S.L.H., now S.L.B. v. S.E.H. ( 2016 )


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  • J-S68045-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    S.L.H. NOW S.L.B.                          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee              :
    :
    v.                           :
    :
    S.E.H.                                     :
    :
    Appellant             :   No. 693 WDA 2016
    Appeal from the Order April 14, 2016
    In the Court of Common Pleas of Bedford County,
    Civil Division at No(s): 864 for the year 2007
    BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
    MEMORANDUM BY STRASSBURGER, J.:                      FILED OCTOBER 20, 2016
    S.E.H. (Father) appeals from the order entered April 14, 2016, in the
    Court of Common Pleas of Bedford County, which reduced his periods of
    partial physical custody with respect to his son, P.H. (Child), born in
    November of 2006, and awarded increased periods of primary physical
    custody to Child’s mother, S.L.B. (Mother). After careful review, we affirm.
    We summarize the relevant factual and procedural history of this
    matter as follows. Mother and Father are former spouses. They separated
    less than a year after Child’s birth, in July of 2007, and divorced in 2010.
    Currently, Mother resides with her boyfriend, J.S., and their son, H.S., who
    was born in May of 2014.           Mother is a stay-at-home parent, and J.S. is
    ____________________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-S68045-16
    employed as a truck driver.     Father lives about thirty miles away from
    Mother and is employed as a carpenter.        He typically works during the
    summer months and is laid off during the winter.
    Prior to the commencement of the current custody proceedings,
    Mother exercised primary physical custody of Child pursuant to a custody
    stipulation dated September 25, 2013, and entered as an order of court on
    October 9, 2013. The stipulation awarded both parties shared legal custody,
    and awarded Father partial physical custody every weekend during the
    school year from Friday at 7:00 p.m. until Sunday at 7:00 p.m., as well as
    alternating weeks during the summer. On September 17, 2014, Mother filed
    a petition for modification of the prior custody order, in which she requested
    that Father’s physical custody of Child be reduced to every other weekend
    during both the school year and the summer. On October 22, 2014, Father
    filed a counter-petition for modification of custody, in which he requested
    primary physical custody of Child.
    The trial court held a series of custody hearings on February 12, 2015,
    May 22, 2015, and January 15, 2016. On April 14, 2016, the court entered
    the order complained of on appeal, in which it reduced Father’s partial
    physical custody of Child by providing that Mother would have custody
    during the second weekend of every month, and during the fifth weekend of
    every month should one exist. Father timely filed a notice of appeal, along
    with a concise statement of errors complained of on appeal.
    Father now raises the following issues for our review.
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    [1.] Did the trial court commit an abuse of discretion in awarding
    [] Mother primary physical custody and [] Father periods of
    partial custody, and in particular with respect to the following:
    a. In determining that Factor 1, which parent would
    best promote contact between [C]hild and other
    parent, did not favor either party;
    b. In determining Factor 2, information relating to
    child abuse or neglect, was insufficient to warrant a
    finding against either party;
    c. In determining Factor 3, parental duties
    performed, does not warrant a finding in favor of
    either party; and,
    d. In determining Factor 4, stability and continuity
    for [C]hild, favors [] Mother, rather than [] Father?
    [2.] Did the trial court commit an abuse of discretion in awarding
    [] Mother primary physical custody, thereby denying [] Father’s
    petition for modification, and indirectly the request for
    relocation, and in particular with respect to the following:
    a. In determining Relocation Factor 2, age,
    development stage and needs of the child vis-à-vis
    the impact of relocation, not to be in [C]hild’s best
    interests;
    b. In determining Relocation Factor 6, whether
    relocation will enhance the child’s general quality of
    life, does not favor either parent; and,
    c. In determining Relocation Factor 7, whether
    relocation enhances the child’s general quality of life
    relative to financial or emotional benefit and
    educational opportunity, favors [] Mother[?]
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    Father’s brief at 8-9 (suggested answers omitted).1
    We consider Father’s issues mindful of our well-settled standard of
    review.
    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.
    ____________________________________________
    1
    Although this is not a relocation case, the trial court considered the
    relocation factors set forth at 23 Pa.C.S. § 5337(h). It is well-settled that
    moving a child from one party’s primary physical custody to another party’s
    primary physical custody does not qualify as “relocation” when both parties
    continue to reside in the same place. D.K. v. S.P.K., 
    102 A.3d 467
    , 472-73
    (Pa. Super. 2014). In that case, this Court held that it was not improper to
    consider the relocation factors where the children are required to move a
    significant distance. However, it was not necessary to consider these factors
    in this case where Child would only be relocating a distance of 30 miles. See
    id at 476-77 (holding that in “a custody case where neither parent is
    relocating, but the children stand to move a significant distance, trial
    courts should still consider the relevant factors of section 5337(h) in their
    section 5328(a) best interests analysis”) (emphasis added). Nonetheless, it
    is apparent from the trial court opinion that no different decision would have
    been made had the relocation factors not been considered, and Father thus
    would not be entitled to relief. Therefore, we will not be discussing those
    factors infra.
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    V.B. v. J.E.B., 
    55 A.3d 1193
    , 1197 (Pa. Super. 2012) (citations omitted).
    “When a trial court orders a form of custody, the best interest of the
    child is paramount.” S.W.D. v. S.A.R., 
    96 A.3d 396
    , 400 (Pa. Super. 2014)
    (citation omitted). The factors to be considered by a court when awarding
    custody are set forth at 23 Pa.C.S. § 5328(a).
    (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)
    (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.
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    J-S68045-16
    (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. § 5328(a).
    Instantly, the trial court issued a thorough opinion discussing each of
    the Section 5328(a) best interest factors and concluded that awarding
    primary physical custody to Father would not be in Child’s best interest. The
    court reasoned as follows.
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    J-S68045-16
    Both homes are fit and both parents able. However, Mother’s
    relationship with her companion is of a longer duration. It would
    be painful for [Child] to form a strong bond with [] Father’s
    companion and children if that relationship is not to last. The
    present schedule affords Father a maximum amount of time
    without the child becoming dependent emotionally on his
    companion and children. Moving [Child] to a new school given
    his current success is not a positive change for him.
    Based on the above, the Court will retain the parties’
    arrangement with one exception; the Court will afford the
    Mother one weekend a month. The current school year schedule
    of no weekends with his Mother substantially interferes with her
    continuing bond with the child.
    Trial Court Opinion, 4/13/2016, at 18.
    On appeal, Father takes issue with several of the trial court’s factual
    findings. According to Father, the trial court abused its discretion by failing
    to find that subsections 5328(a)(1), (2.1), (3), and (4) weigh in his favor.
    With respect to subsection 5328(a)(1), Father argues that he has
    strived to encourage Child’s relationship with Mother. Father’s brief at 17-
    19.   In contrast, Father continues, Mother does not make an effort to
    encourage Child’s relationship with Father, and in fact makes it difficult for
    Father to communicate with Child during Mother’s custody time by changing
    her phone number and refusing to answer his phone calls. Id.
    The trial court found as follows with respect to Section 5328(a)(1).
    In the [trial c]ourt’s 2009 Memorandum it was noted “both
    parties deeply love [C]hild, but they are unwilling to support the
    role of the other parent in [C]hild’s life.” In part to address this
    and other problems involving cooperation the [trial c]ourt
    directed the parties to work with a mediator in May of 2015.
    [Mother], in her testimony, stated that while she gave [] Father
    extra time with the child, [] Father was reluctant to modify the
    schedule to afford her more time. However, it must be kept in
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    J-S68045-16
    mind [] Mother’s current proposal is to reduce [] Father’s time
    by one weekend a month during the school year and desires to
    change the summer schedule from the weekly alternating
    schedule to weekends only plus vacation time. An analysis of
    these factors must also consider how the October 2, 2013,
    custody order came about. On July 4, 2013, [Mother] was
    arrested for driving while under the influence, highest rate, a
    misdemeanor, and endangering the welfare of children, a
    misdemeanor of the first degree. [Mother] was involved in an
    accident while transporting the child. [Mother] stated that she
    had been at a campsite with family members and left to pick up
    the child at a custody exchange.         While returning to the
    campsite, she lost control of the car when it skidded on loose
    gravel, and [Mother] struck the guiderail. [C]hild was seat
    belted in a booster seat and was not harmed. On July 22, 2014
    she pled guilty to DUI incapable of safe driving, and recklessly
    endangering another person. [Mother] was sentenced to not
    less than 10 days in jail to a maximum of five months. This was
    followed by 13 months [of] probation. When the arrest occurred
    [Father] agreed to allow [Mother] to retain primary custody. As
    he stated in his testimony on May 22, 2014, [sic] [Father] made
    the agreement allowing [Mother] to retain primary custody even
    though he believed [Mother] was unsafe with the child.
    However, he noted, “I got all the quality time and no support”.
    He further stated he didn’t want the child to “lose” his Mother,
    however, he also told [Mother] if she filed for support, he would
    file for primary custody.      Paragraph nine of the order of
    September 25, 2013 provided neither party was to pay support.
    In October of 2014 [Mother] re-raised her claim for support
    against [Father]. As noted, in September of 2014 [Mother] filed
    to modify custody and in October of 2014 [Father] counter
    petitioned seeking primary custody. Based on the above it does
    not appear the parties have advanced much beyond their
    position as noted in the [trial c]ourt’s Memorandum of 2009.
    Both parties are aware that [C]hild has a strong bond with the
    other parent, but both are extremely jealous of [C]hild’s time
    and each wants to have the lion’s share of [C]hild’s free time.
    Trial Court Opinion, 4/13/2016, at 4-5 (citation omitted).
    After carefully examining the record in this matter, we conclude that
    the trial court did not abuse its discretion.    Father testified during the
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    custody proceedings that Mother recently “blocked” his cell phone, and that
    he is only permitted to call and speak to Child using his landline.       N.T.,
    5/22/2015, at 11, 20, 27-28.            Father reported that Mother blocked him
    because “she claims that I write rough messages to her.”         Id. at 27.   On
    cross-examination, counsel for Mother asked Father if he has insulted Mother
    by sending her text messages describing her as “Blondie” or “a dumb
    blonde.” Id. at 68-69. Father admitted, “I have called her a blonde before,”
    but suggested that this statement was not necessarily meant as an insult.
    Id. at 69.    At the conclusion of the testimony on that day, the trial court
    ordered that Father would be permitted to call and speak to Child using his
    cell phone. Id. at 87. However, the court prohibited Father from sending
    Mother text messages.2 Id.
    Thus, it is clear that the trial court considered Mother’s refusal to
    accept calls from Father’s cell phone when issuing the order complained of
    on appeal, and that the trial court found Mother’s behavior unacceptable.
    However, the record indicates that Father contributed to, if not caused,
    these communication difficulties by making derogatory comments to Mother.
    The court was well within its discretion when it concluded that neither parent
    is adept at encouraging the other parent’s relationship with Child, and that
    subsection 5328(a)(1) should not weigh in Father’s favor.
    ____________________________________________
    2
    The trial court did not include a provision prohibiting text messages in its
    final custody order.
    -9-
    J-S68045-16
    Father next argues that the trial court abused its discretion by finding
    that subsection 5328(a)(2.1) did not weigh in favor of either party. Father’s
    brief at 19-20.   Father contends that Mother has engaged in “reckless
    decision making vis-à-vis the child’s interests, safety and welfare,” as
    demonstrated by an incident during which Mother drove while intoxicated
    with Child in her vehicle, and was involved in an accident. Id.
    The trial court made the following findings.
    [Mother’s] DUI arrest based on an accident with the child in the
    car raises concerns the Court believed [Mother] previously
    resolved. In 2007 at about the time of the separation [Mother]
    had a DUI arrest. In the June, 2009 Memorandum in referring to
    the arrest, the [trial c]ourt stated, “However, it appears that
    [Mother] has dealt with this issue responsibly since her arrest for
    driving under the influence in September of 2007.”            [T]he
    Memorandum goes on to say … “Further it appears [Father] does
    not believe [Mother] represents a risk to [C]hild as he is satisfied
    that he and [Mother] share legal custody and [Mother] have
    physical custody fifty (50%) percent of the time.” Based on
    present events it appears the [trial c]ourt was overly optimistic
    about the state of [Mother’s] recovery and how perspicacious
    [Father’s] [sic] judgment is regarding the safety of her son. On
    the positive side, [Mother] has completed all of the programs
    required by her conviction, and it does not appear there were
    any alcohol related problems between 2007 and 2013. The issue
    was not raised in the 2012 hearings.          [Mother] is not in
    counseling for alcoholism. The evaluation she took as part of the
    DWUI process did not require counseling. [Mother] did attend
    monthly alcohol anonymous meetings for four months. Further,
    [Mother] says she stopped drinking after her arrest in July of
    2013. It should be noted the blood test of [Mother’s] alcohol
    level at the time of her arrest was a .16, which of course is
    considered a high rate. Based on the record it appears [Mother]
    understands the problem she has with alcohol except when she
    is drinking. A .16 shows a fairly high tolerance to alcohol and
    would support [] Mother drinks more than has been disclosed in
    previous [c]ourt proceedings.      It would thus appear to be
    - 10 -
    J-S68045-16
    necessary to add a condition to the order that the Mother not
    consume alcohol while exercising custody, and to enforce this
    provision strictly.
    ***
    Except for the concern about the Mother’s drinking, no credible
    evidence was presented by either side concerning abuse or
    neglect of the child.
    Trial Court Opinion, 4/13/2016, at 6-7 (citation omitted).
    Father’s claim fails, as it is clear that the trial court did weigh
    subsection 5328(a)(2.1) in his favor. While the court did not state explicitly
    that subsection 5328(a)(2.1) “weighs in favor” of Father,           the trial court
    concluded that the only evidence relevant to this factor was that Mother
    drove drunk with Child in the car.         Nonetheless, the trial court was not
    obligated to award primary physical custody to Father based solely on this
    factor.   The trial court acted within its discretion by concluding that this
    factor is outweighed by the other evidence presented in this case, including
    Child’s success in his current school and his need for stability.
    With respect to subsection 5328(a)(3), Father argues that the trial
    court failed to weigh appropriately the significant parental duties that he
    performs for Child.    Father’s brief at 20-21.     Father emphasizes that he
    makes financial contributions for Child’s benefit, and that he is involved in
    Child’s extracurricular activities. Id.
    The trial court made the following findings with respect to subsection
    5328(a)(3).
    - 11 -
    J-S68045-16
    [C]hild has always resided primarily with his Mother. The [trial
    c]ourt has previously found her to be [C]hild’s primary caregiver.
    Such a finding can be a substantial factor in custody cases
    especially where the child is younger. The [trial c]ourt has also
    previously found that regarding difficult issues involving [C]hild
    [] Mother’s parental practices have been “…the most consistent,
    balanced, and realistic.” Having said that, since the parties
    modified the order in 2013 to give [] Father every weekend, and
    week on week off in the summer, he has performed all parental
    duties required by his substantial periods of custody. Further,
    [Father] has been extremely consistent in exercising periods of
    custody. [C]hild participates in soccer and basketball and []
    Father is active and supports the child at his games. Further, []
    Father has enrolled [Child] in wrestling and is active with [him]
    in that pursuit. [] Father does his own housework and when his
    present companion isn’t in his home he does all the cooking. []
    Father also plays board games with his son, and roller skating,
    and [Child] enjoys doing chores where he can work with Father.
    It appears [] Mother is responsible for [C]hild’s dental and doctor
    visits. Both parents are involved with [C]hild’s school and both
    meet with his teacher.
    Trial Court Opinion, 4/13/2016, at 7-8 (citations omitted).
    Thus, the trial court acknowledged that Father has performed
    significant parental duties for Child during his periods of partial physical
    custody. However, given that Mother has remained Child’s primary physical
    custodian throughout his life, the record supports the court’s finding that this
    factor should not weigh in favor of Father. Notably, the record reveals that
    Mother also has been active in Child’s extracurricular activities.      Mother
    takes Child to practices and attends his games. N.T., 5/22/2015, at 23-24,
    26; N.T. 1/15/2016, at 65-67.      Father’s insistence on appeal that Mother
    somehow neglects these activities is belied by the record.
    With respect to subsection 5328(a)(4), Father argues that he is more
    stable than Mother because he has lived in the same home since Child was
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    born, while Mother has changed residences several times. Father’s brief at
    21-23.   Father also stresses that Mother’s current home is owned by her
    boyfriend, and that Mother could be forced to leave the home at her
    boyfriend’s discretion. Id.
    The trial court found as follows with respect to subsection 5328(a)(4).
    [] Mother has been with her present companion for two years,
    has resided in the Everett area continuously since 2008, and
    [Mother’s] present house is appropriate. However, she does rely
    on her companion for support as she works full time in the
    home, and the house does belong to her companion. As noted,
    the couple shares a child together and although the companion
    stated that while he and [Mother] have no current plans to
    formalize their relationship, they have never separated and are
    serious about their relationship.
    [] Father continues to reside in the former marital residence and
    that has been his home since the house was built in 2004. []
    Father has also maintained his employment as a Union
    Carpenter for many years. [Father’s] house is very adequate.
    [Father’s] relationship with his present companion is stable and
    positive but only began in August of 2015.
    Based on the above the record supports that overall the Mother’s
    home is more stable.
    Trial Court Opinion, 4/13/2016, at 8-9.
    We again conclude that the trial court did not abuse its discretion.
    During the custody proceedings, J.S. testified that he and Mother have not
    separated at any point over the last three years, and that he anticipates that
    their relationship will continue indefinitely. N.T., 1/15/2016, at 40, 48-49.
    J.S. stated that he and Mother have discussed marriage, but that they have
    no plans to get married within the next year. Id. at 48.
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    On May 22, 2015, Father testified that, until recently, he had a
    girlfriend named M.S., and that M.S. “[o]ccasionally” resided with him at his
    home.    N.T., 5/22/2015, at 6.   Father stated that M.S. no longer spends
    significant periods of time at his home, because “she just went through a lot
    of situations recently and we’re just working on things.” Id. By January 15,
    2016, Father was no longer seeing M.S. at all, and instead presented the
    testimony of his new girlfriend, K.R.     K.R. testified that she has known
    Father for about five months, and that she and one or more of her daughters
    have been spending the weekends at Father’s home.         N.T., 1/15/2016, at
    59-60.
    Accordingly, the record supports the trial court’s finding that Mother’s
    home is currently more stable than Father’s home. Father’s home life has
    been disrupted by a series of fluctuating relationships, while Mother’s home
    life has remained unchanged for the last three years. Critically, there was
    no evidence presented during the custody proceedings which would suggest
    that Mother’s relationship with J.S. is likely to end, or that J.S. will remove
    Mother from his home. Father’s suggestion that Mother’s relationship with
    J.S. may be unstable is mere speculation, and does not warrant reversal of
    the subject custody order.
    Father has failed to demonstrate that awarding him with primary
    physical custody will enhance Child’s quality of life. Child has excelled while
    in Mother’s care, and it was proper for the trial court to conclude that it
    should not attempt to fix what is not broken by uprooting Child and placing
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    him with Father.     An award of primary physical custody to Father would
    cause considerable upheaval in Child’s life, and could jeopardize his ongoing
    success.
    Accordingly, because none of Father’s claims entitles him to relief, we
    affirm the order of the trial court.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/20/2016
    - 15 -
    

Document Info

Docket Number: 693 WDA 2016

Filed Date: 10/20/2016

Precedential Status: Precedential

Modified Date: 4/17/2021