M.A.B. v. H.R.B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.A.B., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
H.R.B.,
Appellant No. 2009 MDA 2016
Appeal from the Order Entered November 4, 2016
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-348-2016
BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED JUNE 19, 2017
H.R.B. (“Mother”) appeals from child custody order entered November
4, 2016, regarding her daughter, E.R.B. (“Child”), born in August of 2003, to
Mother and M.A.B. (“Father”). Upon careful review, we affirm.
In the opinion accompanying the subject order, the trial court set forth
the relevant factual and procedural history of this case, which the
testimonial evidence supports. As such, we adopt it herein. Trial Court
Opinion, 11/4/16, at 5-7.
Child is the only child born of the marriage between Mother and
Father. The parties separated on December 16, 2015, when Father left the
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*
Former Justice specially assigned to the Superior Court.
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marital home.1 N.T., 9/8/16, at 11, 15. On March 9, 2016, Father filed a
custody complaint requesting shared legal and primary physical custody of
Child. In an interim order entered May 6, 2016, the trial court granted the
parties shared legal custody. The interim order also granted Mother primary
physical custody, and Father partial physical custody on alternating
weekends from 4:00 p.m. on Friday until 8:00 p.m. on Sunday, plus one
weekday evening to be agreed upon by the parties, from 4:00 p.m. until
8:00 p.m. In addition, the interim order provided for a shared physical-
custody schedule on major holidays. Interim Order, 5/6/16, at ¶¶ 1-3.
On September 8, 2016, the trial court held a custody hearing. At that
time, Mother resided in the marital home in Orwigsburg, Pennsylvania, which
is a distance of approximately two miles from Child’s school. N.T., 9/8/16,
at 16, 155. One month before the custody hearing, Father had relocated to
a two-bedroom home owned by his parents in Lake Wynonah, Pennsylvania.
N.T., 9/8/16, at 16-17. The trial court found that Father’s residence in Lake
Wynonah is a driving time of approximately twenty minutes from Child’s
school. Trial Court Opinion, 11/4/16, at 6.
At the custody hearing, Father testified on his own behalf. Father also
presented the testimony of Jerry Warner, a neighbor who lives next door to
the marital home; and Brent Stramara, Father’s friend. Mother testified on
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1
At the time of the subject proceedings, a divorce complaint was pending
between the parties.
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her own behalf. She also presented the testimony of Father, as on cross-
examination. In addition, Child, who was then thirteen years old and in the
seventh grade, testified in camera in the presence of the parties’ counsel.
In a custody order entered on November 4, 2016, the trial court
granted the parties shared legal custody. During the school year, the trial
court granted Mother primary physical custody, and Father partial physical
custody on alternating weekends from 4:00 p.m. on Friday until 9:00 p.m.
on Sunday, and one overnight per week, to be agreed upon by the parties,
from 4:00 p.m. until Child returns to school the next day. Order, 11/4/16,
at 1-2. During the summer months, the trial court granted the parties
shared physical custody on alternating weeks. Id. at 2. In addition, the
trial court set forth a shared physical-custody schedule for major holidays.
Id. Finally, the trial court directed, “The parties shall undergo a drug and
alcohol evaluation within 30 days of the date of this Order and shall attend
and complete any recommended counseling and/or other treatment.” Id. at
3.
On December 5, 2016, Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court did not author a separate opinion
pursuant to Pa.R.A.P. 1925(a). Rather, the trial court entered an order
indicating that it was relying upon its opinion that accompanied the custody
order.
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Mother presents the following issue for our review:
Q. Did the trial court commit an error of law granting Father’s
petition for modification?
Mother’s Brief at 7 (some capitalization omitted).
We review Mother’s issue according to the following scope and
standard of review:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of
fact, nor must the reviewing court accept a finding that
has no competent evidence to support it. . . . However,
this broad scope of review does not vest in the reviewing
court the duty or the privilege of making its own
independent determination. . . . Thus, an appellate court
is empowered to determine whether the trial court’s
incontrovertible factual findings support its factual
conclusions, but it may not interfere with those
conclusions unless they are unreasonable in view of the
trial court’s factual findings; and thus, represent a gross
abuse of discretion.
R.M.G., Jr. v. F.M.G., 2009 Pa. Super. 244, 986 A.2d 1234, 1237
(Pa. Super. 2009) (quoting Bovard v. Baker, 2001 Pa. Super.
126, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The 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.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
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conclusions. Ketterer v. Seifert, 2006 Pa. Super. 144, 902 A.2d
533, 539 (Pa. Super. 2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
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) (citing Arnold v. Arnold, 847 A.2d 674,
677 (Pa. Super. 2004)).
Child custody actions are governed by the Child Custody Act, 23
Pa.C.S. §§ 5321-5340. Trial courts are required to consider “[a]ll of the
factors listed in section 5328(a) . . . when entering a custody order.” J.R.M.
v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). This
section 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.
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(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.
(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.
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(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. § 5328(a).
Furthermore, we have explained the following:
Section 5323(d) provides that a trial court “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). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 (Pa. 2013). . . .
In 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.” M.J.M.
v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
[620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.
A.V., 87 A.3d at 822-823.
Instantly, the trial court addressed each of the Section 5328(a) factors
in its opinion that accompanied the custody order. Trial Court Opinion,
11/4/16, at 9-14. Specifically, the trial court found that Section 5328(a)(1),
(9), (14), and (15) weighed equally between the parties; Section
5328(a)(3), (4), (7), (10), (11), and (12) weighed in favor of Mother; and
Section 5328(a)(5) weighed in favor of Father. The trial court found the
remaining statutory factors not relevant to this case. Upon thorough review
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of the certified record, we discern no abuse of discretion by the trial court in
its consideration of the Section 5328(a) factors.
Turning to Mother’s issue, the crux of her argument is that the trial
court erred in failing to enter the interim custody order as a final order. As
such, Mother argues that the trial court erred by increasing Father’s partial
physical custody from a four-hour period once per week to one overnight per
week during the school year, and by granting the parties equally shared
physical custody during the summer months. Mother asserts that the trial
court “materially alter[ed]” the interim order contrary to the record
evidence. Mother’s Brief at 18-20. Specifically, Mother contends that the
trial court ignored Child’s custody preference “without justification.” Id. at
17. Further, Mother asserts that the trial court failed to address Father’s
purported “parental [im]maturity” with respect to his allegedly “breaking
into the [marital] home and drinking and driving.” Id. at 25. Mother’s issue
is without merit.
Initially, Mother’s argument is flawed to the extent that she asserts the
trial court granted Father’s “petition for modification.” Indeed, the certified
record demonstrates that Father initiated this custody action on March 9,
2016, and his complaint was the subject of the custody hearing. The parties
operated under the May 16, 2016 interim order following unsuccessful
custody conciliation conferences. Trial Court Opinion, 11/4/16, at 5.
Further, because Father requested primary physical custody in his custody
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complaint, we disagree with Mother’s assertion that the trial court granted
Father’s physical-custody request. It follows that we reject Mother’s
assertion that the final order “materially alter[ed]” the physical custody
arrangement followed by the parties since their separation.
With respect to Mother’s contention regarding Section 5328(a)(7), i.e.,
the well-reasoned preference of the child based on the child’s maturity and
judgment, we observe that, in denying Father’s request for primary physical
custody, the trial court weighed this factor in favor of Mother. The trial court
stated the following in its opinion accompanying the subject order:
[Child] expresses her desire to continue to live with Mother at
the marital residence where she has resided since birth. It
makes excellent sense since it is a brief drive to [C]hild’s current
and future schools within the Blue Mountain School District. She
spends a significant period of time with Mother at extracurricular
activities[ w]hile both parents have shared equally in supervising
[her] school work. As a result, [Child] excels in school and
extracurricular activities. The current Interim Order is working
well. This factor favors Mother.
Trial Court Opinion, 11/4/16, at 11.
Upon review, Child’s testimony supports the trial court’s findings. We
discern no abuse of discretion by the trial court in weighing this factor in
favor of Mother by granting her primary physical custody during the school
year and Father partial physical custody one overnight per week and on
alternating weekends during the school year.
Likewise, we discern no abuse of discretion by the trial court in the
weight it placed upon Section 5328(a)(7) in fashioning its order concerning
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the physical-custody schedule during the summer months. Child testified as
follows on inquiry by the trial court:
Q. What about, like, during the summertime in a shared
situation where you go, like, one week -- now, this is not during
the school year. This would be during the summertime. You
would be one week with Mom in Orwigsburg and then one week
over in Lake Wynonah?
A. I never really, like, thought of it that way. I don’t know, like,
because, like, sometimes I get homesick from being away from
my mom and stuff; but I don’t really know, like, how that would
really work out.
Q. Because you haven’t experienced it?
A. Yeah, I haven’t experienced it; so I don’t really know how it
would work out.
N.T., 9/8/16, at 77-78.
Further, Child testified on cross-examination by Father’s counsel as
follows, in relevant part:
Q. Your dad’s house in Lake Wynonah, he’s only been there
about a month or so?
A. Yeah.
Q. And you stayed over there?
***
A. Yeah.
Q. And you have your bedroom over there?
A. Yeah.
Q. [Father] said he furnished it and everything?
A. Yeah.
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Q. Do you like it?
A. I love it.
Q. What do you love about it?
A. It’s, like, all my favorite colors; and it’s all nice and properly
put together and everything.
Q. Did you participate in that?
A. Yeah. My aunt actually did it for me. She . . . talked to me
about what colors I wanted the sheets, the curtains. . . .[2]
Id. at 81. Based on Child’s testimony, and our review of the entirety of the
certified record, we will not disturb the trial court’s decision to grant the
parties equally shared physical custody on an alternating weekly basis
during the summer months.
Finally, we reject Mother’s contention that the trial court failed to
address Father’s alleged “parental [im]maturity.” Mother’s Brief at 25.
First, Mother asserts that the trial court failed to address Father’s alleged
“drinking and driving.” Id.
In considering Section 5328(a)(14), the history of drug or alcohol
abuse of a party or a member of a party’s household, the trial court opined:
There is no history of drug abuse. However, many of the
exhibits introduced by both parties indicate that there may be
cause for concern with regards to both parties imbibing alcohol.
Both parties must have an alcohol evaluation performed by one
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2
On inquiry by the trial court, Child testified that her aunt is E.B., the wife of
Father’s brother, M.B. N.T., 9/8/16, at 82.
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of the reputable evaluation services utilized by Schuylkill County
Children and Youth to assess whether there are treatable alcohol
concerns. Nevertheless, neither party has had an arrest or
conviction for driving under the influence or other criminal
behavior.
Trial Court Opinion, 11/4/16, at 13-14.
Upon review of the certified record, we conclude that the testimonial
and documentary evidence supports the trial court’s findings. Indeed, the
trial court directed the parties to “undergo a drug and alcohol evaluation
within 30 days of the date of this Order and shall attend and complete any
recommended counseling and/or other treatment.” Order, 11/4/16, at ¶ 4.
Therefore, we reject Mother’s assertion that the trial court failed to address
Father’s alleged drinking and driving.
Second, Mother asserts that the trial court failed to address her claim
regarding Father allegedly “breaking into the [marital] home.” Mother’s
Brief at 25. In considering Section 5328(a)(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, the trial court stated the following:
Mother contends that Father left the marital home without
talking to [C]hild and later while Mother and [C]hild were on
vacation took various items of furniture and a television from the
family room in the marital home, and did not timely inform
Mother or [C]hild that he had taken the furniture. Upon arriving
home, Mother and [C]hild thought the home was burglarized. It
appears[,] however, that this history involved the contentious
divorce proceeding which appears to be well on its way to
resolution. Both parties appear capable of maintaining a loving,
stable, consistent and nurturing relationship with [C]hild and
truly desire to continue to attain these goals. This factor favors
both parties.
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Trial Court Opinion, 11/4/16, at 12. Our review of the record reflects that
Father’s testimony supports the trial court’s findings, and we discern no
abuse of discretion by the trial court in the weight it placed on this evidence
in fashioning its custody order.
The trial court carefully and thoroughly considered Child’s best
interests, and the certified record supports the trial court’s custody decision.
Thus, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2017
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