           Case: 19-10455   Date Filed: 11/27/2019   Page: 1 of 16

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10455
                         Non-Argument Calendar
                       ________________________

                     D.C. Docket No. 0:18-cv-62522-UU

TANYA LEBEDINSKY,

                                                      Plaintiff - Appellant,
                                  versus

MSC CRUISES, S.A.,

                                                      Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (November 27, 2019)

Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:
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      Tanya Lebedinsky appeals the district court’s grant of MSC Cruises, S.A.’s

motion to dismiss for improper venue. On appeal, Lebedinsky argues that the

district court erred when it ruled that the forum selection clause contained in MSC

Cruises’ contractual terms and conditions was enforceable, requiring her to bring

her lawsuit in Italian court. After careful review, we affirm the district court’s

dismissal.

                               I.      BACKGROUND

A.    Factual Background

      Lebedinsky took a cruise aboard the MSC Musica, beginning and ending in

Venice, Italy, with intermediate stops in Italy, Greece, and Montenegro.

Lebedinsky’s daughter purchased the ticket for her mother through an online ticket

agent. Lebedinsky’s involvement was limited to payment; she does not recall

reviewing confirmation documents for the trip. She does not dispute that she

received the documents, however. While on the cruise, Lebedinsky fell, resulting

in a host of serious injuries. She was medically disembarked to an Italian hospital

and then flown to a New York hospital where she continued to receive treatment.

      MSC Cruises issued a Booking Confirmation to Lebedinsky five months

prior to the start of her voyage and again to her travel agent days prior to the

voyage. The Booking Confirmation contained a “Booking Terms and Conditions”

section, under the heading “IMPORTANT INFORMATION”:

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      Booking Terms and Conditions
      The present booking is regulated by the Booking Terms and
      Conditions. Passengers acknowledge that they have received a copy,
      read and accepted the Booking Terms and Conditions before
      confirming their booking. A copy of the Standard Booking Terms and
      Conditions [] is also available on our website www.msccruises.com.
      Changes and cancellations are subject to penalties according to the
      Booking Terms and Conditions.

Doc. 9-3 at 10. 1 The Booking Terms and Conditions were on the same page as

other important information such as when final payments were due, what charges

applied to cancellation requests, and what travel documents were required to board

the cruise.

      Following the link in the Booking Terms and Conditions led to MSC

Cruises’ website home page. A link at the bottom of the home page led to the

“Terms and Conditions” governing MSC Musica’s voyage. On the Terms and

Conditions page, there was the following notice:

      NOTICE TO PASSENGER: Below and attached to your Boarding
      Coupon, Passenger Ticket and (if contracted) Transfer Voucher are
      the terms and conditions of the Passenger Contract. Before accepting
      them, carefully read all the terms of the following Passenger Contract
      which contains important conditions and limitations including
      Clauses 20 to 26 which set out some of our rights, limitations of
      liability, court jurisdiction and time limits to file claims or to bring
      suit.

Id. at 18 (“Passenger Notice”) (emphasis added). Directly below the Passenger

Notice was a “Passenger Contract” paragraph:

      1
          “Doc. #” refers to the numbered entry on the district court’s docket.

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      PASSENGER CONTRACT: Carefully read all terms and conditions
      before accepting them. Clauses 20 to 26 set out your rights and
      limitations to make claims. Please retain this document for future
      reference. TO REVIEW THE PASS[ENGER] CONTRACT CLICK
      HERE.

Id. at 18 (emphasis added). Clicking on the link within the phrase “TO REVIEW

THE PASS[ENGER] CONTRACT CLICK HERE,” led to all the provisions

within the Passenger Contract.

      An “Applicable Law” section in the Passenger Contract contained a forum

selection clause stating that “[f]or Voyages that do not include a port in [the]

U.S.A., all claims arising out of this Contract or relating to or arising from this

Contract or your cruise shall be brought in and be subject to the exclusive

jurisdiction of the Courts of Naples, Italy.” Id. at 19-20. The “Jurisdiction”

section further noted that “[u]nless differently provided by any applicable law, []

all claims against [MSC Cruises] shall be brought in and be subject to the

exclusive jurisdiction of the Courts of Naples, Italy.” Id. at 24.

      The Passenger Contract also included Conditions of Carriage governing the

voyage on MSC Musica:

      CONDITIONS OF CARRIAGE

      Standard conditions of carriage

      These Conditions of Carriage set out the terms that govern the
      relationship, responsibilities and liabilities as between the Passenger
      and the Carrier and are BINDING ON THE PARTIES.
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       The Passenger has entered into a Passage Contract with an Organizer
       and these conditions have been incorporated into the Passenger’s
       contract with the Organizer. These Terms and Conditions of Carriage
       will also apply where the Vessel is being used as a floating hotel
       whether or not there is a Passage Contract and whether or not there is
       any carriage.

       You must carefully read these conditions of carriage which set out
       your rights, responsibilities and limitations to make claims against the
       Carrier, its servants and/or agents. The Carrier’s liability is limited as
       set out in Clauses 22 and 23.

Doc. 9-2 at 2. Under the “Liability” section of the Conditions of Carriage, MSC

Cruises expressly incorporated the Athens Convention, an international treaty

governing the carriage by sea of passengers and their luggage. Here, MSC Cruises

noted that “[t]he liability of the Carrier for death, personal injury or illness to the

Passenger shall not exceed 46,666 Special Drawing Rights (“SDR”)[2] as provided

and defined in the Athens Convention.” Appellant Br., Addendum 1 at 39-40.

       We refer to the Booking Terms and Conditions, the Passenger Contract, and

the Conditions of Carriage on MSC Cruises’ website collectively as the “terms and

conditions.”

       2
         An SDR is an artificial currency instrument created by the International Monetary Fund
(“IMF”), which uses SDRs for internal accounting purposes. The SDR serves as the unit of
account of the IMF and some other international organizations. Special Drawing Right,
International Monetary Fund (Mar. 8, 2019), https://www.imf.org/en/About/Factsheets/Sheets/
2016/08/01/14/51/Special-Drawing-Right-SDR (last visited Nov. 19, 2019).

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B.    Procedural Background

      Lebedinsky filed a lawsuit against MSC Cruises in the United States District

Court for the Southern District of Florida. MSC Cruises moved to dismiss for

improper venue and on forum non conveniens grounds. The district court granted

the motion, concluding that the forum selection clause required Lebedinsky to

bring her lawsuit in Italy. This appeal followed.

                        II.   STANDARD OF REVIEW

      We review de novo a district court’s dismissal based on a forum selection

clause in an international agreement. Lipcon v. Underwriters at Lloyd’s, London,

148 F.3d 1285, 1290-91 (11th Cir. 1998).

                               III.   DISCUSSION

       Forum selection clauses are presumptively valid and enforceable unless the

plaintiff makes a “strong showing” that enforcement would be unfair or

unreasonable under the circumstances. Krenkel v. Kerzner Int’l Hotels Ltd., 579

F.3d 1279, 1281 (11th Cir. 2009) (citing Carnival Cruise Lines, Inc. v. Shute, 499

U.S. 585, 593–95 (1991); M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10

(1972)). A forum selection clause will be invalidated when: “(1) its formation was

induced by fraud or overreaching; (2) the plaintiff would be deprived of [her] day

in court because of inconvenience or unfairness; (3) the chosen law would deprive

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the plaintiff of a remedy; or (4) enforcement of the clause would contravene public

policy.” Id.

      On appeal, Lebedinsky argues that the district court erred in concluding that

the forum selection clause was valid and enforceable because: (1) the forum

selection clause was induced by overreaching because it was not reasonably

communicated to passengers, (2) the invocation of the Athens Convention

contravenes public policy and would effectively deprive her of a remedy, and (3)

circumstances, including her injuries and her treatment in New York, make Naples,

Italy an inconvenient forum. We address these arguments in turn.

A.    The Forum Selection Clause’s Formation Was Not Induced by Fraud or
      Overreaching.

      Lebedinsky argues that the terms and conditions, including the forum

selection clause, were not reasonably communicated because MSC Cruises did not

include a sufficiently prominent warning about the content of the terms and

conditions nor did it present them in a clear enough manner.

      We apply a two-part test of “reasonable communicativeness” when

determining whether a forum selection clause was induced by fraud or

overreaching, considering (1) the clause’s physical characteristics and (2) whether

the plaintiffs had the ability to become meaningfully informed of the clause and to

reject its terms. Id.; see also Estate of Myhra v. Royal Caribbean Cruises, Ltd.,

695 F.3d 1233, 1244–46 (11th Cir. 2012), superseded on other grounds as
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recognized by Caron v. NCL (Bahamas) Ltd., 910 F.3d 1359 (11th Cir. 2018)

(applying the two-part “reasonable communicativeness” test). MSC Cruises’

forum selection clause satisfies both prongs.

      1.     The Clause’s Physical Characteristics

      Lebedinsky contends that MSC Cruises’ forum selection clause failed the

physical characteristics prong because the clause lacked “clarity in plain language”

and the information MSC Cruises provided did not “conspicuously call attention”

to the forum selection clause. Appellant Br. at 23, 25. To satisfy this prong,

however, it is enough that the forum selection clause was clearly set out and

contained clear language. MSC Cruises’ forum selection clause met these criteria.

      The placement and appearance of MSC Cruises’ forum selection clause were

like the clause in Estate of Myhra, which we held satisfied the physical

characteristics prong. See 695 F.3d at 1244–45. There, the forum selection

language was included near the bottom of a “Booking Conditions” section, which

appeared on page 128 of a cruise line’s “obviously lengthy booklet.” Id. at 1244.

The forum selection language was set out in identical type as the rest of the

conditions but under “clear plain-English headings.” Id. at 1245. In this case, the

passenger was required to follow two hyperlinks and then scroll down to locate the

forum selection clause; we find no meaningful difference between doing so and

paging through a booklet. And because the forum selection language in MSC

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Cruises’ terms and conditions had the same characteristics—set out in identical

typeface under clear headings—it satisfied the physical characteristics prong. See

id.

      2.     Lebedinsky’s Opportunity to Become Meaningfully Informed of
             the Clause

      The second prong of the “reasonably communicated” test asks whether a

plaintiff had the ability to “become meaningfully informed of the clause and reject

its terms.” Krenkel, 579 F.3d at 1281. Citing Wallis v. Princess Cruises, Inc. as

support, Lebedinsky contends that MSC Cruises failed to “meaningfully inform”

her of the relevant terms and conditions, including the forum selection clause,

because a layperson could not understand the implications of the inclusion of the

Athens Convention in the limitations of liability provisions. See 306 F.3d 827,

836–37 (9th Cir. 2002). This argument fails for two reasons. First, Lebedinsky

impermissibly shifts the focus of the “meaningfully inform” inquiry from the

forum selection clause to the terms and conditions in their totality. See Krenkel,

579 F.3d at 1281 (“A useful two-part test of ‘reasonable communicativeness’ takes

into account . . . whether the plaintiff[] had the ability to become meaningfully

informed of the [forum selection] clause and to reject its terms” (emphasis added)).

Second, the court in Wallis was examining a more complex provision than the one

found here. See 306 F.3d at 830, 836–37. The limitation of liability provision in

Wallis required the passenger to reference and interpret several outside sources to
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fully understand its implications. The court held that a layperson could not be

expected to fully understand the provision and, therefore, it was not reasonably

communicated to the passengers. Id. But, here, the forum selection clause’s

language is clear and unambiguous, requiring that all claims be brought in Italian

court if, like the MSC Musica, the cruise ship did not enter a United States port.

Therefore, Wallis is inapposite.

      Unlike in Wallis, in this case Lebedinsky had the opportunity to become

meaningfully informed of the forum selection clause. Both Lebedinsky and her

travel agent were given the Booking Confirmation with a notice regarding the

Booking Terms and Conditions, which contained a link to MSC Cruises’ website,

where the terms and conditions, including the forum selection clause, could be

found. Lebedinsky does not dispute receipt of the Booking Confirmation over five

months before the cruise. And the language of the forum selection clause

unambiguously stated that claims arising out of the voyage on MSC Musica had to

be brought in Italy. Therefore, Lebedinsky had the time and opportunity to

become meaningfully informed of the forum selection clause. See id.; see also

Vanderham v. Brookfield Asset Mgmt., Inc., 102 F. Supp. 3d 1315, 1319–20 (S.D.

Fla. 2015) (concluding that plaintiff was meaningfully informed when sent an

email with a link containing information regarding forum selection clause).

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       MSC Cruises’ forum selection language satisfies the two-part test of

“reasonable communicativeness” and, therefore, was not induced by fraud or

overreaching.

B.     The Forum Selection Clause Does Not Deprive Lebedinsky of Her Day
       in Court Because of Inconvenience or Unfairness.

       A forum selection clause can be unreasonable—and therefore

unenforceable—“if the chosen forum is seriously inconvenient for the trial of the

action.” M/S Bremen, 407 U.S. at 16. When the parties to an agreement

“contemplated the claimed inconvenience,” however, a court requires “a heavy

burden of proof” to render a forum selection clause unenforceable. Id. at 16-17.

Lebedinsky has not met that burden.

       Lebedinsky contends that circumstances—including the continued pain she

suffered in the United States from her injury, her treatment in New York, fact

witnesses located in New York, and MSC Cruises’ connection to the United

States 3— render the forum selection clause so inconvenient that it is

unenforceable. But these circumstances are not the type of uncontemplated

inconveniences that justify the invalidation of a forum selection clause. See id. at

16.

       3
          Lebedinsky characterizes MSC Cruises as a “U.S. headquartered company.” Appellant
Br. at 32. MSC Cruises disputes that it is headquartered in the United States. We do not resolve
this factual dispute because it does not affect our determination that the forum selection language
binds Lebedinsky.

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       The MSC Musica did not travel to any United States port of call; its journey

began and ended in Italy with stops in other European ports. Italy, therefore, is not

a remote alien forum for this dispute. Instead, Italy is the forum where a dispute

relevant to voyage on the MSC Musica would most likely arise. That Lebedinsky’s

injury was treated in New York does not change that fact; an injury taking place on

the MSC Musica is exactly the “particular controversy [the parties had] in mind”

when they selected Italy as a forum. Id. at 17.

       We are sympathetic to Lebedinsky’s injuries, but “whatever inconvenience

[she] would suffer by being forced to litigate in the contractual forum as [she]

agreed to do was clearly foreseeable at the time of contracting.” Id. at 17-18

(internal quotation marks omitted). The enforcement of the forum selection clause

thus does not deprive Lebedinsky her day in court due to inconvenience.

C.     Italian Law Would Not Deprive Lebedinsky of a Remedy.

       Lebedinsky asserts that she has incurred approximately $750,000 in

damages, and due to MSC Cruises’ invocation of the Athens Convention and its

liability limitations, Italian courts offer essentially no remedy. Even if we assume

that the Italian court would apply the Athens Convention, 4 Lebedinsky would not

be deprived of a remedy.

       4
          See Estate of Myhra, 695 F.3d at 1243 (“[A] choice-of-forum clause merely directs the
litigation to a particular forum, usually one with a significant connection with the incident or
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       MSC Cruises’ terms and conditions limit liability pursuant to the Athens

Convention for voyages where the cruise ship embarks or disembarks from a

country in the European Union, as MSC Musica did. The Athens Convention

states: “The liability of the carrier for the death of or personal injury to a

passenger shall in no case exceed 46,666 [SDR] per carriage.” Athens Convention

Relating to the Carriage of Passengers and Their Luggage by Sea, art. 7, Nov. 19,

1976, 1463 U.N.T.S. 19. Thus, assuming without deciding that the Athens

Convention would be applied, it would appear to limit Lebedinsky’s recovery to

46,666 SDRs, or approximately $64,000,5 well short of the $750,000 in damages

that Lebedinsky claims to have incurred. But the potential for decreased recovery

is not the same as no remedy.

       This Court does not invalidate a forum selection clause “simply because the

remedies available in the contractually chosen forum are less favorable than those

available in the courts of the United States.” Lipcon, 148 F.3d at 1297. Only

remedies that are “so inadequate that enforcement would be fundamentally unfair”

render a chosen forum inadequate. Id.; see also Riley v. Kingsley Underwriting

Agencies, 969 F.2d 953, 958 (10th Cir. 2002) (“The fact that an international

transaction may be subject to laws and remedies different and less favorable than

with the parties, for adjudication.”). A forum selection clause does not mandate what substantive
law applies; the jurisdiction where a case is heard makes that determination.
       5
         Conversion rates for SDRs to U.S. dollars can be found at https://www.imf.org/external/
np/fin/data/rms_sdrv.aspx.

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those of the United States is not a valid basis to deny enforcement, provided that

the law of the chosen forum is not inherently unfair.”). We acknowledge that there

may be a point at which a reduced recovery dictated by the law of a chosen forum

is so low relative to the plaintiff’s damages as to render the choice of forum

fundamentally unfair. But here, the possibility of reduced recovery does not

amount to fundamental unfairness, and the potential application of the Athens

Convention cannot justify the forum selection clause’s invalidation. See Lipcon,

148 F.3d at 1297.

      Lebedinsky offers no other argument as to the inadequacy of Italy as a

forum. Therefore, she has not shown that Italy as a forum would deprive her of a

remedy.

D.    Enforcement of the Forum Selection Clause Would Not Contravene
      Public Policy.

      Lebedinsky contends that there is a strong public policy contained within the

United States’ “general maritime law that opposes carrier limits on passenger

liability for negligence,” evidenced by Congress’s passage of 46 U.S.C. § 30509

prohibiting the owner of a ship that travels between ports in the U.S. and a port in a

foreign country from limiting its liability to passengers. Appellant Br. at 19. For

this argument, too, she assumes that enforcement of the forum selection clause

would likely result in application of the Athens Convention. Because the Athens

Convention limits liability for negligence, she argues that its application would
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contravene public policy. This Court has previously rejected the argument that

where enforcing a forum clause would effect a limitation of liability, public policy

bans enforcement of the clause. See Estate of Myhra, 695 F.3d at 1242-43.

      Specifically, in Estate of Myhra, we addressed the questions of “whether the

use of a forum-selection clause that selects venue where domestic law, if

applicable, would effect a limitation of liability should be considered within the

ambit of [§ 30509’s] prohibition,” and “whether such a prohibition constitutes a

sufficiently strong public policy of the United States to bar enforcement of the

clause.” Id. at 1242. We answered both questions in the negative. See id. at 1243.

      Further, as explained in Estate of Myhra, Congress’s opposition to liability

limitation provisions “was to forbid the unilateral imposition of a limitation of

liability by a ship owner without any recourse to judicial process.” Id. (emphasis

added). This policy concern does not extend to forum selection clauses because

forum selection clauses merely direct a dispute to a particular jurisdiction. “[I]t is

clear that Congress understood that the usual rules of jurisdiction and choice of law

would produce, in some instances, a limitation on liability.” Id. Applying the

reasoning we employed in Estate of Myhra, MSC Cruises’ forum selection clause

would not contravene public policy.

      Accordingly, MSC Cruises’ forum selection clause (1) was not induced by

fraud or overreaching, (2) would not deprive Lebedinsky of her day in court, (3)

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would not deprive her of a remedy, and (4) did not contravene public policy.

Lebedinsky therefore has not made a “strong showing” that its enforcement would

be unfair or unreasonable under the circumstances. Krenkel, 579 F.3d at 1281.

Lebedinsky may bring suit for redress of her injuries only in an Italian court,

consistent with the terms of the forum selection clause.

                              IV.    CONCLUSION

      For the foregoing reasons, we affirm the district court’s grant of MCS

Cruises’ motion to dismiss.

      AFFIRMED.

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335 Mich. 212 (1952)
55 N.W.2d 801
In re PRYOR.
Calendar No. 45,410.
Supreme Court of Michigan.
Writ dismissed December 9, 1952.
*214 Guerra & Vogel, for petitioner.
Frank G. Millard, Attorney General, Delmar L. Cleland, Prosecuting Attorney, and William J. Ash and Stanley C. Schlee, Assistant Prosecuting Attorneys, for the people.
REID, J.
Petitioner Gordon Pryor, father of Ronald Pryor, filed his petition in this Court in behalf of Ronald Pryor, detained in the State prison under custody of the State hospital commission, for a writ of habeas corpus and ancillary writ of certiorari, seeking the release of Ronald Pryor from custody.
On November 18, 1949, Ronald Pryor was arrested on a criminal warrant issued by a justice of the peace. The warrant recited the charge against Pryor as follows:
"That Ronald Pryor, late of the city of Port Huron, county of St. Clair and State of Michigan, did accost, entice, and solicit one Norma French, a female child under the age of 16 years, to-wit: Of the age of 12 years, with the intent to induce the said child to commit an immoral act; contrary to CL 1948, § 750.145a (Stat Ann 1949 Cum Supp § 28.341)."
Upon the prisoner being brought before the justice, his right to retain counsel and to a preliminary examination was explained to him; he waived examination, and was committed to the circuit court for trial. On November 21, 1949, a criminal information alleging the commission of an offense in the wording of the warrant was filed in the circuit court; *215 the prisoner was arraigned thereon and stood mute. Thereafter and on the same day, November 21, 1949, a petition was filed with the circuit court by the prosecuting attorney praying that the court order an examination of the prisoner with a view toward determining whether or not he was a criminal sexual psychopathic person. The facts on which the petition is based are alleged in the petition as follows:
"That petitioner has been informed and has good reason to believe that Ronald Pryor is a criminal sexual psychopathic [person] as defined in CL 1948, § 780.501 (Stat Ann 1947 Cum Supp § 28.967 [1]). That petitioner, as prosecuting attorney of St. Clair county, Michigan, knows of his own knowledge that defendant was involved in a sex offense on August 3, 1948, and was found guilty by jury trial on October 21, 1948; that said Ronald Pryor has been examined within the past few months by a psychiatrist, who advised the court that the said defendant is a criminal sexual psychopath and definitely required psychiatric aid. Petitioner further states that defendant's continued association with society would be dangerous."
On the same day that the petition was filed, November 21, 1949, the court appointed Loyall Watson, a member of the St. Clair county bar, as attorney for the prisoner, and said attorney thereafter received service of process on behalf of the prisoner and appeared for him on the hearing had before the circuit court on September 1, 1950. Apparently the defendant Ronald Pryor was released on a thousand dollar cash bail, November 23, 1949. However, it appears that on August 14, 1950, he was in jail and was permitted by the order of the court to be transported for the purpose of examination to the Pontiac State hospital.
On September 1, 1950, a hearing was had on the matter of the alleged criminal sexual psychopathy *216 of the respondent Ronald Pryor. The attorney acting on behalf of Ronald Pryor waived notice of hearing, waived jury trial and a presentation of evidence and consented to his commitment. It appears that respondent Ronald Pryor and his father, now the petitioner for his release, both also consented to the determination by the court. A report of examination was filed on December 15, 1949, signed by Drs. Wagley and Willis. This report was, in effect, offered in evidence by respondent's attorney. Watson, on the hearing, though those 2 doctors were not appointed by the court. Mr. Watson, on the hearing, referred to the report of Drs. Wagley and Willis as though establishing the criminal sexual psychopathy of respondent Pryor. The court, on November 21, 1949, had appointed Dr. Herbert Schmale and Dr. R.M. Patterson, 2 reputable physicians, to examine the prisoner. The answer of the prosecuting attorney states that Drs. Schmale and Patterson are regularly practising psychiatrists, which allegation is undenied. The original report by Drs. Schmale and Patterson is now missing from the files, but a copy of their report was ordered by the court to be filed as of December 15, 1949, as a substitute for the original report.
Petitioner Gordon Pryor questions the sufficiency of the statement of facts as set forth in the prosecuting attorney's petition, hereinbefore quoted. As to such petition, CL 1948, § 780.503 (Stat Ann 1951 Cum Supp § 28.967 [3]), requires:
"A statement in writing setting forth facts tending to show that such person is a criminal sexual psychopathic person."
The petition of the prosecuting attorney referred to the charge contained in the complaint (a sex offense against an under-age girl) and set forth the conviction on October 21, 1948, of a previous sex *217 offense. This is a sufficient compliance with the statutory requirements, as to statement of facts. Petitioner Gordon Pryor cites In re Kelmar, 323 Mich 511, in which case, however, it was alleged that Kelmar had been accused of an offense, not that Kelmar had been convicted. In the instant case, Pryor had been convicted of a previous offense indicative of sex deviation.
We disregard the allegation in the petition of the prosecuting attorney that a psychiatrist who had examined Pryor, reported that Pryor was a criminal sexual psychopathic person. It amounted, in the petition, to nothing more than hearsay. The opinion of Justice DETHMERS, in Re Fidrych, 331 Mich 485, 488, referring to opinions filed in that case, recites, "Such opinions do not satisfy the statutory requirements in this connection."
The petitioner, Gordon Pryor, claims the determination invalid as founded on waiver only. However, respondent's father (petitioner), the respondent himself and his attorney Watson, all made statements on the hearing before the court indicative of respondent's actual criminal sexual psychopathy, in addition to which there was a formal waiver of proof.
The certificates of the 2 court-appointed psychiatrists were before the court at the hearing. The originals had disappeared from the court files, but the order nunc pro tunc directed the filing of copies of such certificates as of December 15, 1949. The order nunc pro tunc seems to be based upon the affidavit of Loyall Watson, the attorney for respondent Ronald Pryor, the affidavit of Marion Zweidorff that she prepared the copy from the original report of Drs. Schmale and Patterson, and also the sworn petition of Delmar L. Cleland, the prosecuting attorney. No showing is made by plaintiff nor defect of record pointed out, to indicate that the order *218 nunc pro tunc was without sufficient foundation or reason.
Petitioner Pryor claims insufficient the certificates of the 2 court-appointed psychiatrists, Drs. Schmale and Patterson, on the ground that no facts are therein incorporated. Their report, dated November 30, 1949, sworn to December 1, 1949, besides reciting their opinion that respondent is a criminal sexual psychopathic person among other things contains the following:
"Physical examination shows sears on the inner aspects of his thighs which the patient claims that he does not know how they were acquired and feels that perhaps something `has been done to me sexually.'
"Past history was obtained from the patient. * * * The patient's sexual adjustment has been marked by difficulties in heterosexual relationships, characterized largely by premature ejaculation. His orientation has always been a very infantile and immature one. * * *
"The patient speaks of the episodes on which the present charges are based quite frankly. He states that he never has actually done more than hold these girls very close to his body. He admits, however, to having strong phantasies and desires in regard to girls of 10 or 12 years of age. This is largely in keeping with his own immature personality orientation."
The subjection to "strong phantasies and desires in regards to girls of 10 or 12 years of age" is to be considered as an admission by respondent of subjective symptoms, not the mere conclusion of the examiners. We think the report contains sufficient facts on which to base the conclusion of sexual psychopathy.
The record contains a transcript of the proceedings before the trial court.
*219 The calendar of the circuit record contains the following:
"Dec. 8 [1949] Motion to reduce charge to `assault and battery' came on to be heard. After due consideration motion granted.
"Dec. 8 Plead guilty to charge of `assault & battery.'
"Dec. 8 Former charge of accosting child for immoral purposes dismissed.
"Dec. 9 Motion to add count of assault & battery reconsidered and motion denied. Motion to dismiss count of accosting & soliciting child for immoral purposes reconsidered and denied."
The attorney for Gordon Pryor, petitioner, claims that by reason of the entries of the calendar just quoted, the circuit court for the county of St. Clair has exhausted its jurisdiction.
The calendar entries do not disclose any judgment or sentence of the circuit court upon the plea of guilty of assault and battery. The court in the instant case had jurisdiction. See People v. Piasecki, 333 Mich 122, at page 141.
The statements of the respondent Pryor, of his father and of his attorney, together with the report of the court-appointed psychiatrists, were sufficient for the court's determination of respondent Pryor's criminal sexual psychopathy.
The habeas corpus proceedings herein are dismissed and respondent Pryor is ordered returned to the custody of the department of mental health of the State of Michigan, successor to the State hospital commission.
ADAMS, C.J., and DETHMERS, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred with REID, J.
BOYLES, J., concurred in the result.


J-A21045-16

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

G.A.,                                       :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                     Appellant              :
                                            :
              v.                            :
                                            :
J.S.,                                       :
                                            :
                     Appellee               :            No. 860 EDA 2016

                       Appeal from the Order February 10, 2016
                   in the Court of Common Pleas of Bucks County,
                       Civil Division, No(s): A06-06-61075-C-32

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 03, 2016

        G.A. (“Father”) appeals from the Order granting sole legal and primary

physical custody of S.A. (“Child”), d/o/b 7/25/05, to J.S. (“Mother”), and

directing Father to pay $73,150.00 to Mother in counsel fees. We affirm.

        The trial court has set forth an extensive factual and procedural history

in its Opinion, which we adopt for the purpose of this appeal.         See Trial

Court Opinion, 3/28/16, at 1-8.

        Relevantly, Father and Mother, who never married, are the natural

parents of Child. In March 2006, Father filed a Custody Complaint seeking

primary physical custody of Child. On July 1, 2008, the trial court entered

an Order granting Father and Mother shared legal and physical custody of

Child. On April 29, 2009, Father filed a Petition for Modification of Custody.

Following a custody evaluation and sixteen hearings, the trial court entered
J-A21045-16

a Custody Order granting Mother sole legal custody and primary physical

custody, and Father partial physical custody every second and fourth

weekend. The Order also granted Mother custody of Child on most Jewish

holidays and Father custody of Child on most Christian holidays. The trial

court additionally ordered Father to pay $73,150.00 in counsel fees within

90 days of the Order.

     Father filed a timely Notice of Appeal and a Pennsylvania Rule of

Appellate Procedure 1925(b) Concise Statement.

     On appeal, Father raises the following questions for our review:

     1. Did the trial court commit an abuse of discretion or error of
        law when it awarded sole legal custody of [Child] to [Mother]?

     2. Did the trial court commit an abuse of discretion or error of
        law when it awarded primary physical custody of [Child] to
        [Mother]?

     3. Did the trial court commit an abuse of discretion or error of
        law when it [o]rdered [Father] to pay an assessment of
        counsel fees in the amount of $73,150.00?

Brief for Appellant at 4 (issues renumbered).

     In custody cases,

     our scope [of review] is of the broadest type and our standard is
     abuse of discretion. We must accept findings of the trial court
     that are supported by competent evidence of record, as our role
     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

                                 -2-
J-A21045-16

      they involve an error of law, or are unreasonable in light of the
      sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

      Additionally,

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation

omitted).

      We will address Father’s first two issues together.    Father contends

that the trial court committed an abuse of discretion in awarding Mother

primary physical and sole legal custody of Child. Brief for Appellant at 32,

35, 37. Father argues that the trial court based its decision upon his refusal

to encourage and permit contact with Mother. Id. at 35-37. Father asserts

that Mother’s testimony was not credible and that Mother’s own actions were

harmful to Child’s best interests. Id. at 35-36. Father claims that Mother

disparaged his character and falsely misrepresented his character at the

hearings. Id. at 36-37. Father also claims that Mother’s history of conduct

toward him raises serious concerns as to her ability to make decisions on

behalf of Child. Id. at 37-38. Father argues that Mother will exclude him

from Child’s life. Id. at 38.

                                 -3-
J-A21045-16

      In any custody case decided under the Child Custody Act (“Act”),1 the

paramount concern is the best interests of the child.       See 23 Pa.C.S.A.

§§ 5328, 5338; see also E.D. v. M.P., 33 A.3d 73, 79 (Pa. Super. 2011).

Section 5328(a) 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.

        (2.1) 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.

1
  See 23 Pa.C.S.A. §§ 5321 et seq. While the Petition for Modification of
Custody was filed prior to the effective date of the Act, i.e., January 24,
2011, the Act applies to this case as hearings were held after the effective
date. See C.R.F., 45 A.3d at 445 (holding that, if the custody evidentiary
proceeding is held after the effective date of the Act, i.e., January 24, 2011,
the provisions of the Act apply even if the modification petition was filed
prior to the effective date).

                                  -4-
J-A21045-16

        (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 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;2 see also E.D., 33 A.3d at 79 n.2.

2
   Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services) and, therefore,
was in effect at the time of the hearings in this matter.

                                  -5-
J-A21045-16

      “All 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 omitted). Moreover,

section 5323(d) mandates that, when the trial court awards custody, it “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). The trial court may not

merely rely upon conclusory assertions regarding its consideration of the

section 5328(a) factors in entering an order affecting custody.        M.E.V. v.

F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014). However, “[i]n 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.”

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation

marks omitted).

      In its Opinion, the trial court undertook an analysis of the section

5328(a) factors, and determined that it was in Child’s best interests to

modify the existing custody Order and to grant Mother primary custody

during the school year.      See Trial Court Opinion, 3/28/16, at 7-8, 10.

Father’s arguments challenge the trial court’s credibility determinations and

the weight given to the statutory factors, specifically section 5328(a)(1), and

would require this Court to reassess and reweigh the evidence in Father’s

favor. It is well-established that we cannot disturb the trial court’s credibility

                                   -6-
J-A21045-16

determinations or reweigh the evidence. See E.D., 33 A.3d at 76 (stating

that “with regard to issues of credibility and weight of the evidence, this

Court must defer to the trial judge[,] who presided over the proceedings and

thus viewed the witnesses first hand”); see also Robinson v. Robinson,

645 A.2d 836, 838 (Pa. 1994) (stating that on issues of credibility and

weight of the evidence with regard to custody orders, “appellate courts must

defer to the findings of the trial judge[,] who has had the opportunity to

observe the proceedings and the demeanor of the witnesses.”).        Although

Father is not satisfied with the weight that the trial court afforded to the

statutory factors in rendering its custody decision, our review of the record

reveals that the trial court’s findings of fact are thoroughly supported by the

record, and its conclusions are sound. See C.R.F., 45 A.3d at 443 (stating

that this Court cannot reweigh the evidence supporting the trial court’s

determinations as long as there is evidence to support the findings).

Therefore, we conclude that the trial court did not abuse its discretion, and

defer to its custody decision. See id.

      In his third claim, Father contends that the trial court abused its

discretion in ordering him to pay $73,150.00 in counsel fees.         Brief for

Appellant at 8, 32.     Father argues that his conduct was not dilatory,

obdurate, or wholly vexatious.      Id. at 8, 9-10, 11, 12-14, 15-21, 30.

Father asserts that he did not re-litigate any issue, and that his filings were

based upon his request for primary custody of Child and the custody

                                  -7-
J-A21045-16

evaluator’s determination that Child should have a primary parent. Id. at 8-

9, 12; see also id. at 13-14 (wherein Father argues that Child is becoming

injured by Mother and Father’s conflict and that one parent should have

primary custody). Father points out that many years have passed since the

filing of the Petition for Modification due to the availability of counsel and the

court, the length of each hearing, and various legitimate Petitions filed by

both parties. Id. at 9-10, 11-12, 15-20, 28-31; see also id. at 29 (wherein

Father argues that the trial court erroneously stated that Father sought to

turn Child against Mother by prolonging litigation, as such a statement was

unsupported in the record).        Father specifically claims that all of his

pleadings “alleged separate and legitimate factual circumstances and legal

issues that typically arise in custody cases. … [A]ll of [Father’s] filings were

filed with the sole purposes of promotion of [C]hild’s best interest.” Id. at

20.

      Father also argues that the trial court failed to give weight to Mother’s

obdurate and vexatious behavior. Id. at 21. Father contends that Mother

fabricated encounters between Father and Mother to the custody evaluator

and parent coordinator. Id. at 21, 22-23; see also id. at 21-22 (wherein

Father argues that Mother’s friend stated that Father pushed Mother in the

face while Mother was holding Child, and Father called Mother a kike).

Father further contends that Mother falsely accused him of being part of the

Russian mafia, breaking into Mother’s home and car, and having a drinking

                                   -8-
J-A21045-16

problem. Id. at 24-27. Father claims that Mother’s actions required him to

respond by filing pleadings and addressing the issues in court. Id. at 27-28.

Father additionally asserts that the trial court justified its award of counsel

fees by pointing out that he was able to pay his legal fees, totaling

$156,098.58.    Id. at 31.   Father argues that he should not be penalized

based upon his ability to pay the fees. Id. at 31-32.

      Pursuant to section 5339, in a custody matter, “a court may award

reasonable interim or final counsel fees, costs and expenses to a party if the

court finds that the conduct of another party was obdurate, vexatious,

repetitive or in bad faith.” 23 Pa.C.S.A. § 5339.3      “Our standard of review

of an award of counsel fees is well settled: we will not disturb a trial court’s

determination absent an abuse of discretion.”      A.L.-S., 117 A.3d at 361.

While a separate evidentiary hearing is preferred, “[i]f the record supports a

trial court’s finding of fact that a litigant violated the conduct provisions of

the relevant statute providing for the award of attorney’s fees, such award

should not be disturbed on appeal.” Kulp v. Hrivnak, 765 A.2d 796, 799

(Pa. Super. 2000) (citation omitted).

      The trial court addressed Father’s claim as follows:

3
  We note that “[o]bdurate is defined as unyielding or stubborn.” In re
Padezanin, 937 A.2d at 484. “A suit is ‘vexatious,’ such as would support
an award of counsel fees in a child custody case, if it is brought without legal
or factual grounds and if the action served the sole purpose of causing
annoyance.” A.L.-S. v. B.S., 117 A.3d 352, 362 (Pa. Super. 2015).

                                  -9-
J-A21045-16

     Father’s conduct was indeed repetitive, and his Petitions sought
     to merely rehash and reargue issues decided years before.
     [Child] is very much aware of this ongoing battle between the
     parties. Additionally, the Parent-Coordinators assigned to this
     case all determined that Father will continually reargue any
     issue, no matter how insignificant.       Father’s attempts at
     obstruction and his dilatory conduct were both well-established
     and not contradicted, and an award of fees to Mother’s counsel
     was therefore entirely appropriate.

     Furthermore, Father himself has requested that [the trial c]ourt
     award full custody to one parent or the other. He believes that a
     shared custody arrangement would not be in [Child’s] best
     interests. Despite this position, sixteen (16) hearings have been
     held, lasting for nearly the entirety of [C]hild’s ten[-]year life.

Trial Court Opinion, 3/28/16, at 11; see also id. at 2-7 (wherein the trial

court details, inter alia, Father’s combative behavior and conduct with the

Parent-Coordinators, Father’s actions toward Mother, and Father’s failure to

abide by court orders). We conclude that the record in this case supports

the trial court’s finding that the conduct of Father was obdurate and

vexatious. See id. at 11.

     Further, contrary to Father’s claims regarding Mother’s conduct, we

conclude that her alleged misconduct did not negate Father’s conduct and

behavior during the resolution of the custody matter.      See 23 Pa.C.S.A.

§ 5339.   Moreover, Father’s ability to pay his own counsel fees does not

demonstrate that the trial court abused its discretion in awarding Mother

counsel fees in this matter.    Thus, we will not disturb the trial court’s

decision to award counsel fees to Mother.

     Order affirmed.

                                - 10 -
J-A21045-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/3/2016

                          - 11 -
                                                                               Circulated 10/20/2016 03:03 PM

                       IN THE COURT OF COMMON PLEAS
                        BUCKS COUNTY, PENNSYLVANIA
                                                                                1111~1~1~~111111
                                                                                Case#: 2006-61075 C 809        11171859

                               FAMILY DIVISION                                    Code: 5214         Judge:18
                                                                                Patricia L. Bachrle Bucks County Prothooctary
                                                                                Rcpt. 21494454   312612016 1·os·43   PM

     G. A.
                                                                    No. 2006-61075-C

        v.
                                                                    . :f:;, ~~ij~¥t5'6:~'.:Dft;:·r;•·
     'r, s.
                                                              CHILDREN'S FAST TRACK
                                                                     APPEAL

                                           OPINION

              G. A.
                            ("Father") appeals from this court's Order .of February 10, 2016,
                                                                           Sc A·
awardingscle legal custody and primary physical custody of the child,               (D.O.B. 7 /25/2005)
          J. ~-
to                  ("Mother"). We also entered an Order directing Father to pay $73,150.00 to
Mother as counsel fees.

         This appeal has been designated as a "Children's Fast Track Appeal." Therefore, this Court
is required pursuant to Pa. R.A.P. 1925(a)(2)(ii) to file an Opinion specifying the reasons for our
Order within thirty (30) days of receipt of the Notice of Appeal and the Concise Statement of
Errors Complained of on Appeal.

         The complete Notes of Testimony have not yet been transcribed, however, the Notes of the
February 10, 2016 Hearing and Order (116 pages) have been transcribed and are being forwarded
with this Opinion. A written copy of our Order, dated March 16, 2016, is also attached.

         Litigation in this matter commenced on March 28, 2006, when Father filed a Petition for
Custody of Minor Child. Since then, there have been sixteen (16) hearings at the request of Father,
from June 29, 2010 until the final hearing on February 10, 2016.

         In our Order of February 10, 2016, this Court summarized and reviewed the evidence
presented.
         Dr. Anthony Pisa was the agreed custody evaluator when the case began in 2006.                     He
immediately       determined   that this was a "high-conflict     case."   N.T. 2/10/2016,      73.   Dr. Pisa

expressed sincere doubts that the parties had the ability to successfully          co-parent,    and that the
situation was "toxic" for the child. N.T. 2/10/2016, 75.

         Dr. Pisa was also appointed          as the assigned     Parent-Coordinator    and made        another
important determination.        He remarked that, no matter what decision he entered in that capacity,
"no matter how minor or mundane,"             Father constantly   refused to accept his decisions.         N.T.
2110/2016, 77. He also noted that Father continually lashes out at Mother and criticizes her abilities
as a parent if Father does not receive a favorable decision from the Parent-Coordinator.                   N.T.
2/10/2016,      78.   Dr. Pisa also described Father as "angry" and believes Father is purposefully
making life exceedingly        difficult for Mother and the child .. N.T. 2/10/2016, 83.

         Dr. Steven Cohen, a psychologist          who also acted as a later Parent-Coordinator             also
testified.     In August 2012, Dr. Cohen resigned from this case. Dr. Cohen's remarks concerning
the case were quite telling:       "This particular case is the most difficult one     in my many years of
coordination." Dr. Cohen explained that Father's argumentative behavior was the reason for his
resignation, and that Father continues to argue about decisions made as early as 2008.                     N.T.
2/10/2016, 88. Dr. Cohen was unable to utilize the Parent-Coordinator process because of Father's
course of conduct in constantly thwarting this process. In Dr. Cohen's view, this family, without
the intervention of a Parent-Coordinator, would be "doomed." N.T. 2/10/2016, 89.

             Additionally, Father became "verbally abusive" on multiple occasions to Dr. Cohen's staff.
N.T. 2/10/2016, 89-90. In Dr. Cohen's view, Father, throughout these proceedings, demonstrated
a lack of good faith. N.T. 2/10/2016, 90. Dr. Cohen, in communicating with this Court, declared
that "I am resigning as the Parent-Coordinator effective immediately." N.T. 2/10/2016, 87. He
 continued:
                                                                                Fr.1..-the-r
             The principal reason for this difficulty is the behavior and attitude of-.
             He has always been exceedingly argumentative, never accepting a decision without
             arguing about it, and continues to argue about decisions made long ago. He
             continues to try to argue about decisions made as early as 2008. So he won't let it
             rest.

                                                       2
       In the beginning, I had face-to-face meetings with the parties and obtained
       agreements from both parties, only to have-           later deny that he agreed
       to those negotiated issues.                 fc...thex
       N.T. 2/10/2016.

       Following Dr. Cohen's resignation, Richard Moore, Esquire was appointed as the new
Parent-Coordinator in late 2012. N.T. 2/10/2016, 96.

       Throughout the many hearings before this Court, we heard additional testimony regarding
Father's conduct, including an accusation that Father unilaterally removed the Child from school,
only to then take her to a shopping mall. N.T. 2/10/2016, 76. Father and Mother were also
quarreling over whether their daughter should take violin or piano lessons.       Dr. Cohen had
previously ordered that the Child take violin lessons, and once again, Father became combative
and discontinued her lessons. N.T. 2/10/2016, 97.

       On several occasions, Father would deliberately delay in dropping off the child to Mother,
knowing that Mother and daughter had previously scheduled events planned for that day. N.T.
2/10/2016, 93-94. As an example, Father dropped off the child to Mother over forty minutes late
on Mother's Day, 2012, despite knowing they had a special breakfast planned at 8:00 a.m. sharp.
For Hanukkah, Father dropped off Child four hours late, causing Mother and Child to miss a pre-
arranged performance of "The Nutcracker" in New York City. N.T. 2/10/2016, 103-104. There
was also evidence that Father would send in excess of fifty (50) e-mails and place over twenty (20)
telephone calls to Mother on days which Father knew were important to Mother and Child, such
as pre-scheduled and pre-approved Jewish holidays. N.T. 2/10/2016, 77.

        Additionally, there was evidence that Father became verbally abusive towards Mother on
numerous occasions, including many instances in the presence of the child. N.T. 2/10/2016, 101,
 103. On at least one occasion, the altercation between Father and Mother turned physical. N.T.
2/10/2016, 102.

        On February 10, 2016, a sixteenth hearing was held. We again noted Father's combative
and argumentative nature throughout the course of this litigation since 2006, and stated:

                                                 3
      We've had three evaluations: July 2007, a follow-up in November of 2007, a final
      one six years ago, January 25th, 2010. We have appointed a Parent-Coordinator   in
      2008. Dr. Cohen resigned in 2012. We vacated the Parent-Coordinator         Order
      because of Dr. Cohen's resignation.    We appointed Richard Moore as a Parent-
      Coordinator.    Same process, different coordinator, same result: Father will not
      accept the decision.

       [ ... ]

       For whatever reason, Father will not abide by an Order, no matter who enters it, no
       matter how well-reasoned, no matter how much it may be in the interest of [the
       Child], and that is going to be frightening for this girl. And even [Father's counsel]
       says that he can anticipate problems in the future, and my obligation is to make sure
       there are no problems in the future.

       N.T. 2/10/2016, 104-105.

       Following our summary of the testimony, we issued our Custody Order. Prior to the entry
of our Order, Father expressed his desire, through counsel, that, regardless of the outcome, Father
"want]s] to leave here with one parent having primary custody." N.T. 2/10/2016, 106.

In our Order of February 10, 2016, we said at various points:

       When we delve deeper into Dr. Pisa some months later, he said something very
       telling. He sail)i}  he had serious issues with Father's judgment on many issues.
       For example,           apparently had a rash, and Father tended§1§if@amethat upon
       the Mother rather than contacting the child's pediatrician; that           was kept out
       of school by the Father because he alleged that she's sick, and yet there was
       evidence that despite this alleged illness, that Father took the child to the mall.

       N.T. 2/10/2016, 75-56.

       When he (Dr. Pisa) questioned the Father's judgment, he also highlighted the fact
       that Father understoo~h~other          wa1=c~ed         with certain Jewish holidays.
       Please, understand,                  ,      )      , that this Court, as should be all
       Courts, are religiously neutral. If the child, by agreement, is raised in the Jewish
       faith, we leave that to the parents. If the parents decide the child should be raised
       in the Christian faith, that's a parental decision. If you decide that she should be
       Wiccan, we'll abide by that. But it's clear and abundant that the parties have, at
        least, a tacit agreement that Father would celebrate the Christian holidays and
       Mother would celebrate the Jewish holidays because they were important to each
        other.

                                                  4
                                             f(}vth.Q..r
       So, knowing that, what does -                  do? He, again being passively-
       aggressive, calls Mother 20 or more times on a Jewish holiday. He knows that will
       be disruptive. He knows it will push Mother's buttons. He knows she'll be upset.

       N.T. 2/10/2016, 76-77.

We also noted in our findings as follows:

       So we go on to other hearings, and now the message is clear: There's something
       wrong here. Father is not abiding by reasonable, rational decisions. Father is on
       notice that he should not keep the child out of school on his whil£. orjaprice, except
       he continues to do so. We heard the testimony about keeping            t'out of school.
       It makes no impression on him. He continues the same type of conduct.

       N.T. 2/10/2016, 79.

       [Dr. Pisa] said "Father can easily be triggered to anger. So there is evidence that
       he was assaultive to the Mother.

       N.T. 2/10/2016, 79-80.

       Then we had heard testimony that on a Jewish holiday you had continually,
       knowing it was important to Mother, and therefore, important to the child, made
       about a hundred calls to Mother. You would think that would send a message that
       it shouldn't happen again; but we find out that on another holiday there were at
       least 14 cell phone calls to Mother. The telephone records confirm that on a
       holiday, Rosh Hashanah and Yorn Kippur - again important to the child, just as
       important to the Mother - 31 telephone calls were made. So, of course, Dr. Pisa
       questions the rationality of this behavior and the Father's judgment.

        N.T. 2/10/2016, 81-82.

We also noted:

        [Dr. Pisa] said that Father habitually - not once in a while, not by happenstance -
        drops the child off late at The Goddard School. There are always excuses for
        lateness, but this is a pattern. He does it, we believe, and we find as a fact, to irritate
        the Mother. And what happens? We believe the testimony. Because Father is late,
        Mother is late for work. But his is a pattern of activity where he hasn't gotten his
        way, he hasn't been able to impose his will, so he will make a studied attempt to
        affect the Mother without thinking at all how this may affect•••
                                                                            LhitJ
        Again, she is still young, but it shows what Dr. Pisa has c,fJJ@.><-d: He described
        Father as rigid. He said, no matter what you say to         •-      , no matter what
        decision you make, no matter how well-reasoned, no matter how often you explain
        it, he refuses to accept it. That is a continuing pattern.

        N.T. 2/10/2016, 82-83.

                                                       5
We further highlighted:

       Dr. Pisa is still on the witness stand. Now it is July of 2011.              is getting
       older; Dr. Pisa is getting richer. He says that Father, despite all this litigation, is
       still as rigid as ever. He is inflexible. He not only won't follow an Order that Dr.
       Pisa imposes, but he is convinced that Father won't even follow a Court Order. The
       Father is a bright guy, and he has to know that if he doesn't follow a Court Order,
       serious consequences could result. But at least the evaluator believes that this is
       lost on Father.

        Father won't listen to anybody who makes a decision about anything in this case.

        N.T. 2/10/2016,   85.

        [Father's counsel] has said this w~one-time   misstep. No, because we accept Dr.
        Cohen's statement that           r""'    has shown "a pervasive pattern of not
        responding to questions directly, arguing with decision~wrd he does it after-the-
        fact, after the decision is made. And he says that I             has been unwilling
        or unable to use the process of Parent-Coordinator in any positive, productive way.

        N.T. 2/10/2016, 88-89.

We also noted that Father's aggressive responses were not only directed toward Mother:

        (Father] became very argumentative and verbally abusive with [Dr. Pisa's] office
        manager, who tried to reason with him for 20 minutes. And despite what [Father's
        counsel] says, this was not a one-and-done incident. [Dr. Pisa] says, "This is not
        the first time he has been argumentative with my office manager."

        N.T. 2/10/2016, 89-90.

 With regard to Father's continuing litigation, we noted:

        We still have issues about what               does for a living. It's not my business,
        but you're curious because somebody is financing this war. [Father] tells me that
        he gets loans, not only from relatives, but from one of his best friends. And I ask
        him, and he was asked, how do you support yourself? And he tells me on $300.00
        per week. I don't believe that. It's possible to get by on a pittance, but it tends to
        show me there is some serious issues with his credibility.

         N.T. 2/10/2016, 92.

 We note that, despite Father's contention that he makes $300.00 per week, his legal fees,
 totaling $156,098.58 have been paid in full.

 We also contrasted Mother's attempts at co-parenting with Father's refusal to co-parent:

                                                   6
                                                 C\\~l~is
       Mother does keep Father advised of -                activities, medical information,
       school programs, [and] vacations. She provides constant, continuing updates.
       She's very specific. Dr. Pisa recognizes that, but then resigns.

       N.T. 2/10/2016, 96.

In issuing our final Order, we outlined the following considerations:

       Which party is more likely to encourage and permit frequent contact? Clearly the
       Mother.

       Has there been past abuse committed? Not tragic abuse in the sense that somebody
       wound up in the hospital or had a loss of a member or severe pain, but it's been
       there. It hasn't been a risk of harm to the child, but it could be. We tend to believe,
       given [Father]'s past behavior, that this could occur. We've heard of emotional
       abuse. I'm sure that's to some degree on both sides.

       There doesn't seem to be any difficulty with physical safeguards for supervision of
       the child. Each party is clearly capable of performing duties on behalf of the child.
       Despite all of this, I still think that -is          a good father. He's just a bad
       boyfriend.                                Fn.-+wir
        Extended family is neutral. They have enough outreach, if necessary. There's no
        siblings.

        The child doesn't have a preference, nor do we care if the child did. But I would
        guess that her preference, despite her maturity- and it's at a high level- she would
        say my preference is that my parents don't fight, but I can't enforce that.

        There has been, at least superficially, and attempt by [Father] to turn the child
        against the other parent by castigating the Mother, calling her names, especially if
        it happens in front of her, but more importantly, by challenging every decision. The
        child knows that there's a conflict, and while it's not violence, that has been the end
        result.

        Both Mother and Father can maintain a loving, stable, consistent, nurturing
        relationship with         and more adequately, both can address her emotional
        needs.            C..hilJ

        Both can easily address her educational needs, except that's Mother's decision
        hereinafter. Blessedly the child has no special needs.

        The parties live close to each other - Newtown-Holland; both nice neighborhoods,
        both within a very short distance. It's not an issue.

        Both parties have in the past been able to make appropriate childcare arrangements.

                                                   7
       What is the level of conflict between the parties? Strong. High.

       What about their ability to cooperate with one another? Not good. They're just
       going to have to do it, otherwise one or both will be back into court, someone will
       pay more attorney's fees, and someone could go to jail.

       N.T. 2/10/2016, 110-112.

       Upon these considerations, we granted sole legal custody and primary physical of the child
to Mother. We directed that Father have custody of the child for the second and fourth weekend
of every month, from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Father is to have custody of
the child for Father's Day, and conversely, Mother shall have custody of the child for Mother's
Day. Father is also to have custody of the child for Christmas Eve, Christmas Day, Good Friday,
and Easter. Mother is to have custody for the two days of Rosh Hashanah and Erev Yorn Kippur.
N.T. 2/10/2016, 106-109.

       In addition to awarding to custody to Mother, we also directed that Father pay $73,150.00
in attorney's fees to Mother's counsel. We found that the past decade of conduct on the part of
Father was "dilatory, wholly vexatious and entirely obstreperous." While we certainly recognize
that Father has a right to petition for a change of custody, "he has no right to attempt to thwart the
best interests of his child through the courts, and that's what he's done." NT. 2/10/2016, 109-
110.

        Father raises the following nine (9) issues on appeal, verbatim:

        1. Whether the lower Court abused its discretion or committed an error of law
           when it awarded an assessment of $73,150.00 in counsel fees to
           Defendant/Appellee's Counsel, in contra to due process requirement when it
           was raised sua sponte by the Court.
        2. Whether the lower Court abused its discretion or committed an error of law
           when it awarded an assessment of $73,150.00 in counsel fees to
           Defendant/Appellee's Counsel, based on unreasonable conclusions in light of
           trial Court's sustainable findings of fact.
        3. Whether the lower Court's Order awarding an assessment of $73,150.00 in
           counsel fees to Defendant/Appellee's Counsel was confiscatory in nature, based
           on unreasonable conclusions in light of the trial Court's sustainable findings of
           fact.
        4. The lower Court's award [of] an assessment of $73,150.00 in counsel fees to
           Defendant/Appellee's Counsel was not supported by the evidence presented

                                                   8
            pursuant to 23 Pa. C.S.A. §5339; Appellant/Father was not obdurate, vexatious,
            repetitive, or acting in bad faith in his request for hearings, but rather, was
            exercising his right as the parent of the minor child acting in the child's best
            interest.
       5.   Whether the lower Court's award [ of] an assessment of $73, 150.00 in counsel
            fees to Defendant/Appellee's Counsel was unreasonable in light of the evidence
            presented on the record and in the circumstances of this case because the lower
            Court failed to give appropriate weight to the Appellee's own attempts to
            indulge in vexatious and repetitive presentation and testimony.
       6.   Whether the lower Court erred when it failed to make a finding of shared legal
            custody based upon its sustainable findings and the evidence presented.
       7.    Whether the lower Court's Order awarding sole legal custody to Appellee was
            unreasonable in light of the evidence presented on the record and the
             circumstances of this case because, when considering the best interests of the
             child, the lower Court failed to give appropriate weight to the Appellee's
             ongoing attempts to exacerbate situation between parties thus portraying
             Appellant/Father in a false lights, which is problematic in light of the lower
             Court's conclusion that Appellant does not cooperate with Mother and refuses
             to co-parent, when Appellee/Mother is guilty of same.
       8.    The lower Court's award of sole legal custody to Defendant/Appellee was not
             supported by the evidence presented under the custody factors enumerated in
             23 Pa. C.S.A. §5328(a), the majority of which weighed in favor of

                                                    J.
             AppellantJFather, and was thus unreasonable in light of the lower Court's
             sustainable findings.
       9.    Whether the lower [C]ourt abused its discretion or conunitted an error of law
             when it awarded Defendant/ Appellee,         S3      I,sole physical custody of
             the minor child based upon unreasonable conclusions in light of the trial Court's
             sustainable findings of fact.

       Concise Statement of Errors Complained of on Appeal, March 11, 2016.

       We will first address Appellant's custody arguments, and then address the imposition of
attorney's fees.

       It is well-established that judges are granted broad discretion in custody matters. The
Superior Court of Pennsylvania has held that:

        "In reviewing a custody order, our scope is of the broadest type and our standard is
         (an] abuse of discretion ... Uitimately, 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."

                                                   9
MO. v. JTR.,  85 A.3d, 1058, 1061 (Pa. Super. 2014) (citingV.B. v. J.E.B., 55 A.3d 1193,
1197 (Pa. Super. 2012)).

        Father's contends that the Custody Order was not supported by the evidence deduced at
trial, and that the factors enumerated in 23 Pa. C.S.A. §5328(a) were not properly considered
because the majority of factors weighed in favor of Father.

        Superior Court precedent does not require a specific level of detail when issuing a Custody
Order. All that is required is a consideration of the enumerated factors, and that "the custody
decision is based upon these considerations." MJM v. J'1.L.G., 63 A.3d 331, 336 (Pa. Super.
2013) (appeal denied 68 A.3d 909). Undoubtedly, a review of the record in this case illustrates
that the enwnerated factors were adequately considered in issuing this Order.

        Father's contention that the custody Order was unreasonable because "a majority [of the
enumerated factors] weighed in favor of Appellant/Father" is unsupported by the record. The
Notes of Testimony from the February 10, 2016 illustrate that, if anything, the majority of the
considerations weighed in favor of Mother and against Father. Furthermore, deciding a proper
custody arrangement involves more than a raw tallying of factors, as Father would seem to suggest.
It is clear that "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." Id. at 339. Therefore, even if a greater number
of factors weighed in favor of Father as compared with Mother, we would not be obligated to
award custody on that basis alone.

        Here, we found Father's refusal to encourage and permit frequent contact with Mother to
be most compelling. Father's history of emotional outbursts at Mother in the presence of the child
is also an important consideration, as well as Father's propensity to tum the child against Mother
by continually prolonging litigation. This is contrary to the child's best interests. This Court
 therefore suggests that the consideration of the factors outlined in 23 Pa.C.S.A. §5328(a) was more
 than sufficient.

         Attorney's fees may be awarded to a party in a custody matter pursuant to 23 Pa.C.S.A.
 §5339. Under that section, a court is permitted to award "reasonable interim or final counsel fees,
 costs, and expenses to a party if the court finds that the conduct of another party was obdurate,
 vexatious, repetitive, or in bad faith. 23 Pa.C.S.A. §5339 (emphasis added).

                                                    10
       It is well-settled   that an award of attorney's   fees will only be set aside   if the trial court
abused its discretion, or the Court failed to follow proper legal procedures or misapplied the law.
A.L-S v. B.S., 117 A.3d 352, 361 (Pa. Super. 2015) (See also, Don Yuan Chen v. Saidi, 100 A.3d
587, 592 (Pa. Super. 2014). No evidentiary hearing is required in determining whether an award
of counsel fees is appropriate, when the facts necessary to make such a finding are admitted and
undisputed. Kulp v. Hrivnak, 765 A.2d 796 (Pa. Super. 2000).

        Here, however, Father's conduct was indeed repetitive, and his Petitions sought to merely
rehash and reargue issues decided years before. The child is very much aware of this ongoing
battle between the parties.       Additionally, the Parent-Coordinators assigned to this case all
determined that Father will continually reargue any issue, no matter how insignificant. Father's
attempts at obstruction and his dilatory conduct were both well-established and not contradicted,
and an award of fees to Mother's counsel was therefore entirely appropriate.

        Furthermore, Father himself has requested that this Court award full custody to one parent
or the other. He believes that a shared custody arrangement would not be in his daughter's best
interests. Despite his position, sixteen (16) hearings have been held, lasting for nearly the entirety
of the child's ten year life.

        We therefore urge that our Custody Order of February 10, 2016, awarding primary physical
custody and sole legal custody to Mother, as well as awarding Mother's counsel $73,150.00 in
 attorney's fees, be affirmed.

                            /      /   /
 DATE
                 3;~t1/l0__
                  ----· -------
                                                     11


USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 97-1679

                                FRED GIOVINO, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                                  GEOFFREY D. WYLER,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Geoffrey D. Wyler on brief pro se.
            _________________
            Edmond J. Bearor,  John W. McCarthy and Rudman & Winchell on brief
            ________________   ________________     _________________
        for appellees.

                                 ____________________

                                   February 5, 1998
                                 ____________________

                 Per  Curiam.  We  have carefully reviewed  the record in
                 ___________

            this  case,  including the  briefs  of  the parties  and  the

            findings  of  fact and  conclusions  of law  of  the district

            court.  We affirm.

                 We find  no error  in the  district court  determination

            that  the  1986  deed  conveying  land  from  IP  Timberlands

            Operating Company,  Ltd. [IPTO]  to International  Paper [IP]

            reserved to IPTO a right  to travel over the so-called "outer

            road."  Similarly, the court  did not err in determining that

            the deeds  of the other  plaintiffs also endowed them  with a

            right to travel over this road.

                 Me. Rev. Stat. Ann.  tit. 33,    201-A has no effect  on

            this issues  in this  case.  By  its plain  language, section

            201-A  pertains neither to the creation  or the extinction of

            an  easement but only to  whether an unrecorded deed provides

            "actual  notice"  of an  easement  to  subsequent purchasers.

            Since the  1986 deed between  IPTO and IP was  duly recorded,

            pursuant to  Me. Rev.  Stat. Ann.  tit. 33,    201, the  deed

            itself gave constructive notice of the easement to subsequent

            purchasers like  Wyler.   See Westman  v. Armitage,  215 A.2d
                                      ___ _______     ________

            919, 922 (Me. 1966) (recordation is "constructive notice .  .

            to after purchasers under the same grantor") (citing cases).

                 Finally, the district  court did not commit  clear error

            in  finding  that  IPTO's  improvements  to  the  outer  road

            constituted reasonable maintenance.

                                         -2-

                 Affirmed.
                 ________

                                         -3-