HomeMy WebLinkAbout2019-05580
MAHMOUD SHAZLEY : IN THE COURT OF COMMON PLEAS OF
ELNAGGAR, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
: CIVIL ACTION LAW
vs. : NO. 2019-05580 CIVIL
:
HEBA ALLAH MALLAK, :
Defendant : IN CUSTODY
STATEMENT IN LIEU OF 1925(a)
PLACEY, C.P.J., 8 May 2020
Plaintiff (Father) appeals from the Parenting Plan order granting him
shared legal and partial physical custody three (3) consecutive days in
those weeks that Father is not at sea for work.
presentation from learned
counsel in May 2019. Counsel withdrew, self-represented Father was
thereafter granted a continuance, and a custody trial was heard in March
2020. Each side was required to file pretrial memoranda.
Joint shared
Father and Mother shall have exercised an equal amount of 183 days of
child physical custody at their
2019-05580 CIVIL
Proposed Order of Court at page
1
2.
Post-trial, Father engaged appeal-counsel who filed six (6) pages of
Errors Complained of on Appeal. Suffice it to say that at trial it was not
, let alone in the
best interest of their young son, O.E.. The eighteen (18) page Parenting
Plan included a review of all the custody factors presented at trial and that
were considered in the decision. This Plan took a conciliatory tone in
hopes of encouraging and promoting the parents in the best
interest of O.E.. Alas, this peacemaking effort did not bear fruit.
This appeal is reminiscent of the old legal adage about pounding the
table. If you have the facts on your side, pound the facts. If you have the
law on your side, pound the law. If you have neither the facts nor the law,
pound the table. This Statement will focus on and highlight the facts that
miial request.
Father declares himself to be a marine engineer and a financial
advisor, but never states who his employer is nor does he provide any set
1
The February 13, 2020 Pretrial Order states amended pretrial
memoranda\] without exhibits is to be filed and may be sent to the Court at
trialcourt@ccpa.netside filed their memoranda with the
Prothonotary one sent it only by email and the other sent it to court administration
and by email but both got to the court. For purposes of the instant appeal, by
separate order, their respective amended pretrial memoranda have been made as
court exhibits to complete the record for appellate review.
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2019-05580 CIVIL
work schedule just that he works either two (2) weeks on and off or
month on or month off. By his own admission he is not a licensed marine
2
engineer that he blames on Mother for disrupting his examination;
however, he further claims he may go back to school at Tulane for a
graduate degree at some unspecified time. When Father does work it is for
weeks straight at a time, up to a month at sea; however, Father introduced
no arrangements as to his childcare plans for O.E.. The situation begs the
question as to how a single father, living alone, in a foreign country, without
family support, would never have need or plan for childcare. Mother, at
least, has family in her home and in the local community who have been
identified as supplemental caretakers as needed.
Moreover, Father did not explain how O.E. would be exchanged
between the two countries. Father has created his own immigration issues,
including having lost three (3) passports; all these issues indicate a lack of
preparation, are of his own volition, or are indica
inattentiveness. He complains that the scrutiny he suffers crossing the
Canadian border now adds several hours to his travel time. B
calculus, the round trip between homes for O.E. would be sixteen (16)
hours.
2
Mariners licensed in engineering are denoted by grade of license: Chief Engineer,
First Assistant Engineer, Second Assistant Engineer, and Third Assistant Engineer.
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2019-05580 CIVIL
Additionally, s egress from Egypt. Son, who is a
United States citizen, was used as collateral to obtain concessions from
Mother when Father, Mother, and O.E. were in Egypt. Allowing Father or
Mother to take son out of the United States is a recipe for disaster absent
adequate assurances or guarantees of safe passage and return.
Father, acting as his own attorney, was given great latitude in his
testimony and questions over the objections of defense counsel. Father
used this latitude to re-litigate
marriage and divorce both occurring in the Middle East and full faith
and credit was given to evidence presented by Father of those international
legal proceedings. As cathartic as this testimony may have been for
Father, the testimony did not focus on the best interest of O.E.. Father was
adamant in his deportment and was not prone to being redirected to the
focal issues of the custody proceeding. Weight was given to testimony and
exhibits presented as deemed appropriate, mindful that the trial court sitting
as factfinder is presumed to ignore the inadmissible evidence.
Commonwealth v. Fears, 86 A.3d 795, 819 (Pa. 2014).
In summary, Father means well and truly wants to do right by their
son; however, his custodial proposal was unfocused and his methods are
coarse and are in need of a good deal of filing down to become a better
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2019-05580 CIVIL
parent. His custodial request reads as being more a financial transaction
than parental; moreover, the facts he presented lack proper development to
fulfil such a pie-in-the-sky aspiration. is
belied and undermined by the disingenuousness in his custody request.
The above concise reasons, together with all the factors considered
in the Parenting Plan, support the affirmance of the custody order.
By the Court,
_____________________
Thomas A. Placey, C.P.J.
Steven Howell, Esq.
619 Bridge Street
New Cumberland, PA 17070-1933
For the Plaintiff
William G. Braught, Esq.
78 W. Pomfret Street
Carlisle, PA 17013
For the Defendant
:rlm
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