D.R. v. M.A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.R. : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
v. : No. 1578 MDA 2014
:
M.A. :
Appeal from the Order Entered August 29, 2014
In the Court of Common Pleas of York County
Family Division, at No. 2006-FC-001521-03
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 24, 2015
D.R. (Father) appeals, pro se, the order of the Court of Common Pleas
of York County, entered August 29, 2014, that awarded shared legal and
physical custody of his daughter, A.R. (Child), fifteen years of age, to him
and to M.A. (Mother). We affirm.
Father and Mother had physical custody of A.R. and her sister, E.R.,
according to a schedule of their own making from 2006 until 2012. Under
that schedule, Father had primary physical custody. E.R. is not subject to
the order under appeal as she has reached majority.
Father filed a complaint in custody on January 13, 2012, in which he
sought shared legal custody and primary physical custody. The parties
attended a conciliation conference; the conciliator recommended shared
physical and legal custody. The parties took the matter to trial in June 2012
and eventually stipulated to shared physical and legal custody.
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Father filed a petition to modify custody on January 28, 2014, in which
he sought sole legal custody and primary physical custody. After a
conciliation conference in March 2014, the conciliator recommended that the
parties abide by the order then in effect. The trial court conducted a hearing
on Father’s petition and, on August 29, 2014, entered the order complained
of here that continues shared legal and physical custody. This timely appeal
followed.
Our scope and standard of review is as follows.
In reviewing a custody order, our scope 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 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).
We have stated that
[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.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation
omitted).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Additionally,
[t]he parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted).
We begin by noting that the trial court entered a comprehensive
opinion with its order of August 29, 2014. In that opinion, the trial court
discussed each of the sixteen statutory custody factors in 23 Pa.C.S.A. §
5328. On October 20, 2014, the trial court entered a supplemental opinion
in which it discussed Father’s errors complained of on appeal.
In his first issue, Father complains that the trial court erred when it
relied on the close proximity of the residences of the parties and awarded
shared custody because “this distance is conducive to a shared custody
schedule.” Trial Court Opinion, 8/29/14 (TCO), at 5. In its supplemental
opinion, the trial court admits that it found the close proximity of the parties’
residences conducive to shared custody, but stated, “[t]his Court considered
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all of the relevant factors pursuant to 23 Pa.C.S.A. §5328 in regards to the
best interests of the [C]hild in making the decision to award shared physical
custody of the [C]hild to the parties.” Supplemental Opinion, 10/20/14
(SO), at 5. Father focuses on a single finding. He ignores the fact that the
trial court conducted a comprehensive evaluation of the facts upon which it
based its decision to award shared custody. We find no error in the trial
court’s determination to award shared custody. Father’s first issue is
without merit.
In his second issue, regarding factor seven, the well-reasoned
preference of the child, Father complains that the trial court did not award
him primary custody in spite of the fact that Child maintained “a preference
for his household and that she gave a very good reason for wanting that
preference: to maintain a good relationship with her sister.” Father’s Brief,
at 13.
Child did not express a preference to live in Father’s household. She
expressed a preference to be there when her sister was present. We quote
the trial court’s explanation, with approval, “[Child’s] preference was focused
on the maintenance of a relationship with her older sister who is living at
Father’s residence and the creation of a custody schedule that would allow
her to be at Father’s residence when her sister would also be present and
available. As identified in the Opinion, [Child] did not state a preference as
to whose residence she would like to spend the majority of her time.” SO,
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at 1-2. Child refused to state a preference for one household over the other,
and that her only preference was to maximize the time she spent with her
older sister. The trial court did not err when it found factor seven to be
neutral. Father’s second issue is without merit.
In his third issue, Father complains that the trial court abused its
discretion when it found that factor one, which party encourages continued
contact with the other party, favored Mother. We quote the trial court’s
analysis with approval:
The [c]ourt weighed “Encouragement of Continued Contact
between the Other Party” in favor of Mother because the
evidence at trial established that [Child] has visited Father’s
residence freely during Mother's custody time. It is true that
both Mother and Father testified that they encourage contact
between [Child] and the other party; however, limited testimony
was presented evidencing [Child] actually visiting Mother’s
residence during Father’s custody time. Father testified that
[Child] would be allowed to go to Mother’s during his custody
time to pick up anything she forgot at her Mother’s residence.
(Transcript p. 7) However, testimony by Mother established that
Father is not as willing to allow [Child] to visit Mother’s residence
during his custody time. Mother testified that on one occasion
Father refused to let [Child] come over to Mother’s early to pack
for a vacation. (Transcript p. 111) On another occasion, Mother
testified that Father was not willing to allow her to exercise her
entire vacation rental because it cut into his custody time with
[Child]. (Transcript p. 112) In light of this testimony and the
lack of testimony regarding [Child] actually visiting Mother’s
residence during Father’s custody time, the [c]ourt found that
this factor weighed in favor of Mother.
SO, at 3-4. The record supports the trial court’s determination that it is
Mother, not Father, who will encourage continuing contact with the other
party. Father’s third issue is without merit.
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In his fourth issue, regarding factor eight, attempts to turn child
against the other parent, Father claims, “[t]he trial court weighed the
handling of the financial matters in favor of Mother over Father, but it
expressly ignored testimony that would not put Mother in a favorable
light[.]” Father’s Brief, at 27.
In support of his claim, Father examines the testimony and the
evidence presented to the trial court and asks us to reach a different
conclusion. This we may not do. We are bound to accept the conclusions of
the trial court if they are supported by the record, even if it were possible to
reach a different conclusion. See S.M. v. J.M., supra. The record supports
the trial court’s conclusion that “this factor weighs slightly in favor of
Mother.” TCO, at 11.
In his fifth issue, Father complains that the trial court erred when it
found that Father’s handling of financial affairs created friction with the
Children where the only significant friction was with the child who had
reached majority. Father, however, failed to present any argument in his
brief in support of this claim and has therefore failed to develop a coherent
legal argument to support it. By failing to develop a coherent legal
argument, he has waived his claim. “[A]rguments which are not
appropriately developed are waived.” Lackner v. Glosser, 892 A.2d 21,
29-30 (Pa. Super. 2006) (internal citations omitted). See Chapman-Rolle
v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006) (“It is well settled that a
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failure to argue and to cite any authority supporting an argument constitutes
a waiver of issues on appeal”).
In his sixth issue, Father again claims the trial court erred in favoring
Mother over Father on the handling of financial matters. Once again,
though, Father examines the testimony and the evidence presented to the
trial court and asks us to reach a different conclusion. We again decline to
do so. See S.M. v. J.M., supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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