Bowman, S. v. Bowman, J.

Court: Superior Court of Pennsylvania
Date filed: 2022-11-29
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J-A23028-22


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SHANNON C. BOWMAN                          :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JON S. BOWMAN                              :    No. 447 MDA 2022

               Appeal from the Order Entered February 11, 2022
      In the Court of Common Pleas of Cumberland County Civil Division at
                             No(s): 2016-00825


BEFORE:      BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.:                       FILED: NOVEMBER 29, 2022

        Shannon C. Bowman1 (Mother) appeals pro se from the order entered

in the Cumberland County Court of Common Pleas which amended a prior

custody order with regard to the payment of therapy sessions for her son,




____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Although this is a custody matter, the parties’ full names appeared in the
caption in the trial court. Pennsylvania Rule of Appellate Procedure 904
requires that “[t]he parties shall be stated in the caption [on appeal] as they
appeared on the record of the trial court at the time the appeal was taken.”
Pa.R.A.P. 904(b)(1). Although subsection (b)(2) permits the parties in a
custody action to submit an application to use their initials “based upon the
sensitive nature of the facts . . . and the best interest of the child[,]”neither
Mother nor Father has made such an application in this appeal. See Pa.R.A.P.
904(b)(2). Nevertheless, we will refer to the minor child by his initials or
“Child.”
J-A23028-22



I.W.B. (Child).2 The court directed that Mother and Jon S. Bowman (Father)

share equally the cost of Child’s play therapy, but each bear the cost of their

individual sessions with Child’s therapist. On appeal, Mother argues the trial

court erred or abused its discretion when it (1) relitigated an issue which had

been resolved by a prior order that Father did not appeal, and (2) directed

Mother to pay a greater portion of Child’s medical expenses than she would

be responsible for as calculated under the support guidelines. Based on the

following, we affirm.

       As this Court stated in a prior appeal from a custody order involving

these parties, “[t]his matter has a lengthy and tortuous procedural history.”

S.C.B., 218 A.3d at 908. Briefly, we note the parties were married in October

of 2013, but separated shortly after the birth of Child the following year. 3 See

Trial Ct. Op., 8/3/20, at 1. Mother initially filed a complaint for custody on

February 11, 2016.        Since that time, the trial court has conducted three

custody trials and resolved numerous emergency and contempt petitions filed

by both parties. See id. at 1-2. The most recent custody trial was conducted

on November 17 and 30, 2021, and resulted in an amended custody order and

parenting plan issued on January 27, 2022, which was amended again on

February 11, 2022, after Father filed a motion for reconsideration. To describe

____________________________________________


2 Child was born in August of 2014. See S.C.B. v. J.S.B., 218 A.3d 905, 908
(Pa. Super. 2019) (prior appeal).

3A final decree in divorce was issued on March 12, 2020. Trial Ct. Op., 8/3/20,
at 1 n.2.

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this matter as contentious is an understatement. Indeed, the most recent

order includes a schedule for Child’s haircuts because the parties cannot, or

will not, agree on how Child should style his hair.      See Amended Custody

Order & Parenting Plan, 2/11/22, at 9.

       As the trial court explains, however, the present appeal arises from a

discrete issue concerning the payment for Child’s therapist:

              On October 12, 2021, [the court] held a pretrial conference
       in this matter [in preparation of the upcoming custody trial. A]t
       issue on that day, [inter alia,] was an adjudication on Father’s
       Petition for Contempt that Mother had failed to send Child to
       counseling. Ultimately, Father agreed to withdraw the Petition for
       Contempt as the parties had agreed to send Child to a new
       counselor, Pamela Moran, Mother’s preferred provider. At the end
       of the pretrial conference, counsel for Mother raised the issue of
       how the parties should pay for Child’s therapy services. The
       parties had been equally splitting the costs for the Child’s previous
       therapist, and prior to that they had used a 51%/49% ratio set by
       their support matter. The issue with Ms. Moran’s payment
       schedule was two-fold. First, Ms. Moran intended on billing the
       parties separately for Child’s solo sessions and for sessions when
       Child was accompanied by one of the parents. Second, Mother’s
       insurance was not accepted by Ms. Moran, but Father’s was, so
       while Father was only paying a $40.00 [co-pay] for his parent
       sessions with Child, Mother was paying an out-of-pocket fee of
       $115.00. Child’s sessions were billed under Father’s insurance
       with a co-pay of $40.00.[4]

____________________________________________


4 The record is unclear as to whether Child’s sessions were billed under Mother
or Father’s insurance policy at that time. At one point during the October
2021 pretrial hearing, Father’s counsel stated that “when the session [was]
with [Child,] it [was] billed at the $40.00 co-pay under [Father’s] insurance.”
See N.T., 10/12/21, at 15. However, counsel later explained that Child was
billed under Mother’s insurance at the time of the hearing, but that Father
intended to put Child on his insurance beginning in January of 2022. Id. at
18. Regardless, it was evident that Ms. Moran billed each parent session
individually depending on who accompanied Child to the appointment.

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            Gail Souders, Esquire, the Guardian ad litem [hereinafter
     the GAL], had spoken to Ms. Moran at length about Child’s
     treatment plan and billing. [The GAL] related that the treatment
     plan is for Child, and that Child is “the patient,” however, Ms.
     Moran believes that it is important to observe the Child with each
     parent individually. Child’s previous counselor did this as well, but
     she billed every session under Child’s account. Ms. Moran intends
     on having three separate accounts; Child’s individual sessions will
     be billed under Child’s account. Mother and Father’s separate
     individual sessions to discuss Child’s progress and issues will be
     billed under their respective accounts. So while Mother and Father
     are not patients of Ms. Moran, she will be billing them individually
     for her time with her.

            Both parties and [the GAL] proposed a myriad of options on
     how to split the costs of Child’s therapy. Mother suggested the
     parties split the total cost of Child, Mother, and Father’s sessions
     pursuant to the Support Order for [unreimbursed] medical
     expenses under which Father must pay 49% of the total. Father
     objected to using the support calculation because the Support
     Master specifically stated that parents’ individual sessions with the
     therapist were to be excluded from the support allocation.
     Father’s preferred payment method was that the parties pay their
     individual sessions and then split the payment for Child’s sessions.
     [The GAL] suggested that the parties equally split the cost of
     anything covered under the “treatment plan,” and if any parent
     asked for an individual session outside of the “treatment plan,”
     that parent would pay the costs of that session.

           After a lengthy argument on the matter which devolved into
     a perplexing argument on who should carry Child on which
     insurance plan, [the t]rial [c]ourt had additional questions for Ms.
     Moran, which [it] asked [the GAL] to relay and report back. For
     lack of a clear option, and noting that Ms. Moran was not willing
     to see Child until the billing situation was resolved, [the court]
     stated that “Until the new plan, we are going to do 50/50,
     regardless if it is [Mother] showing up or [Father] showing up.
     [The GAL] is going to call to figure out, with my specific questions
     in mind.” [The GAL] then asked for clarification on her duties, to
     which [the court] responded[:] “Two questions specifically to ask
     [Ms. Moran]: Number one, if child is carried on Parent A[’s
     insurance] does that affect when Parent B goes in for their
     sessions? And, will either party have more sessions than the other
     parent?” [The GAL] confirmed that she understood and stated her
     intention to follow-up with Ms. Moran.

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          After the pretrial conference, [the t]rial [c]ourt issued an
     Order stating that

        Any healthcare expenses incurred from [Ms.] Moran,
        regardless of which parent saw her at the time, will be split
        fifty-fifty until further Order of Court, or until the parents
        examine and perhaps change the insurance coverage for the
        minor child. . . [The GAL] is directed to communicate with
        [C]hild’s therapist to inquire as to the pricing plan,
        specifically, how visits for the [C]hild and each parent are
        billed and whether either parent will have more sessions
        than the other parent.

           In preparation for trial, [the GAL] submitted a written report
     to the [c]ourt on November 11, 2021, which was entered into the
     record[.] As to the billing issue with Ms. Moran, [the GAL]
     reported that

        [Child] is the client.    [Ms. Moran] bills for [Child’s]
        appointment on Mother’s insurance.       [Child] is under
        Mother’s insurance. [Ms. Moran] will be billing Father’s
        insurance when he sees her at his appointment. She will be
        billing Mother’s insurance when Mother sees her at her
        appointment. This has been an ongoing issue with the
        parties and [Ms. Moran]. I suggest the parties pay for
        their individual appointments and split 50/50 the cost
        of [Child’s] appointments.

            At trial, the issue of payment for counseling came up only
     twice. First, Mother alluded briefly to the October 12[th] pretrial
     conference when arguing for sole legal custody.[FN] The only other
     mention of payment came from the [GAL] when she was called by
     Father to testify as to her report. On direct, [the GAL] was asked
     “What is your understanding of the arrangements to bring [Child]
     to the counseling sessions?” to which she replied “[t]he Judge
     wanted me to talk to [Ms. Moran], so I spoke to [her]. And I have
     to say, [Ms. Moran] is a little frustrated because she’s never had
     this become a big issue, payment. I mean, she’s had numerous
     calls.” At that point, Father’s counsel stopped [the GAL] and
     stated “I’m not – not asking about payment. Who – about the
     arrangements to bring [Child] to the --.” [The GAL] went on to
     testify that “[Child] should be seen at least twice a month. Each
     parent is required to bring the child in so [Ms. Moran] can make
     observations. And then she wants to meet with each parent either
     once a month or every other month, sort of a check in, see how


                                    -5-
J-A23028-22


     things are going from their end.” [The GAL’s] testimony was then
     directed to other matters. Mother did not ask her any questions
     about Ms. Moran’s treatment plan on cross-examination.
     __________
        FNSee [N.T., 11/18/21, at] 183 . . . (“And then recently we
       had to have a hearing about which therapist we were going
       to switch to. And then we had to have another Court
       Intervention because he didn’t want to pay 50 percent of
       the bill, so we had to have another Court Intervention about
       that . . .”). See also [id. at] 190[-91] (“. . . Therapy with
       [Ms. Moran] almost stopped a month ago because I said we
       should pay her 50/50. Just like the child support order, just
       like the custody evaluation, and he wanted to argue with it.
       . . . I don’t want to pay it that way. We almost didn’t have
       [Child] in therapy. And we had to come to court and get an
       order to say, yup, you pay 50/50 so that he can continue .
       . .”).
     __________

           On January 27, 2022, [the t]rial [c]ourt issued a Custody
     Order and Parenting Plan with an accompanying Opinion
     addressing [its] findings and analysis. Inadvertently, [the court]
     omitted the decision regarding payment of Ms. Moran’s fees. After
     the entry of the Custody Order, Father filed a Motion for
     Reconsideration, noting that, although Father had reminded [the
     c]ourt to include the assignment of fees in the Order, [it] failed to
     do so, and asked [the c]ourt to adopt the recommendation of the
     [GAL. The trial court] did not provide Mother with an opportunity
     to respond because Mother did not contest the [GAL’s]
     recommendation at trial. [The court] granted Father’s Motion for
     Reconsideration as to that provision and issued an Amended
     Custody Order and Parenting Plan on February 11, 2022. The
     Amended Custody Order included that “the parties shall bear the
     costs of their respective individual sessions with [Ms.] Moran. The
     parties shall share equally in the cost of Child’s sessions.”

           On February 17, 2022, Mother filed a Motion for
     Reconsideration, asking, among other things, that [the t]rial
     [c]ourt “revert back” to the language of the October 12, 2021
     Order, requiring that the total costs of counseling be shared
     equally because Mother believed that she remembered “the
     Honorable Judge commenting to the effect of having no problem
     with all of the therapy costs being split 50/50 because the Child is
     both of theirs (the parties) and that regardless of which parent is

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      attending a session with Ms. Moran, the entire therapy is for the
      benefit of the Child and not about each individual parent receiving
      therapy.” . . .

Trial Ct. Op., 6/17/22, at 1-5 (record citations & some footnotes omitted;

some emphasis added).

      Before the trial court ruled on Mother’s reconsideration motion, Mother

filed a notice of appeal on March 14, 2022, accompanied by a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) (requiring concise statement be filed and served with notice of

appeal in children’s fast track appeal).      The trial court filed an opinion

addressing Mother’s claims on June 17, 2022.

      Mother presents the following two issues on appeal:

      1. Did the [trial c]ourt commit an error of law and/or abuse its
         discretion when it relitigated an issue it resolved by the October
         12, 2021 Order when no new facts had been established and
         Father failed to appeal that Order?

      2. Did the [trial c]ourt commit an error of law and/or abuse its
         discretion when it made Mother financially responsible for a
         greater portion and Father for a lesser portion of Child’s
         medical expenses than would be calculated by PA Child Support
         law[?]

Mother’s Brief at 5.

      Our review of a trial court’s ruling in a custody matter is well-settled:

      We review a trial court’s determination in a custody case for an
      abuse of discretion, and our scope of review is broad. Because
      we cannot make independent factual determinations, we must
      accept the findings of the trial court that are supported by the
      evidence. We defer to the trial judge regarding credibility and the
      weight of the evidence. The trial judge’s deductions or inferences
      from its factual findings, however, do not bind this Court. We may



                                      -7-
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     reject the trial court’s conclusions only if they involve an error of
     law or are unreasonable in light of its factual findings.

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (citations omitted).

     In all custody matters, the best interest of the child is “paramount.”

S.W.D., 96 A.3d at 403. Our custody statute requires a court to consider 16

enumerated factors when “ordering any form of custody[,]” and “delineate the

reasons for its [custody award] on the record in open court or in a written

opinion or order.” 23 Pa.C.S. §§ 5323(a), (d); 5328(a)(1)-(16). However, a

court need not consider and address the 16 factors when it does not “make

an award of custody, but merely modifie[s] a discrete custody-related

issue[.]” M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super. 2014). We have

explained:

     [I]t makes little sense for a trial court to analyze each of the
     sixteen 5328(a) factors when arbitrating, for example, a dispute
     over a custody-exchange location; which youth sports the children
     should play; or whether a parent should be required to have
     children's toys, beds, or other things in his or her house. Rather,
     when read as a whole, it is apparent that the § 5328(a) factors
     were designed to guide the best-interest analysis when a trial
     court is ordering which party has the right to a form of custody.


S.W.D., 96 A.3d at 403 (emphasis in original; footnote omitted). Thus, we

have not required a trial court to address the Section 5328(a) factors when

considering the following disputes between the parties: (1) “whether Father

was required to be off from work while the Children stayed with him” during




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part of the summer;5 (2) which primary school Child would attend;6 and (3)

whether to grant Mother permission for Child to receive the COVID-19

vaccination.7 The issue presented in the present appeal — how the parties

will pay for Child’s therapy sessions — is the same type of discrete custody

related issue that does not involve an “award of custody.”8 See M.O., 85 A.3d

at 1063. Thus, while the trial court was not required to consider all sixteen

factors listed in Section 5328(a) before rendering its decision, it was still

required to consider Child’s best interest in determining this dispute.      See

L.L.B., ___ A.3d at ___, 2022 WL 4362040 at *4 (citation omitted).

        Before we address Mother’s claims on appeal, we must determine if, as

the trial court proposes, Mother waived her challenge to the court’s

determination regarding the payment of Child’s therapy fees. In its opinion,

the court explained that it was “unable to make a factual finding as to how

[Ms. Moran’s] fees should be divided” following the October 12, 2021, pretrial

hearing. Trial Ct. Op., 6/17/22, at 7. Therefore, it “split the costs equally

until more information could be obtained by the [GAL,]” but clearly stated its

intention to “make a final determination” following the custody trial.       Id.

Moreover, the court pointed out that, before trial, Mother received a copy of
____________________________________________


5   M.O., 85 A.3d at 1063.

6   S.W.D., 96 A.3d at 403-04.

7   L.L.B. v. T.R.B., ___ A.3d ___, 2022 WL 4362040, *3, 5 (Pa. Super. 2022).

8   Notably, neither parent appealed the court’s revised custody schedule.


                                           -9-
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the   GAL’s   supplemental   report,    which   included   her   recommendation

concerning the division of the counseling fees. Id. at 7-8. The court further

noted that Mother did not object to the GAL’s recommendation or cross-

examine her regarding the fee issue at trial, nor did Mother present any

testimony or evidence “to suggest that she disagreed with the Court issuing

an order in line with the [GAL’s] recommendation.” Id. at 8. In fact, the

court stated: “[T]he issue of Ms. Moran’s fees was not litigated at all.” Id. at

7. Thus, it concluded Mother waived her issues on appeal. Id. at 8.

      We decline to find waiver under the circumstances presented here.

Following the pretrial hearing and the court’s October 12th order, both parties

were on notice that the issue of the division of Ms. Moran’s fees could be

revisited after the GAL spoke with Ms. Moran and obtained answers to the

court’s questions.   Further, prior to the custody trial, the GAL provided a

supplemental report which included, inter alia, Ms. Moran’s responses to the

court’s questions, and the GAL’s recommendation concerning the division of

Ms. Moran’s fees. Nonetheless, neither Mother nor Father questioned the GAL

about this issue at trial or presented any evidence or testimony as to how the

counseling fees should be divided. After the court entered its January 27,

2022, Amended Custody Order and Parenting Plan, Father moved for

reconsideration based, in part, on the fact the court did not include a

counseling fee provision in the order. See Father’s Motion for Reconsideration

of January 27, 2022 Order of Court, 2/10/22, at 5-6. The court then amended

its order to include the provision at issue without providing Mother the

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opportunity to respond.          See Amended Custody Order & Parenting Plan,

2/11/22. Based on these circumstances, we decline to find Mother waived her

objection to the counseling fees division, particularly because the issue was

not addressed by either party at the custody trial before the court amended

its order to include this provision. Accordingly, we proceed to address the

claims raised in Mother’s brief.

        Preliminarily, we note that Mother’s pro se brief purports to address ten

claims, some of which arguably fall under the rubric of the two issues raised

in her concise statement.9 See Pa.R.A.P. 1925(b)(4)(v) (“Each error identified
____________________________________________


9   Mother framed the two issues in her Rule 1925 statement as follows:

        1. Did the [trial c]ourt commit an error of law and/or abuse its
           discretion when it relitigated an issue it resolved by the October
           12, 2021 Order when no new facts had been established and
           Father failed to appeal that Order? After testimony at the
           October 12, 2021 hearing, the [c]ourt determined that
           regardless of which parent is attending a session with Ms.
           Moran, the entire therapy is for the benefit of the Child and not
           about each individual parent receiving therapy.             At the
           November 30, 2021 hearing, the [c]ourt entered Exhibit “Court
           2” in which the [GAL] confirmed that the Child is the only client.
           According to Father’s Motion of Reconsideration, the [GAL]
           later emailed the Court and called the appointments attended
           by the parents “individual” possibly leading to a
           misinterpretation that the parents were also clients. The
           Court’s subsequent granting of Father’s Motion appears to have
           been swayed by the GAL.

        2. Did the [trial c]ourt commit an error of law and/or abuse its
           discretion when it made Mother financially responsible for a
           greater portion and Father for a lesser portion of Child’s
           medical expenses than would be calculated by PA Child Support
           law? Since 2018, the Child’s therapist expenses were allocated
(Footnote Continued Next Page)


                                          - 11 -
J-A23028-22



in the Statement will be deemed to include every subsidiary issue that was

raised in the trial court[.]”).          However, Mother’s claims concerning a

“Rebuttable Presumption” the child support guidelines are reasonable and

“Father’s Forum Shopping and Deceitfulness” were not presented in her

Pa.R.A.P. 1925(a)(2)(i) statement, nor did she raise them before the trial

court. See Mother’s Brief at 23-26, 33-35. Accordingly, they are waived for

our review. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are

waived and cannot be raised for the first time on appeal.”); Yates v. Yates,

963 A.2d 535, 542 (Pa. Super. 2008) (claims not included in Rule 1925(b)

statement are waived for appellate review).

       As Mother’s argument is responsive to the trial court’s opinion, we begin

with a review of the court’s ruling. The trial court addressed Mother’s first

issue as a challenge based upon the “law of the case” doctrine and determined

that it was permitted to “revisit[ ] its own rulings” in this matter. 10 See Trial

____________________________________________


          by . . . 231 Pa. Code Rule 1910.16-6. Support Guidelines. Basic
          Support Obligation Adjustments. Additional Expenses (c)
          Unreimbursed Medical Expenses in a ratio nearly equal to
          50/50. The February 11, 2022 Order alleviates Father of his
          full responsibility under Support Law.

Mother’s Rule 1925 Statement, 3/14/22.

10 “The law of the case doctrine states that a court involved in the later phases
of a litigated matter should not reopen questions decided by another judge of
that same court or by a higher court in the earlier phases of the matter[;
however, a] trial judge may always revisit [their] own pretrial rulings[.]”
Wright v. Misty Mountain Farm, LLC, 125 A.3d 814, 818 (Pa. Super. 2015)
(citation & quotation marks omitted).


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J-A23028-22



Ct. Op., 6/17/22, at 10. Furthermore, the court found “new facts had been

established[,]” namely, the GAL submitted a supplemental report and

recommendation after speaking with Ms. Moran at the court’s direction. Id.

The court explained:

      The report was made part of the record as required by 23 Pa.C.S.
      § 5334(a)(6). We were therefore permitted to consider the report
      in our analysis and decision. Mother was free to refute the report
      in writing, as contemplated by [Section] 5334(a)(6), or to cross-
      examine [the GAL] as to her recommendations at trial.

Id.

      Moreover, while the trial court emphasized that Child is Ms. Moran’s only

patient, the billing issue arose as a result of Ms. Moran’s own billing practices:

      [T]he reality is that Ms. Moran has chosen to bill the parties
      separately for their respective “check-in” sessions. We do not
      know why Ms. Moran has chosen to do this. Maybe it is because
      that is her office policy. Maybe it is because, like this Trial Court,
      Ms. Moran believes that billing the parties separately will result in
      the bills being paid without court intervention. But neither party
      called Ms. Moran to testify and neither party asked [the GAL] any
      questions about the payments, so we cannot guess Ms. Moran’s
      motivations.

Trial Ct. Op., 6/17/22, at 11.

      Therefore, the court ultimately determined,

      [o]rdering the parties to pay their respective bills from Ms. Moran
      would be in Child’s best interest, [by] alleviat[ing] some of the
      tension between the parents, the key reason [Child] is seeing Ms.
      Moran in the first place. Neither party has an economic hardship,
      and we thoughtfully considered the parties’ respective positions
      and the position of the therapist. Eventually, we decided that not
      only was it practical for the parties to pay for their respective
      check-in sessions, but it was also in Child’s best interest as it
      allowed us to ensure that there would be no lapse in counseling
      services over a disputed bill.


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Trial Ct. Op., 6/17/22, at 11.

       With regard to Mother’s argument concerning the child support

guidelines, the court found no authority requiring it “to consider the child

support guidelines when allocating expenses” in a custody matter. Trial Ct.

Op., 6/17/22, at 11. Rather, relying on 23 Pa.C.S. § 5333(d),11 it determined

that “the allocation of payment for counseling is within the discretion of the

trial court.” Id. Moreover, the court emphasized that Mother “did not present

the Child Support Order” for the court’s consideration. Id. at 12 (emphasis

added). Rather, she simply mentioned the 49%/51% support division12 at the

October 12th pretrial hearing, “at which time Father’s counsel told her that

the Support Master had specifically exempted payments for Child’s counseling

from his Order.” Id. (footnote omitted). The court noted that Mother did not

“mention child support at the trial.” Id. Accordingly, the trial court concluded:

       [I]t considered both parties’ positions and the [GAL’s]
       recommendation, which was based off her conversation with
       Child’s counselor.     Neither party contested the [GAL’s]
       recommendation at trial, and [the court] made a decision [it]
       believed to be both practical and in the best interest of Child.

Id.

____________________________________________


11 Section 5333 provides, in relevant part, that as part of a custody order, a
court may “require the parties to attend counseling sessions[,]” and “may
order a party to pay all or part of the costs of the counseling sessions under
this section.” 23 Pa.C.S. § 5333(a), (d).

12As we will discuss infra, the record in the support matter is not before us.
However, both parties agree that Mother was ordered to pay the greater
percentage of Child’s unreimbursed medical expenses. See Mother’s Brief at
7-8; Father’s Brief at 24.

                                          - 14 -
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      In her disjointed brief - which features ten separate topic headings -

Mother purports to address both claims together.         First, her argument

concerning the court’s “relitigat[ion]” of issues previously resolved no longer

centers on the trial court’s October 12th order and the “law of the case”

doctrine; rather, she shifts her focus to prior orders issued in the parties’

support matter. See id. at 27, 29. Mother maintains that the principles of

res judicata and collateral estoppel preclude the trial court from relitigating

the “matter of Ms. Moran’s payment” which she insists was “fully and fairly

decided” in the support matter. Id. at 27-28. Moreover, she contends “Father

had the burden of proof to show that a substantial and material change of

circumstances occurred between December 15, 2021[, when the last support

order was issued, and] February 22, 2022[,]” when the trial court entered the

amended order at issue herein. Id. at 30. She maintains that the trial court

should have “looked at the corresponding [support] docket within its own

courthouse” and applied the support guideline ratio of a 51%/49% split “to

apportion the [therapy] costs between them.” Id. at 31. Mother rejects the

trial court’s determination that it had the authority to apportion the costs of

the counseling sessions pursuant to 23 Pa.C.S. § 5333(d), because the

sessions were for the benefit of Child, not the parent parties. See id. at 22-

23.

      Mother also maintains the trial court made unsubstantiated factual

determinations to support its ruling that the apportionment of therapy costs

was in Child’s best interest, namely, its finding that “there would be a lapse

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in counseling services over a disputed bill.”       See Mother’s Brief at 37.

Although the trial court stated it intended to “alleviate tensions” between the

parties, Mother argues that “by deviating from the child support order, [the

court] made the tension worse, not better.”        Id. at 39.    Lastly, Mother

maintains the court’s grant of Father’s motion for reconsideration was based

on information not in evidence; in particular, an email the GAL sent to the trial

court’s law clerk, after the November 30th trial, concerning her conversation

with Ms. Moran. See id. at 42.

        Upon our review of the parties’ briefs, the trial court opinion, and the

certified record on appeal, we conclude Mother is entitled to no relief.

        First, to the extent Mother asserts the trial court had no authority to

revisit its October 12, 2021, order, which apportioned Ms. Moran’s bills “fifty-

fifty” between the parties,13 we conclude she is simply wrong. A review of the

transcript from the pretrial hearing, as well as the court’s order, reveals the

court’s October 12th ruling was a temporary fix — designed to ensure that

Child’s therapy continued — until the GAL had the opportunity to ask Ms.

Moran the court’s questions. See N.T., 10/12/21, at 23 (court stating, “[u]ntil

the new [custody] plan, we are going to do 50/50”), 26 (court directing the

GAL to ask Ms. Moran two questions regarding therapy sessions); Order,

10/12/21 (“Any healthcare expenses incurred from [Ms.] Moran . . . will be




____________________________________________


13   See Order, 10/12/21.

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J-A23028-22



split fifty-fifty until further Order of Court[.]”). Thus, the parties were fully

aware the October 12th order did not constitute a final decision on this issue.

      As noted supra, however, Mother has changed her argument on appeal.

While she concedes “[t]he law of the case doctrine does not apply in this

case[,]” she argues that the principles of res judicata or collateral estoppel

preclude the trial court from relitigating prior support orders which decided

that “all of Child’s medical expenses were to be apportioned between the

parties on the basis of their income.” See Mother’s Brief at 29-30. Mother’s

claim fails because the child support orders are not included in the certified

record on appeal.     Indeed, the support matter was conducted before a

different court under a separate docket. Although Mother included copies of

several of the domestic relations support orders and the support master’s

reports and recommendations in her reproduced record, none of these

documents were presented to the trial court, and, consequently, none are

included in the certified record on appeal. Thus, we may not consider them.

As this Court has explained:

      [We] may review and consider only items which have been duly
      certified in the record on appeal. Furthermore, a document not
      filed of record does not become part of the certified record by
      merely making a reproduction and placing that reproduction in the
      reproduced record. For purposes of appellate review, what is not
      of record does not exist.

Rosselli v. Rosselli, 750 A.2d 355, 359 (Pa. Super. 2000) (citations

omitted).




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J-A23028-22



       Furthermore, Mother provides no authority for her claim that the trial

court should have “looked at the corresponding [support] docket within its

own courthouse” before apportioning Child’s therapy costs. See Mother’s Brief

at 31. We remind Mother that it was her attorney who requested the court

in the custody action enter an order “directing how the parties are supposed

to pay for the therapist.” See N.T., 10/12/21, at 7. Counsel advised: “[I]t

has been pursuant to the ratio that had been used before, 51/49, and then it

was 50/50, and now there is a problem with that[, s]o we need something

written, directives, explaining how that’s supposed to go.”         Id. at 7-8.

Notably, neither Mother nor her attorney requested the court to issue an order

consistent with the support order. As noted by the trial court, while Mother

mentioned the support order division at the pretrial hearing,14 Father’s

attorney then stated that the “Support Master excluded the sessions that were

specifically [Mother’s] appointments and specifically [Father’s] appointments,

and allocated [C]hild’s apportionments between the two parties by the

percentage of their income.”          Id. at 17.   If Mother disagreed with this



____________________________________________


14Mother also argued that “this entire therapy is for” Child, and the “support
order clearly says that we should do those expenses[.]” N.T., 10/12/21, at
10. She asserted that the support master separated the therapy costs from
Father’s monthly support obligation because it was difficult to keep track of
when an appointment was missed. See id. at 10-11. However, she stated
that she was supposed to give Father “the expenses, and then it [would be]
paid out 49/51.” Id. at 11. Again, however, neither Mother nor her attorney
suggested this matter should be addressed by the support master.


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J-A23028-22



statement, it was incumbent upon her to respond and introduce into evidence

the support master’s recommendation. This she failed to do.

      Indeed, Mother, herself, put the issue of payment for counseling before

the custody trial court. Thus, we agree the trial court had the authority to

determine how to apportion the cost of that counseling pursuant to 23 Pa.C.S.

§ 5333(d). Although Mother insists Section 5333 applies only when the court

directs the parents to attend counseling, we disagree. See Mother’s Brief at

23. Indeed, Mother’s only objection focuses on the portion of the court’s order

directing her to pay for her individual sessions with Ms. Moran because,

she asserts, “the individual session are all part of Child’s counseling.” Id.

(emphasis in original). While that is true, the court’s apportionment applied

only to the sessions with each individual parent; the court determined that

the sessions with Child would be split evenly.     Thus, pursuant to Section

5333(d), the court had the discretion to direct each parent to pay for their

own individual “counseling” sessions.

      Finally, with regard to Mother’s claim that the trial court relied upon

facts not in evidence, we conclude she is, again, mistaken. First, the trial

court’s concern that there might be a lapse in counseling services over a

disputed bill is supported by the record. At the October 12th pretrial hearing,

Mother, herself, stated that she paid Ms. Moran’s “entire September [2021]

bill in full” so as to “prevent [Child] from being delayed from therapy” over

the payment issues. N.T., 10/12/21, at 15. Based on her discussions with

Ms. Moran, the GAL agreed that the counselor “doesn’t want to proceed until

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J-A23028-22



[they] have [the billing situation] resolved.” Id. at 19. Furthermore, during

the November 18th custody trial, Mother again asserted that “[t]herapy . . .

almost stopped a month ago because” she wanted to split the counseling fees

“50/50.”     N.T., 11/18/21, at 190.      She insisted:   “We almost didn’t have

[Child] in therapy.” Id. Thus, the court’s concern was valid, and based on

testimony in the record.

       Moreover, Mother’s reference to the court’s reliance on matters not in

evidence — particularly an email from the GAL to the trial court’s law clerk —

is a red herring. The email, which was copied to both attorneys of record, was

attached as Exhibit E to Father’s Motion for Reconsideration. The GAL told the

trial court’s law clerk that she “forgot to ask if the Court will resolve payment

issue with [Ms.] Moran[.]” See Father’s Motion for Reconsideration, Exhibit

E, Email from [GAL] to Erica Ernst, dated 12/16/21. The GAL then reiterated

the same information and recommendation she provided in her November

11, 2021, supplemental report — that Ms. Moran intended to bill each parent

separately for their individual appointments, and the GAL’s recommendation

that   the    parties’   “split   any   unreimbursed   expenses   from   [Child’s]

appointments and pay for their own individual appointments.” Id. See also

November 11, 2021, Supplemental GAL Report, at 1-2 (unpaginated). Thus,

the trial court amended its custody order based on information it received

during the custody trial, via the GAL’s supplemental report, and not on

information provided by the GAL after the trial concluded.




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      Accordingly, because Mother has provided us with no basis to disturb

the trial court’s ruling, she is entitled to no relief.

      Order affirmed.     Father’s Application for a Motion to Strike Mother’s

Counter Argument is denied as moot.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2022




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