J-A03014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.L. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

S.G.

Appellee No. 1487 MDA 2014

Appeal from the Order Entered August 6, 2014

In the Court of Common Pleas of Luzerne County

Civil Division at No(s): 2013-10899

BEFORE: MUNDY, J., STABILE, J., and JENKINS, J. 

MEMORANDUM BY MUNDY, J.: FILED APRIL 21, 2015

Appellant, M.L. (Father), appeals from the August 6, 2014 custody 

order granting Appellee, S.G. (Mother), primary physical custody, Father 

partial physical custody, and the parties shared legal custody with respect to 

their son, L.G., born out of wedlock in January of 2013. After careful review, 

we affirm. 

The trial court summarized the relevant facts and procedural history as 

follows.

[On September 13, 2013, Father] filed a Complaint 

in Custody seeking primary physical and shared legal 

custody of L.G. [ ]. [Mother] filed a Counterclaim 

seeking primary physical custody of the minor child. 

Father and Mother are the biological parents of the 

aforesaid child.

From L.G.’s date of birth through October 15, 

2013[,] there was no custody order in effect. By 

way of Father’s Special Relief Petition [filed on 
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September 26, 2013], a hearing was held on October 

15, 2013. As a result of this hearing, th[e trial 

c]ourt entered ... the first custody order in this 

matter which called for shared physical custody with 

a 4/3[,] 3/4 alternating schedule of physical custody. 

The duration of this court order was only to last until 

the Custody Conference of November 5, 2013.

An agreement on the issue of custody could not be 

reached via Conciliatory Custody Conference held on 

November 5, 2013 resulting in this matter being 

listed for trial. The parties did enter into an 

agreement concerning holiday scheduling for 

Thanksgiving and Christmas 2013 and Easter 2014 

with the assistance of Dr. Lewis, Ph[.]D, the Custody 

Evaluator, appointed by the [trial c]ourt with no 

objection by either party....

The custody trial commenced ... on March 4, 2014[,] 

continuing with testimony and evidence being 

received over eleven days spanning1 March and April 

until concluding on May 19, 2014....

_________________________________________

1 Testimony and evidence was received by th[e trial 

c]ourt on March 4, 5, 12, 13, 18, and 26; April 3, 9, 

and 19; May 7 and 19, 2014.

Trial Court Opinion, 8/6/14, at 1-2 (footnote in original).

By order dated August 6, 2014, the trial court granted the parties 

shared legal custody, Mother primary physical custody, and Father partial 

physical custody on alternating weekends and every Wednesday from 2:00 

p.m. until 7:00 p.m. On August 29, 2014, Father timely filed a notice of 

appeal and a concise statement of errors complained of on appeal pursuant 

to Pa.R.A.P. 1925(a)(2)(i). On September 17, 2014, the trial court issued 

its Rule 1925(a) opinion discussing Father’s issues and adopting its August 

6, 2014 opinion.
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On appeal, Father presents the following issues for our review.

1. Did the trial court err as a matter of law and/or 

[sic] an abuse of discretion in failing to hold a 

hearing on the Frye[1] motion or deciding the Frye

motion before adopting the expert’s report and

recommendation and rendering its decision[?]

2. Did the trial court err as a matter of law and/or 

[sic] abuse of discretion by failing to consider the 

Frye motion and denying the opportunity to have an 

expert testify in support of the Frye motion[?]

3. Did the trial court err as a matter of law and/or 

[sic] abuse of discretion by denying an opportunity 

to have an expert testify[?]

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

[sic] an abuse of discretion by failing to do its own 

analysis and in its wholesale adopting Dr. Lewis’s 

opinion as its own opinion[?]

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

[sic] an abuse of discretion in its application of the 

enumerated factors under [23 Pa.C.S.] § 5328 by:

a. In not consistently applying the same facts 

to different factors;

b. Failing to apply the evidence and testimony;

c. Failing to apply current case law.

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

[sic] an abuse of discretion by accepting Dr. Lewis’s 

position on “attached theory,” factor 10, when Dr. 

Lewis testified that there is no attachment problem 

and the parties stipulated that there was no 

attachment issue[?]

____________________________________________

1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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Father’s Brief at i-ii.

The scope and standard of review in custody matters is as follows.

[T]he appellate court is not bound by the 

deductions or inferences made by the trial 

court from its findings of fact, nor must the 

reviewing court accept a finding that has no 

competent evidence to support it.... However, 

this broad scope of review does not vest in the 

reviewing court the duty or the privilege of 

making its own independent determination.... 

Thus, an appellate court is empowered to 

determine whether the trial court’s 

incontrovertible factual findings support its 

factual conclusions, but it may not interfere 

with those conclusions unless they are 

unreasonable in view of the trial court’s factual 

findings; and thus, represent a gross abuse of 

discretion. 

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. 

Super. 2009) (quoting Bovard v. Baker, 775 A.2d 

835, 838 (Pa. Super. 2001)). Moreover,

[O]n issues of credibility and weight of 

the evidence, we defer to the findings of the 

trial [court] who has had the opportunity to 

observe the proceedings and demeanor of the 

witnesses.

The parties cannot dictate the amount of 

weight the trial court places on evidence. 

Rather, the paramount concern of the trial 

court is the best interest of the child. 

Appellate interference is unwarranted if the 

trial court’s consideration of the best interest 

of the child was careful and thorough, and we 

are unable to find any abuse of discretion.

R.M.G., Jr., supra at 1237 (internal citations 

omitted). The test is whether the evidence of record 

supports the trial court’s conclusions. Ketterer v. 

Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).
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A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations 

omitted).

The primary concern in any custody case is the best interests of the 

child. “The best-interests standard, decided on a case-by-case basis, 

considers all factors that legitimately have an effect upon the child’s 

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 

A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 

677 (Pa. Super. 2004).

Relevant to this custody case are the factors set forth in Section 

5328(a) of the Child Custody Act (Act),2 which provides as follows.

§ 5328. Factors to consider when awarding 

custody.

(a) Factors. – In ordering any form of custody, the 

court shall determine the best interest of the child by 

considering all relevant factors, giving weighted 

consideration to those factors which affect the safety 

of the child, including the following:

(1) Which party is more likely to encourage 

and permit frequent and continuing contact 

between the child and another party.

(2) The present and past abuse committed by 

a party or member of the party’s household, 

whether there is a continued risk of harm to 

the child or an abused party and which party 

can better provide adequate physical 

safeguards and supervision of the child.

____________________________________________

2 23 Pa.C.S.A. §§ 5321-5340.
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(2.1) The information set forth in section 

5329.1(a)(1) and (2) (relating to consideration 

of child abuse and involvement with protective 

services).

 

(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.

(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 maturity and judgment.

(8) The attempts of a parent to turn the child 

against the other parent, except in cases of 

domestic violence where reasonable safety 

measures are necessary to protect the child 

from harm.

(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 of the child.

(11) The proximity of the residences of the 

parties.

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

child or ability to make appropriate child-care 

arrangements.

(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 from abuse by another party is 
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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).3 

This Court has stated that, “[a]ll of the factors listed in section 

5328(a) are required to be considered by the trial court when entering a 

custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original). 

Section 5323(d) provides that a trial court “shall 

delineate the reasons for its decision on the record in 

open court or in a written opinion or order.” 23 

Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)

requires the trial court to set forth its mandatory 

assessment of the sixteen [Section 5328 custody] 

factors prior to the deadline by which a litigant must 

file a notice of appeal.” C.B. v. J.B., 65 A.3d 946, 

955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 

(Pa. 2013)....

In expressing the reasons for its decision, “there is 

no required amount of detail for the trial court’s 

explanation; all that is required is that the 

enumerated factors are considered and that the 

custody decision is based on those considerations.” 

M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 

____________________________________________

3 The Act was amended, effective January 1, 2014, to include the additional 

factor at Section 5328(a)(2.1).
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2013), appeal denied, 68 A.3d 909 (Pa. 2013). A 

court’s explanation of reasons for its decision, which 

adequately addresses the relevant factors, complies 

with Section 5323(d). Id.

A.V., supra at 822-823. In this case, the trial court addressed all of the 

Section 5328(a) custody factors in its opinion that accompanied the subject 

order. See Trial Court Opinion, 8/6/14, at 3-14. Therefore, we may now 

turn to Father’s issues raised on appeal.

Upon review of the record, we conclude that Father’s issues on appeal 

are waived for lack of a complete record. Specifically, as set forth above, 

the protracted custody trial lasted eleven days, beginning on March 4, 2014, 

and concluding on May 19, 2014. The certified record before this Court 

includes transcripts from the trial on March 4, 5, and 26, 2014, but 

transcripts from the additional eight days of the trial are not a part of the 

record. Further, the trial exhibits are not a part of the certified record. This 

Court’s prothonotary contacted the trial court’s prothonotary in an attempt 

to learn the whereabouts of the remaining trial transcripts. As part of this 

Court’s inquiry, we spoke to the supervisor of the prothonotary/clerk of 

courts. Our search proved unavailing, as the trial court’s prothonotary did

not have the transcripts.4 

____________________________________________

4 This Court made three separate inquiries of the trial court’s prothonotary 

regarding the missing transcripts. We advised the prothonotary that Father 

filed a reproduced record that included transcripts for the proceedings on 

March 12 and 18, 2014, and portions of the transcripts for the proceedings 

(Footnote Continued Next Page)
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“It is the obligation of the appellant to make sure that the record 

forwarded to an appellate court contains those documents necessary to 

allow a complete and judicious assessment of the issues raised on appeal.” 

Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996) (citation 

omitted); accord Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super. 2004), 

appeal denied, 868 A.2d 1201 (Pa. 2005). It is the appellant’s responsibility 

to ensure that the necessary transcripts are included in the record. “It is not 

for an appellate court to scour the dockets of the various prothonotaries to 

confirm or deny allegations of any party to an appeal.” Fiore v. Oakwood 

Plaza Shopping Ctr., Inc., 585 A.2d 1012, 1019 (Pa. Super. 1991); 

accord Preston, supra at 7-8. Where an appellant fails to fulfill his 

obligation, “the appellate court may take such action as it deems 

appropriate, which may include dismissal of the appeal.” Pa.R.A.P. 1911(d).

(Footnote Continued) _______________________

on April 9, 2014, May 7 and 19, 2014, none of which are included in the 

certified record. In addition, Mother filed a supplemental reproduced record 

that included transcripts for the proceedings on April 3 and 9, 2014, and May 

7, 2014, which also are not a part of the certified record. Nonetheless, the 

prothonotary advised this Court that Father did not request or pay for the 

trial transcripts. Upon review, there is no request for transcripts by Father 

in the certified record. Notably, “if a document is not in the certified record, 

the Superior Court may not consider it.” Commonwealth v. Preston, 904 

A.2d 1, 7 (Pa. Super. 2006) (en banc), appeal denied, 916 A.2d 637 (Pa. 

2007). Pennsylvania Rule of Appellate Procedure 1921 provides that the 

certified record consists of the “original papers and exhibits filed in the lower 

court, paper copies of legal papers filed with the Prothonotary by means of 

electronic filing, the transcript of proceedings, if any, and a certified copy of 

the docket entries prepared by the clerk of the lower court.” Pa.R.A.P. 1921.
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In this case, without transcripts from the entire custody trial and the 

exhibits made a part of the certified record, we are unable to conduct a 

proper review of the issues raised in this appeal. Therefore, we must 

conclude that the issues are waived on this basis. See generally 

Commonwealth v. O’Black, 897 A.2d 1234, 1238 (Pa. Super. 2006).5 

Accordingly, we affirm the trial court’s August 6, 2014 custody order.

Order affirmed.

Judge Jenkins joins the memorandum.

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015

____________________________________________

5 We note “[s]ince the Rules of Appellate Procedure apply to criminal and 

civil cases alike, the principles enunciated in criminal cases construing those 

rules are equally applicable in civil cases.” Lineberger v. Wyeth, 894 A.2d 

141, 148 n.4 (Pa. Super. 2006), citing Kanter v. Epstein, 866 A.2d 394, 

400 n.6 (Pa. Super. 2004), appeal denied, 880 A.2d 1239 (Pa. 2005), cert. 

denied, Spector Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092 (2006).