.” D.K.D. v. A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016) (citations omitted). “Common sense dictates that trial courts should strive, all other things being equal, to assure that a child maintains a healthy relationship with both of his or her parents, and that the parents work together to raise their child.” S.C.B. v. J.S.B., 218 A.3d 905, 916 (Pa. Super. 2019).

The trial court “shall determine the best interest of the child by considering all relevant factors, giving substantial weighted consideration to the factors . . . which affect the safety of the child,” including the seventeen factors mandated by the Custody Act. 23 Pa.C.S. § 5328(a). The court must “delineate the reasons for its decision[.]” Id. at § 5323(d). Finally, in any action regarding the custody of the child between the parents of the child, there shall be no presumption that custody should be awarded to a particular parent and no preference based upon gender. 23 Pa.C.S. §§ 5327(a) and 5328(b).

Furthermore, our review of a trial court’s evidentiary rulings is wellestablished. “The admissibility of evidence is a matter solely within the discretion of the trial court. This Court will reverse an evidentiary ruling only where a clear abuse of discretion occurs.” Commonwealth v. Johnson, 638 A.2d 940, 942 (1994) (citation omitted). “An abuse of discretion will not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly

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erroneous.” Commonwealth v. Lehman, 275 A.3d 513, 518–19 (Pa. Super.) (citation omitted), appeal denied, 286 A.3d 213 (Pa. 2022).

B.

As an initial matter, Mother’s argument section is substantially underdeveloped. To support her claims, Mother merely provides boilerplate law regarding child custody proceedings and the admission of video recordings into evidence. Under each argument heading, Mother boldly states: “[t]he undersigned is unable to complete the factual basis for this part of the argument, as she is still missing a transcript[.]” 2 Mother’s Br. at 10, 12, 13-14 (unpaginated). As such, Mother fails to apply the facts of this case to the law that she provides to assert any actual trial court error.

It is axiomatic that the argument portion of an appellate brief must be developed with citation to the record and relevant authority. Pa.R.A.P 2119(a)-(c). “The Rules of Appellate Procedure [] state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020) (citation omitted); see Pa.R.A.P. 2111 (listing briefing requirements for appellate briefs) and Pa.R.A.P. 2119 (listing argument ____________________________________________ 2 Mother faults a missing transcript for her inability to provide any substantive

legal analysis. Our review of the docket reveals that Mother initially failed to order the December 14, 2023 transcript in violation of Pa.R.A.P. 1911 and subsequently motioned this Court for assistance with the missing transcript. On April 2, 2024, upon order from this Court, the lower court supplemented the certified record with the December 14, 2023 notes of testimony. Thereafter, Mother failed to motion this Court to supplement her brief.

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requirements for appellate briefs). “When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review[,] a Court will not consider the merits thereof.” Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942-43 (Pa. Super. 2006) (citation omitted). It is not the role of this Court to develop an appellant's argument where the brief provides mere cursory legal discussion. Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009). This Court will not act as counsel. In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012).

Because Mother fails to apply the law to the facts of this case in a meaningful and coherent manner with citation to the record as required by our Rules of Appellate Procedure and case law, we find her issues to be waived.

C.

Even if this court did not find Mother’s issues to be waived, we discern no trial court error. After careful review of the parties’ briefs, the applicable law, and the trial court’s well-reasoned and thorough opinion, we conclude that there is no merit to the issues that Mother has raised on appeal. The trial court engaged in an analysis of each of the Section 5328 custody factors and made specific findings regarding each factor, which the record supports. Tr. Ct. Op., 4/11/24, at 1-9. The trial court also addressed Mother’s evidentiary challenges and explained why each video marked at trial was included or precluded from evidence, despite Mother not identifying the specific videos to which she was referring. Id. at 12. Accordingly, even if we did not find waiver we would affirm on the basis of the trial court’s April 11, 2024 opinion. Id. at

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1-12 (considering all of the Section 5328 custody factors and finding that it was in Children’s best interest to award shared legal and physical custody to parties and concluding that the trial court did not abuse its discretion when it precluded video evidence).

All parties are instructed to attach a redacted copy of the April 11, 2024 trial court opinion to all future filings.

Order affirmed. Date: 9/24/2024

-7-Circulated 09/13/2024 09:00 AM