Cocco v. Palmieri (May 29, 2026)

Case details
Full caption
Jaclyn Cocco v. Rosario Palmieri, Jr.
Country
United States
Jurisdiction
Pennsylvania (PA)
Court
Pennsylvania Supreme Court
Decided
May 29, 2026
Disposition
Affirmed
JACLYN COCCO v. ROSARIO PALMIERI, JR. Appellant, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1506862Unpublished DispositionOnly the Westlaw citation is currently available.See Pa.R.A.P. 126(b) and Superior CourtO.P. § 65.37 (Non-Precedential Decisions)NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT O.P. 65.37Superior Court of Pennsylvania.JACLYN COCCOv.ROSARIO PALMIERI, JR. AppellantNo. 2429 EDA 2025|FILED MAY 29, 2026Appeal from the Order Entered August 29, 2025 In the Courtof Common Pleas of Delaware County Civil Division atNo(s): CV-2018-004825BEFORE: LAZARUS, P.J., PANELLA, P.J.E., andSTEVENS, P.J.E.*OpinionMEMORANDUM BY STEVENS, P.J.E.:*1 Appellant, Rosario Palmieri, Jr. (“Father”) appeals fromthe Final Custody Order dated August 28, 2025, enteredAugust 29, 2025, by the Delaware County Court of CommonPleas granting primary physical custody of the parties’ threeminor children to Appellee, Jaclyn Cocco (“Mother”), andpartial physical custody to Father. After careful review, weaffirm.By way of background, Father and Mother have three minorchildren together, the oldest child having been born inFebruary of 2014 and the youngest in April of 2017. Findingsof Fact in Support of Custody Order Dated 8/28/2025(hereinafter “Findings of Fact”) at page 1. On June 21, 2018,Mother filed for custody of all three children. Id. At thattime, Mother resided in Pennsylvania while Father had movedto New Jersey. Id. On or around September 12, 2018, theHonorable William C. Mackrides of the Court of CommonPleas of Delaware County determined the home state of thechildren to be Pennsylvania, and several months thereafterentered a Temporary Custody Order awarding joint legalcustody, primary physical custody to Mother, and partialphysical custody to Father. Id. at 1-2Relevant to the instant appeal, this custody matter wasreassigned in or about May of 2025 to the Honorable JudgeRachel Ezzell Berry, also of the Court of Common Pleas ofDelaware County, and the matter proceeded to a custody trialbefore Her Honor on August 21, 2025. Trial Court Opinion10/16/2025 at 1. By that time, the trial court noted, thedocket was rife with “many Petitions for Contempt, Petitionsfor Special Relief, and other petitions (name changes,reunification, sanctions, and more) filed between the parties,”demonstrating the high degree of conflict. Trial Court Opinion10/16/2025 at 1. Following trial, Judge Berry entered thecustody order dated August 28, 2025, which reduced father's,custodial time. It is from this order which Father now appeals.We are presented with the following issues for review:I. WHETHER THE COURT ABUSED ITS DISCRETIONBY RENDERING AN ORDER UNREASONABLE INLIGHT OF ITS FACTUAL FINDINGS CONTRARYTO THE BEST INTERESTS FACTORSII. WHETHER IT WAS AN ABUSE OFDISCRETION TO RELY UPON TO [sic] PERSONALEXPERIENCES IN RENDERING THE 8/28/25ORDER.III. WHETHER THE COURT ABUSED ITSDISCRETION BY ISSUING AN ORDER WHICHFAILS TO CONSIDER COURT-APPOINTEDEVALUATOR'S TESTIMONY AND REPORTS.IV. WHETHER THE FAILURE TO HEAR PETITIONSIN A TIMELY MANNER RESULTED IN AVIOLATION OF DUE PROCESS.V. WHETHER THE COURT COMMITTEDREVERSIBLE ERROR AND ABUSED DISCRETIONIN RENDERING ITS FINAL ORDER DESPITE THEEXTENSIVE RECORD BEFORE IT.Appellant's Brief at 26.As father's first and fifth issues are functionally identical, wewill address them as one.We review custody orders for an abuse of discretion. Wewill not find such an abuse merely because we wouldhave reached a different conclusion. Rather, an abuseof discretion occurs only if the trial court overrode or
JACLYN COCCO v. ROSARIO PALMIERI, JR. Appellant, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2misapplied the law in reaching its conclusion, or therecord shows the trial court's judgment was manifestlyunreasonable or the product of partiality, prejudice, bias, orill will.*2 Moreover, our scope of review is broad. Because thisCourt does not make independent factual determinations,however, we must accept findings of the trial court that aresupported by competent evidence of record. Importantly,we defer to the trial court on matters of credibility andweight of the evidence, as the trial court viewed andassessed witnesses firsthand. We are not, however, boundby the trial court's deductions or inferences. Ultimately, thetest is whether the trial court's conclusions are unreasonableas shown by the evidence of record. We may rejectthe conclusions of the trial court only if they involvean error of law, or are unreasonable in light of thesustainable findings of the trial court. As this Court hasheld, it is not this Court's function to determine whetherthe trial court reached the ‘right’ decision; rather, wemust consider whether, based on the evidence presented,given due deference to the trial court's weight andcredibility determinations, the trial court erred or abusedits discretion.When a trial court orders a form of custody, the best interestof the child is paramount. The best-interests standard,decided on a case-by-case basis, considers all factorswhich legitimately have an effect upon the child's physical,intellectual, moral and spiritual well-being. To that end, theChild Custody Act sets forth sixteen factors that a courtmust consider before making any custody determination. Itis within the trial court's purview as the finder of fact todetermine which factors are most salient and critical ineach particular case.Taylor v. Smith, 302 A.3d 203, 206-207 (Pa. Super.2023)(internal citations omitted, emphasis added).The core contention in Father's first and fifth issues is that thetrial court ought to have afforded more weight to the custodyfactors which favored Father than was afforded to thosewhich favored Mother. Of particular note, Father takes issuewith the lower court's order increasing Mother's custodialtime despite the court finding that mother has engaged inacts of alienation including, inter alia, not meaningfullyencouraging the children to go with Father during drop-offs, not disciplining the children for refusing to do so, andexpressing undue concern for the children's safety while inFather's custody.To the extent Father contends that this court has mandateddispositive weight be attributed to factors concerning parentalalienation as a matter of law, he is incorrect. Indeed, it appearsthat the authority to which Father cites in support of thiscontention either does not exist or does not stand for theproposition for which he asserts it does. Notably, Father'sbrief includes the following quotation:“Where the record demonstrates that one parent hasengaged in a sustained campaign to alienate the childrenfrom the other parent, ... [t]he court must act to protectthe best interests of Children and cannot permit a parentto benefit from such misconduct. [sic] E.D., 33 A.3d at 83[sic].Appellant's Brief at 39-40 (emphasis present in original,ending quotation marks missing in original).This Court can find no such case using the citationprovided by Father, nor any other source for the quotedlanguage. Rather, the citation provided directs this Court toDiscover Bank v. Stucka, 33 A.3d 82 (Pa. Super. 2011), anopinion entirely unrelated to child custody and containing nodiscussion of parental alienation.Additionally, Father cites to this Court's opinion in S.M. v.J.M., 811 A.2d 621, 625 (Pa. Super. 2002), in favor of theproposition that “failing to remedy alienation and pattern ofobstruction would ‘irreparably harm’ child [sic]” and thus,presumably, would require reversal. Appellant's Brief at 40.While Father's citation did indeed bring this court to anextant opinion, it simply does not say what Appellant saysit does. Our opinion in S.M. v. J.M. did not discuss parentalalienation, it does not include the phrase “irreparably harm”at any point, and further we discern no manner in which ourholding in that case is relevant to Father's argument.1*3 After thorough review of the record, we see no basisto doubt the trial court's representation that the court “tookthose facts [relative to mother's alienation of the children]seriously,” and “weighed those factors involving those factualfindings [ ] in Father's favor,” but, in taking into considerationall evidence before it, elected to “emphasize[ ] differentfactors in making its ultimate decision.” Trial Court 1925(a)Opinion 10/16/2025 at 12. Such decisions are the prerogativeof the trial court in making a determination as to the bestinterest of the children, and, again, this Court will notintervene absent an abuse of discretion. Taylor, supra.
JACLYN COCCO v. ROSARIO PALMIERI, JR. Appellant, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3Here, we observe that while the trial court indeed foundseveral factors to favor Father, and several factors to favorneither parent, there were a significant number of factorsfound to favor Mother. We note the following from thetrial court's findings of fact: Mother has been the primarycaretaker of the children for almost eleven years; the childrenare thriving in their current school district, are engagedin extracurricular activities, have strong relationships withtheir friends, teachers, and coaches; they are surroundedby mother's extended family who live nearby and regularlyparticipate in the children's lives; and mother has been anoverall more consistent source of stability and care for thechildren. Findings of Fact at 20-30. The lower court alsonoted that father voluntarily moved several hours awayfrom the children, had stopped attending their extracurricularactivities, did not make any efforts to call the children inthe year preceding trial, the children are unfamiliar with theschool district in which Father now lives, and the distancebetween Father and the children's primary residence makesfrequent travel difficult. Findings of Fact at 20-30, 31-32.It is certainly not unreasonable under these circumstancesto craft an order which prioritizes stability by leavingprimary custody with Mother and somewhat reducing Father'scustodial time. As we have repeatedly emphasized, “thepolestar of child custody law is to serve the best interests ofthe child.” T.M. v. H.M., 210 A.3d 283, 292 (Pa. Super. 2019);see also K.T. v. L.S., 118 A.3d 1136, 1157 (Pa. Super. 2015);C.B. v. J.B., 65 A.3d 946, 961 (Pa. Super. 2013).Thus, we discern no abuse of discretion relative to Father'sfirst and fifth issues and find these issues merit no relief.Father's second issue challenges the trial court's ostensiblereliance on “personal experience,” which he contends thetrial court allowed to supersede both the law and the recordbefore the court as the impetus for the lower court's custodyorder. Appellant's Brief at 93. Of note, in his brief, Fatherseeks reversal and remand to “an unbiased judge,” for newproceedings in this matter. Id. However, as noted by thetrial court, at no point during the proceedings below didFather move the court to recuse herself. Trial Court Opinion10/16/2025 at 29. Furthermore, in his brief, Father cites onlyto precedent addressing lower court denials of motions torecuse. Appellant's Brief at 93.Thus, we find that Father has waived this issue for failure tomove for recusal of the lower court. Pa.R.A.P. 302(a).Father contends in his third issue that the trial court erredby failing to consider the testimony and reports of Dr. KenLewis, a court-appointed evaluator. Of note, the testimony atissue consists of an incomplete direct examination conductedbefore the honorable Judge Mackrides in November of2024. Appellant's Brief at 97. However, Father did not callDr. Lewis to the stand during the expedited August 21,2025, custody trial before Judge Berry. Notes of Testimony8/21/2025 at 38-39. As a result, Mother was not afforded anopportunity to cross-examine the witness, nor did Mother callher own competing expert witness, who had also conductedan evaluation of the children. Trial Court Opinion at 35. Whilewe acknowledge the trial court did take judicial notice ofthe incomplete testimony offered in November of 2024, upondoing so the court made clear it would only “assign [thetestimony] whatever probative value [the court thought was]worthwhile.” N.T. 8/21/2025 at 38. Father did not object tothe court's qualifying statement, and thus this issue is waived.Id.; Pa.R.A.P. 302(a).*4 Furthermore, even should we endeavor to review Father'sclaim, there is no significant discussion of the expert's opinionin this section of his brief. Appellant does not identify whichrecommendations or concerns offered by the expert are notserved or are otherwise disregarded by the trial court's order,but instead contends that the trial court's having not explicitlyreferenced this testimony in rendering her ruling is itselfdemonstrative of error. Appellant's Brief at 96. In supportof this proposition, Father seems to attempt to cite to In reD.A., 801 A.2d 614 (Pa. Super. 2002)2. However, nothing inthat opinion supports any such holding, nor does the opinionaddress analogous circumstances, and as such this court findsit is not instructive.In addition to citing no sources which support this novelproposition, Father develops no coherent argument as to whythis Court should hold that a trial court deciding custodymatters must explicitly reference any expert witness whosetestimony appears of record when issuing a ruling or opinion.We decline to develop one for him. Commonwealth v.Lawrence, 2024 PA Super 59, 313 A.3d 265, 278 n.3 (Pa.Super. 2024) (“It is well settled that this Court will not actas counsel and will not develop arguments on behalf of anappellant.”)Father's fourth issue challenges the trial court's apparentdelay in ruling on various petitions he had filed over theseveral years preceding the August 21, 2025, trial. In supportof his argument, Father cites to, inter alia, a May, 2025,
JACLYN COCCO v. ROSARIO PALMIERI, JR. Appellant, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4e-mail correspondence between his then-counsel and courtstaff bringing these petitions to the lower court's attentionfollowing Judge Berry's then-recent assignment to this matter.Shortly thereafter, on June 6, 2025, Father filed an additionalpetition for contempt, and a hearing was scheduled for June12, 2025.At the outset of that hearing, the lower court, with theassistance of counsel, assembled a list of petitions which hadat that time not yet been ruled upon. During that hearing,the lower court proposed consolidation of the outstandingpetitions as each addressed “the same nucleus of activity,”and no party objected. Notes of Testimony 6/12/2025 at 6-10.Following testimony regarding mother's alleged contempt,the lower court noted that it would continue to hold thepending petitions in abeyance. Id. Again, Father did notobject to this ruling, nor did he raise the issue of the pendingcontempt petitions during the August 21, 2025, trial.Now on appeal, father contends that the trial court's delayin ruling on these petitions violated his due process rights.However, as Father did not object to the trial court's clearruling holding these matters in abeyance, and he did not revisitthis issue prior to the instant appeal, we find that the issue hasbeen waived. Pa.R.A.P. 302(a).For the foregoing reasons, we find that Father has failed topresent any issues meriting relief, and thus, we affirm.Judgment Entered.Benjamin D. Kohler, Esq. ProthonotaryAll CitationsSlip Copy, 2026 WL 1506862 (Table)Footnotes*Former Justice specially assigned to the Superior Court.1As a result of the aforementioned issues regarding Appellant's dubious citations, “this Court is left to guess whetherthis counterfeit authority is the product of a chatbot, or if there is a more nefarious explanation for the misinformation.”Commonwealth v. Shie, 307 A.3d 668, 2023 WL 6878610, at *7 n.7 (Pa. Super. 2023)(unpublished); see also Sandersv. United States, 176 Fed.Cl. 163, 169 (Fed. Cl. 2025)(observing “[i]t is no secret that generative AI programs are knownto ‘hallucinate’ nonexistent cases, and with the advent of AI, courts have seen a rash of cases in which both counsel andpro se litigants have cited such fake, hallucinated cases in their briefs” (citation omitted)).2The citation provided by Father reads “ D.A. v. R.A., 801 A.2d 614 (Pa. Super 2002).” Appellant's Brief at 96. However,the provided citation leads this Court to the above-cited opinion.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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