J-S26003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

LORI WAGNER AND ROBERT BOYER

v.

LUNDIN VENABLE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 384 MDA 2024

Appeal from the Order Entered February 15, 2024

In the Court of Common Pleas of York County 

Civil Division at No(s): 2019-FC-001924-03

BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: SEPTEMBER 24, 2024

Lundin Venable (“Mother”) appeals from the order denying her petition 

for modification of custody and contempt of court against Lori Wagner

(“Grandmother”) and Robert Boyer (“Grandfather”) (collectively, 

“Grandparents”). Mother raises numerous claims of trial court error. After 

careful review, we affirm.

The trial court set forth the relevant factual and procedural history:

Mother and Grandparents have been involved in custody 

proceedings since 2019 when Grandparents filed a complaint for 

custody of Mother’s child [(“Child”)], who is now seven years old, 

asserting that they had been caring for Child for the past eighteen 

months. Grandparents’ complaint asserted concerns regarding 

Mother’s substance abuse, alcohol abuse, mental health, suicide 

attempts, etc. At trial on June 24, 2020, the court granted 

Grandparents sole legal custody and primary physical custody of 

Child. The court granted Mother strictly supervised partial physical 

custody with increased time phased in via four different tiers with 

seven conditions. Because Mother admitted to posting a picture of 
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Child on social media posing with her butt naked when Child was 

three years old, the court found Mother to be a threat of harm.

Grandparents and Child live in York, Pennsylvania, and 

Mother now lives approximately two and one-half hours away in 

Wilkes-Barre, Pennsylvania. By way of an abbreviated procedural 

history, on July 25, 2022, Mother filed a petition for modification 

and contempt, seeking a contempt finding for Grandmother and 

for supervision to ultimately be dropped. A custody trial was 

scheduled for June 22, 2023. Because two experts would not be 

available on the first day of trial, the court scheduled an hour for 

one expert to give testimony on June 8, 2023, and for the other 

to give testimony on June 9, 2023. The trial on June 22, 2023 was 

continued [to] October 26, 2023 and [] February 8, 2024, when 

the court entered its final order. The court denied Mother’s petition 

with regard to contempt and removing the strict supervision 

requirement. The court did remove the phased-in system of 

supervision. Mother filed her notice of appeal and concise 

statement [of] errors on March 11, 2024.

Trial Court Opinion, 4/12/24, at 1-2 (record citations omitted).

Mother raises eight claims of error:

1. Did the trial court err as a matter of law and abuse its discretion 

by failing to complete testimony within a reasonable period of 

time, contrary to the best interests of the Child[?]

2. Did the trial court err as a matter of law and abuse its discretion 

by not addressing or ruling on matters of contempt raised by 

Mother in her Petition for Modification and Contempt filed on July 

25, 2022?

3. Did the trial court err as a matter of law and abuse its discretion, 

attributing Mother’s physical appearance and presence on [s]ocial 

[m]edia as factual reasons to continue supervised contact with the 

Child and deny her petition for [m]odification[?]

4. Did the trial court err as a matter of law and / or abuse its 

discretion when removing Mother’s ability to progress with her 

physical custody rights[?]

5. Did the trial court err as a matter of law and/or abuse its 

discretion when, without sufficient reason and despite expert 
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testimony, it found that [M]other continues to pose a risk of harm 

to the minor [C]hild[?]

6. Did the trial court err as a matter of law and / or abuse its 

discretion when, despite having achieved sustained sobriety, 

engaging in recovery groups, and continued engagement in 

mental health treatment, it sustained its finding that Mother is a 

risk of harm to the [C]hild[?]

7. Did the trial court err as a matter of law and/or abuse its 

discretion in continuing to allow Grandmother to deny Mother’s 

numerous requests that the [c]ourt appoint a supervisor despite 

a lack of evidence supporting ongoing safety concerns[?]

8. In addition to the above, the trial court erred as a matter of law 

and / or abused its discretion when it counted missed visits against 

her that she had no control over due to the continuing position of 

the court that she remains a risk of harm and continuing to require 

that Mother be subject to strict supervision at all times.

Appellant’s Brief, at 4-6.

Our standard and scope of review of a custody order or modification is 

as follows:

In reviewing a custody order, our scope is of the broadest 

type and our standard is [an] abuse of discretion. We must accept 

findings of the trial court that are supported by competent 

evidence of record, as our rule does not include making 

independent factual determinations. In addition, with regard to 

issues of credibility and weight of the evidence, we must defer to 

the presiding trial judge who viewed and assessed the witnesses 

first-hand. However, we are not bound by the trial court’s 

deductions or inferences from its factual findings. Ultimately, the 

test is whether the trial court’s conclusions are unreasonable as 

shown by the evidence of record. We may reject the conclusions 

of the trial court only if they involve an error of law, or are 

unreasonable in light of the sustainable findings of the trial court.

D.R.L. v. K.L.C., 216 A.3d 276, 279 (Pa. Super. 2019) (citation omitted). As 

is true of all custody matters, “the paramount concern is the best interests of 

the child.” S.S. v. T.J., 212 A.3d 1026, 1035 (Pa. Super. 2019) (citation 
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omitted). The same standard applies to modification of custody orders; a court 

may only modify a custody order “to serve the best interest of the child.” 23 

Pa.C.S.A. § 5338(a). To assist the courts in determining the best interest of a 

child, the Child Custody Act provides sixteen factors for a court to consider:

(a) Factors.—In ordering any form of custody, the court shall 

determine the best interest of the child by considering all relevant 

factors, giving substantial weighted consideration to the factors 

specified under paragraphs (1), (2), (2.1) and (2.2) which affect 

the safety of the child, including the following:

(1) Which party is more likely to ensure the safety of the child.

(2) The present and past abuse committed by a party or 

member of the party’s household, which may include past or 

current protection from abuse or sexual violence protection 

orders where there has been a finding of abuse.

(2.1) The information set forth in section 5329.1(a) (relating 

to consideration of child abuse and involvement with 

protective services).

(2.2) Violent or assaultive behavior committed by a party.

(2.3) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and another 

party if contact is consistent with the safety needs of the child.

(3) The parental duties performed by each party on behalf of 

the child.

(4) The need for stability and continuity in the child’s 

education, family life and community life, except if changes 

are necessary to protect the safety of the child or a party.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the 

child’s developmental stage, maturity and judgment.
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(8) The attempts of a party to turn the child against the other 

party, except in cases of abuse where reasonable safety 

measures are necessary to protect the safety of the child. A 

party’s reasonable concerns for the safety of the child and the 

party’s reasonable efforts to protect the child shall not be 

considered attempts to turn the child against the other party. 

A child’s deficient or negative relationship with a party shall 

not be presumed to be caused by the other party.

(9) Which party is more likely to maintain a loving, stable, 

consistent and nurturing relationship with the child adequate 

for the child’s emotional needs.

(10) Which party is more likely to attend to the daily physical, 

emotional, developmental, educational and special needs for 

the child.

(11) The proximity of the residences of both parties.

(12) Each party’s availability to care for the child or ability to 

make appropriate child-care arraignments.

(13) The level of conflict between the parties and the 

willingness and ability of the parties to cooperate with one 

another. A party’s effort to protect a child or self from abuse 

by another party is not evidence of unwillingness or inability 

to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member 

of a party’s household.

(15) The mental and physical condition of a party or member 

of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a). “It is within the trial court’s purview as the finder of 

fact to determine which factors are most salient and critical in each particular 

case.” M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (citation 

omitted).
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Mother first argues the trial court erred because it did not complete the 

testimony in a reasonable period of time and asserts the trial court violated 

Rule 1915.4. See Appellant’s Brief, at 24-26. Grandparents respond that 

Mother waived this claim by failing to “object or seek earlier court dates during 

the adjudication of Mother’s Petition for Modification and Contempt.” 

Appellee’s Brief, at 33. We agree.

“It is axiomatic that claims that were not raised in the trial court may 

not be raised for the first time on appeal.” In re S.C.B., 990 A.2d 762, 767 

(Pa. Super. 2010) (citations omitted); see McMillan v. Children and Youth 

Services Delaware County, 1791 EDA 2021, at *5 (Pa. Super. filed April 

27, 2022) (unpublished memorandum) (“failure to object to the timing and/or 

scheduling of a custody trial under Rule 1915.4 constitutes waiver on appeal”) 

(citation omitted).

1 Our review of the record does not show any objection to 

the scheduling of the hearings by Mother, nor does she point us to any place 

in the record where we can find her preservation of this issue. As such, this 

claim is waived.

Moreover, Mother does not request any specific relief on this claim nor 

provide us with any legal argument to support it. Mother simply notes that 

two of the trial dates were only an hour long, as the trial court scheduled them 

to accommodate the expert witnesses of each party, and one trial date ended 

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1 We may rely on unpublished decisions of this Court filed after May 1, 2019,

for their persuasive value. See Pa.R.A.P. 126(b).
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early because the trial judge had a personal appointment. See Appellant’s 

Brief, at 25-26. Notably, the language of the subsections of Rule 1915.4 to 

which Mother cites does not provide a remedy if the trial court does not comply 

with the time limits. See Pa.R.C.P. 1915.4(b), (c); Dear v. Dear, 3023 EDA 

2023, 2024 WL 3791650, at *6 (Pa. Super. filed August 13, 2024)

(unpublished memorandum) (noting that subsections 1915.4(c) and (d) do 

not provide a remedy or sanction for failure to comply) (citing Heffley v. 

Heffley, 977 WDA 2023, 2024 WL 1855126, at *8 (Pa. Super. filed April 29, 

2024) (unpublished memorandum)). Therefore, even if we did not find this 

claim waived, Mother would not be entitled to any relief.

Next, Mother combines issues 2 and 7 together in one argument 

section.2 Mother asserts the trial court “circumvent[ed] Mother’s claims of 

contempt through the appointment of a Parent Coordinator[.]” Appellant’s 

Brief, at 43-44. Mother argues the trial court erred in appointing a parent 

coordinator to assist with the selection of supervisors. See Appellant’s Brief, 

at 41-44. We address Mother’s claim of contempt first.

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2 Although Mother’s brief notes she is combining issue 2 and 8, the language 

of issue 8 on page 41 of Mother’s brief tracks the language of issue 7 in her 

statement of questions. Cf. Appellant’s Brief, at 5-6, 41. Further, we remind 

Mother’s counsel that “[t]he argument shall be divided into as many parts as 

there are questions to be argued[.]” Pa.R.A.P. 2119(a). If counsel seeks to 

combine questions to be argued in the argument section, they should be 

combined in the statement of questions involved.
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We review the denial of a contempt petition for a “clear abuse of 

discretion.” Rogowski v. Kirven, 291 A.3d 50, 57 (Pa. Super. 2023) (citation 

omitted). 

To be in contempt, a party must have violated a court order, 

and the complaining party must satisfy [its] burden [of proving 

contempt] by a preponderance of the evidence. Specifically, the 

complainant must prove certain distinct elements: (1) that the 

contemnor had notice of the specific order or decree which he, or 

she, is alleged to have disobeyed; (2) that the act constituting the 

contemnor’s violation was volitional; and (3) that the contemnor 

acted with wrongful intent.

Id. (citation and brackets omitted). “[A] mere showing of noncompliance with 

a court order, or even misconduct, is never sufficient alone to prove civil 

contempt.” In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super. 

2004) (citation omitted). Further, the order in which the contemnor is alleged 

to have violated must be “definite, clear, and specific—leaving no doubt or 

uncertainty in the mind of the contemnor of the prohibited conduct.” Id. 

(citation and emphasis omitted).

Mother does not point to what order she alleges Grandmother violated.3

Mother simply argues that “the [fact the] trial court felt it necessary to prompt 

Grandmother on several occasions to be gracious to Mother’s requests for 

supervisors supports Mother’s claim [of contempt.]” Appellant’s Brief, at 44 

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3 Mother’s petition for contempt notes that Grandmother violated the June 24, 

2020, order. See Petition for Modification and Contempt, 7/25/22, at 3. We 

believe Mother’s petition is referencing the final custody order filed on June 

26, 2020.
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(emphasis omitted). Our review of the record provides two possible orders

prior to Mother’s petition for contempt that refers to supervisors. First, the 

order filed on September 3, 2021, provides “the [c]ourt does urge the 

[G]randparents to either supervise on their own or to come up with some 

supervisors of their own.” Order, 9/3/21, at 2. Second, the final custody order 

of June 26, 2020, references supervised visits. However, the final custody 

order specifically references the supervisors as Grandparents, Ms. Gaffe, or 

Ms. Mary Margaret Smith. See Order, 6/26/20, at 3, 4, 5, 7.

We have not located any order that definitely, clearly, and specifically 

orders Grandmother to accept Mother’s supervisors. See In re Contempt of 

Cullen, 849 A.2d at 1210. Therefore, the trial court did not err in denying 

Mother’s petition for contempt.4

Mother further argues that the trial court erred in “delegat[ing] its 

responsibility as fact-finder and decision-maker over matters central to the 

custody case which Mother raised by petition to the Parent Coordinator[.]” 

Appellant’s Brief, at 42. Specifically, Mother asserts that the issue of visitation 

and the need for supervisors for Mother’s visitation, were the central issues 

____________________________________________

4 Mother briefly references a claim that Grandmother violated an order 

prohibiting disparaging remarks by either party in front of the Child. See 

Appellant’s Brief, at 43. As Mother includes only one sentence to support this 

claim, does not reference the order in question, and does not point to the 

record to show what disparaging remarks Grandmother made, we find this 

claim waived. See In re Adoption of J.M.B., 308 A.3d 1262, 1276 (Pa. 

Super. 2024) (finding issue waived for failure to develop the argument).
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which were delegated to the parent coordinator. See id. However, Mother did 

not object when the trial court appointed a parent coordinator to assist with 

finding supervisors. See N.T. Status Conference, 1/5/23, at 11 (Mother’s 

counsel agrees that a parent coordinator can assist with supervisors). We find 

this claim waived for failure to raise it with the trial court. See Pa.R.A.P. 

302(a).

Mother addresses her remaining claims in one argument section.

5 We 

therefore address her remaining claims together. Mother first argues the trial 

court erred in finding she is a risk of harm to Child because of a photograph 

Mother posted on social media that depicted Child’s naked buttocks. See 

Appellant’s Brief, at 28. However, as conceded by Mother, this finding was 

made by the trial court in its June 26, 2020, custody order. That order was 

not appealed and is therefore not before us. See Appellant’s Brief, at 27-28;

Pa.R.A.P. 903(a) (appeals must be filed within 30 days after the entry of the 

order). To the extent that Mother is arguing that the trial court should not 

continue to consider this factual finding, we note that “[i]t is clear that when 

making a decision as to the current best interests of the child[], the trial judge 

can consider the history of the parties.” Jones v. Jones, 884 A.2d 915, 916 

(Pa. Super. 2005) (citation omitted).

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5 Mother addresses claims 3, 4, 5, 6, and 8 together in one argument section. 

Although Mother’s brief notes she is arguing issue 7 within this section, the 

language of issue 7 on page 27 of Mother’s brief tracks the language of issue 

8 in her statement of questions. Cf. Appellant’s Brief, at 5-6, 27. 
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The crux of Mother’s remaining claims is a dispute over the trial court’s 

findings of fact, including its determinations of credibility and weight of the 

evidence. See Appellant’s Brief, at 28, 29, 31, 32, 34 (trial court drew a 

“conclusion not supported by the record[;]” trial court “relied on [its] own 

interpretation of evidence[;]” Mother asserts her decisions show she is not 

irrational, impulsive, or instable; the trial court “abnormally fixated on 

Mother’s stability[;]” the trial court allegedly “discount[ed] Mother’s [t]hreat 

of [h]arm [e]valuation[.]”). Mother is essentially asking this Court to re-weigh 

the evidence and re-assess credibility of the witnesses. We cannot do that. 

We reiterate that:

We must accept findings of the trial court that are supported by 

competent evidence of record, as our rule does not include making 

independent factual determinations. In addition, with regard to 

issues of credibility and weight of the evidence, we must defer to 

the presiding trial judge who viewed and assessed the witnesses 

first-hand.

D.R.L., 216 A.3d at 279 (citation omitted). We therefore will review the trial 

court’s findings to determine if they are supported by competent evidence 

within the record.

Mother’s first complaint is the trial court’s treatment of her social media 

presence. See Appellant’s Brief, at 27-33. The trial court addressed this claim 

as follows:

Mother mischaracterized the court’s ruling. The court did not 

rule that Mother’s appearance or social media were “the” reason 

to maintain supervised visitation. In assessing custody factor 

number four regarding a child’s need for stability and continuity 

in the child’s education, family life, and community life, the court 
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indicated that Mother’s judgment regarding inappropriate things 

on the internet, or her TikTok video showing the surgical 

bifurcation Mother had performed on her tongue to cause it to 

appear more like a snake’s tongue, while not a big deal in and of 

itself, raises continuing concerns regarding Mother’s stability. The 

court notes that in the history of this case, Mother’s social media 

posts have been a problem. For example, Mother posted a picture 

of Child when Child was three years old showing Child posing with 

her butt naked on social media. The court found this to be child 

pornography and ordered Mother not have pornography or adult 

content around Child. As another example, Mother made another 

questionable posting on Facebook of a picture of Mother 

attempting to give Child a kiss, but Child’s mouth is open. Mother 

set this picture as her profile picture on Facebook. The court notes 

that Mother closed her OnlyFans social media account a few years 

ago and reports that she closed or stopped using the Facebook 

account used to promote the OnlyFans account.

The court made clear that Mother’s mental stability, 

judgment, and relational instability remains a concern. ...

Trial Court Opinion, 4/12/24, at 8-9 (record citations omitted). The trial court 

continued in its opinion by referencing other examples of Mother’s instability. 

See id. at 9-12. Mother asserts the trial court’s conclusions that her social 

media presence shows inconsistency and lack of stability is not supported by 

the record. See Appellant’s Brief, at 28. We disagree.

As the trial court noted, Mother continues to post on social media 

inappropriate pictures and videos. The trial court viewed multiple TikTok 

videos posted both before and after Mother filed the petition for modification. 

See N.T. Trial, 10/26/23, at 115-22.

6 Grandmother testified she believes 

these videos show Mother’s mental health difficulties. See id. Mother never 

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6 These videos are not included in the certified record provided to this Court.
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denied posting the pictures and videos, and simply stated that they were 

posted years ago, and she agreed with her counsel that she is “now more 

cognizant of what [she] post[s] on social media and how it could impact [her] 

child[.]” See id. at 170-71. The trial court’s factual decision is based upon 

competent evidence of record, and we are bound by those findings. See 

D.R.L., 216 A.3d at 279. This issue does not merit relief.

Next, Mother argues the trial court “abnormally fixated on Mother’s 

stability[.]” Appellant’s Brief, at 32. However, we emphasize “[i]t is within the 

trial court’s purview as the finder of fact to determine which factors are most 

salient and critical in each particular case.” M.J.M., 63 A.3d at 339 (citation 

omitted). We decline to reweigh the evidence as that is solely within the 

discretion of the trial court.

Mother attempts to argue, for the first time to this Court, that the trial 

court was biased against her because of its “own personal religious views” and 

cites to a newspaper article from 2015. Appellant’s Brief, at 36. “It is wellsettled that [this Court] may only consider documents properly incorporated 

within the certified record.” Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 

(Pa. Super. 1996) (citation omitted). The newspaper article is not included 

within the certified record, and we will not consider it. Furthermore, Mother 

never requested recusal nor objected to the trial court’s alleged bias below. 

As such, this issue is waived. See Pa.R.A.P. 302(a).
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Finally, Mother disputes she is a risk of harm to Child. See Appellant’s 

Brief, at 37-40. Mother again is painting the picture in the light she wishes the 

trial court had viewed the evidence. We are not to reweigh the evidence nor 

create our own credibility judgments. See D.R.L., 216 A.3d at 279. The trial 

court thoughtfully considered all custody factors and our review of the record 

finds support for the trial court’s factual findings. See N.T. Trial, 2/8/24, at 

188-95.

As Mother’s claims are either waived or without merit, we affirm the 

order of the trial court.7

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 9/24/2024

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7 Grandparents ask this Court to dismiss Mother’s appeal for her repeated 

violations of the Rules of Appellate Procedure. We previously denied a similar 

request on May 31, 2024. Grandparents renew this request and include 

additional violations of the Rules. As we do not believe Mother’s violations 

have hampered our review, we decline to dismiss the appeal on this basis.