D.C.S.-R. v. P.R. ( 2014 )

J-A25029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.C.S.-R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
P.R.
Appellant No. 790 EDA 2014
Appeal from the Order of February 18, 2014
In the Court of Common Pleas of Wayne County
Domestic Relations at No.: 398 DR 2011
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 07, 2014
P.R. (“Father”), pro se, appeals the February 18, 2014 order that
granted D.C.S.-R (“Mother”) primary physical custody of their son, J.P.R.
(“Child”), who was born in February of 2009. The order also granted shared
legal custody and established a schedule of partial physical custody for
Father.
The record supports the following recitation of the history of this case.
The parties married on October 2, 2004 in New Jersey. On August 8, 2011,
Mother filed for divorce. At the time of filing, Mother lived in Wayne County
and Father lived in Bucks County. Mother has three children from a prior
marriage. On September 1, 2011, Mother filed a custody complaint.
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*
Retired Senior Judge assigned to the Superior Court.
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On September 20, 2011, Mother obtained a protection from abuse
(“PFA”) order against Father that provided Father with custody of Child every
other weekend. On November 14, 2011, the court entered an interim
custody agreement that provided for the same custody as outlined in the
PFA. On January 17, 2012, the court entered another interim custody
agreement that outlined the same custodial time.
On March 16, 2012, a court-appointed master began a custody
hearing. Hearings continued sporadically until June 21, 2012. On June 29,
2012, the master issued his report. On July 31, 2012, the court entered a
custody order adopting that report and providing for joint legal custody,
shared physical custody during the summer of 2012, whereafter custody
reverted to the every other weekend schedule that had previously been in
effect.
Much of the custody litigation has stemmed from Child’s special needs.
The parties disagreed about what services Child needs and who should
provide those services. The Early Intervention Program in Wayne County
evaluated Child in 2011 and identified a feeding/eating issue, with an
underlying sensory-processing component. The program established an
Individualized Education Plan (“IEP”) for him and implemented appropriate
services. Child has received occupational therapy relating to his eating
issues in Wayne County. In addition, Child has received bi-monthly
treatment from psychologist Wendy Matthews, Ph.D. Father takes Child to
these sessions because Dr. Matthews’ office is close to his home. At some
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point, the parties agreed to modify custody to extend Father’s custody
through Sunday night so that Child could attend these Monday sessions with
Dr. Matthews. Although Child was evaluated at Children’s Hospital of
Philadelphia and was put on a waiting list for its Day Feeding Program, Child
was not enrolled the Program because Mother and Father disagreed about
the program. With the exception of Dr. Matthews, Child’s current treatment
providers are located in the Wayne County area.
The parties divorced on July 19, 2013. On September 23, 2013,
Father commenced the current phase of this litigation when he filed a
petition to modify custody and for relocation.1 The trial court held hearings
on Father’s petition on December 10, 2013, and January 24, 2014.
When Father filed his petition, per the standing custody order, Mother
had primary physical custody and Father had periods of partial physical
custody on alternate weekends from Friday to Sunday. By the parties’
agreement, Father also had custody of Child on alternate Mondays so that
Child could attend therapy sessions with Dr. Matthews. When the hearings
occurred, Mother had been living with her parents for approximately one
year. Mother’s boyfriend also lived with Mother, Child, and her parents.
Father had lived in Bucks County for at least three years. The parties’
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1
While Father titled his petition as one for relocation, Father actually
sought a change in primary custody.
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homes are approximately three hours apart, and both are appropriate
residences for Child.
Father’s closest relative, a sister, lives in New York City and travels to
Bucks County to visit Father and Child. Father lives near many of Mother’s
relatives, but does not have regular contact with them. Child’s maternal
grandparents assist Mother in caring for Child. Mother’s three children from
her prior marriage reside primarily in New Jersey with their father. Mother
and Child make the six-hour round trip to New Jersey to visit with Mother’s
other children at least once per month.
The trial court found that Child had “made a lot of progress” with the
services he receives, and found that both Mother and Father are actively
involved in Child’s care. Trial Court Order and Opinion (“T.C.O.”),
2/18/2014, at 3. Child attends a pre-kindergarten program in Wayne
County from 12:30 p.m. until 3:30 p.m., Tuesdays through Fridays. Child
also attends the Philadelphia Christian Center Academy every other Monday
when he is with Father. On February 18, 2014, the trial court issued an
opinion and order providing for shared legal custody, primary physical
custody with Mother, and every other weekend partial custody with Father.
On March 11, 2014, Father filed his notice of appeal. He filed his
statement of matters complained of on appeal on March 27, 2014.2 On April
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2
Pa.R.A.P. 1925(a) requires that, in Children’s Fast Track appeals such
as this one, the concise statement of errors complained of on appeal shall be
(Footnote Continued Next Page)
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25, 2014, the trial court filed a statement pursuant to Pa.R.A.P. 1925(a)
adopting its February 18, 2014 opinion.
Father presents the following questions for our review:
I. Did the trial court err and/or abuse its discretion in relying on
and/or in applying the relocation factors of 23 Pa.C.S.A.
§ 5337(h) to the instant matter, where the parties have resided
in two separate counties within this Commonwealth and this
Court’s jurisdiction for several years prior to the custody hearing,
and where they had been exercising their custodial time in their
respective residences during that time?
II. Did the trial court err and/or abuse its discretion in finding
factor one of 23 Pa.C.S.A. § 5337(h) neutral as to its application
to either Mother or Father, rather than in favor of Father, or in
finding factor two of 23 Pa.C.S.A. § 5337(h) in favor of Mother,
where said determination was contrary to the determination
made in factor ten of 23 Pa.C.S.A. § 5328(a)?
III. Did the trial court err and/or abuse its discretion in failing to
give proper weight to factor 7 of 23 Pa.C.S.A. § 5337(h)?
IV. Did the trial court err and/or abuse its discretion in finding as
part of factor 10 of 23 Pa.C.S.A. § 5337(h) and/or in concluding,
drawing an inference or deduction that a “change” in [Child’s]
“routine” may hinder or be detrimental to his progress?
V. Did the trial Court err and/or abuse its discretion in
determining that factor 4 of 23 Pa.C.S.A. § 5328(a) and factor 5
of 23 Pa.C.S.A. § 5328(a) favor [M]other, where the testimonial
and documentary evidence shows otherwise?
VI. Did the trial court err and/or abuse its discretion in
determining that factor one, factor three or factor six of 23
Pa.C.S.A. § 5328 (a) are neutral as to their application to either
_______________________
(Footnote Continued)
filed and served with the notice of appeal. Father did not do so. However,
we have accepted Father’s late filing because Mother did not object or claim
any prejudice resulted from it. See In re K.T.E.L., 983 A.2d 745, 748 (Pa.
Super. 2009).
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Mother or Father, rather than in favor of [F]ather, or in not
considering factor 11 of 23 Pa.C.S.A. § 5328(a)?
VII. Did the trial court err and/or abuse its discretion in
determining that factor 12 of 23 Pa.C.S.A. § 5328(a) favors
Mother, and that factor 13 of 23 Pa.C.S.A. § 5328(a) is neutral,
rather than in favor of [F]ather?
VIII. Did the trial court err and/or abuse its discretion in not
considering factor 14 of 23 Pa.C.S.A. § 5328(a) and/or in not
drawing a negative inference against Mother, where Mother
failed to disclose that her paramour was a member of her
household when she filed her December 2, 2013 pre-trial
statement and submitted her Criminal Verification and Abuse
Affidavit around the same time?
IX. Did the trial court err and/or abuse its discretion in
determining that factor 9, 10 or 15 of 23 Pa.C.S.A. § 5328(a)
are neutral as to their application to either Mother or Father,
rather than in favor of Father?
X. Did the trial court err and/or abuse its discretion in failing to
consider, address or make a finding, conclusion, draw an
inferences [sic] or deductions on whether the events that have
transpired since the entry of the July 31, 2012, custody order
constitute a significant change in circumstances?
XI. Did the trial court err and/or abuse its discretion in failing to
address, make a finding, conclusion or draw an inference or
deduction on whether Mother unilaterally relocated from the
marital home in New Jersey to Wayne County, PA on or about
June of 2011, or if this intestate [sic] move was done to evade
the relocation, custody and jurisdictional laws of the State of
New Jersey, and how this bears on Mother’s fitness to be
awarded custody of [Child]?
XII. Did the trial court err and/or abuse its discretion in the
visitation section of the order, by eliminating all of Father’s
Holidays, Fall and Spring vacations to which Father was entitled
to under the prior custody order or by depriving Father of a fair
and reasonable summer schedule- at least 50-50 shared time?
Father’s Brief at 2-5 (citations modified).
Our scope and standard of review are as follows:
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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).
We have stated:
[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.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006). Additionally,
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.
S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v.
Robinson, 645 A.2d 836, 838 (Pa. 1994)).
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“Upon petition, a court may modify a custody order to serve the best
interest of the child.” 23 Pa.C.S.A. § 5338(a). To determine the child’s
best interests, the trial court must consider the following factors:
(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.
(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.
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(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.A. § 5328(a).
In his first issue, Father claims that the trial court erred in considering
the relocation factors enumerated in 23 Pa.C.S.A. § 5337(h) in addition to
the best interests factors in section 5328. Father contends that, because
neither parties intended to relocate, this was not a relocation case. Father
asserts that it was, therefore, error for the court to consider the relocation
factors. Father’s Brief at 34-35.
This Court recently addressed the applicability of the section 5337
custody factors when custody of a child changes from one parent to another
and the parties live a significant distance from each other, but neither parent
relocates. In D.K. v. S.P.K., ___ A.3d ___, 2014 WL 4923111 (Pa. Super.
Oct. 2, 2014), we held as follows:
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[W]e hold that a custody case where neither parent is seeking to
relocate and only the children would be moving to a significantly
distant location if custody shifted from one parent to another
does not per se trigger section 5337 of the Child Custody Act.
Thus, the notice requirement of section 5337(c) does not apply
in such cases. Trial courts should still consider the relevant
factors of section 5337(h) in their section 5328(a) best interest
analysis. As we have explained, several of the relevant factors
of section 5337(h) are encompassed, directly or implicitly, by the
custody factors listed in section 5328(a). Any relevant section
5337(h) factor that is not expressly encompassed in section
5328(a) should be considered by the trial court under the
catchall provision of section 5328(a)(16).
Id. at 10. Thus, where a petitioner asks a trial court to change custody of a
child from one parent to another who lives a significant distance away, the
trial court needs to consider only those relocation factors that might be
relevant to its deliberations, and only as a “relevant factor” under subsection
5328(a)(16).
Even though this Court decided D.K. after the trial court issued its
opinion in this case, we cannot fault the trial court for considering the
relocation factors here because Father was the party who raised the issue in
his petition for modification. In addition to titling it a petition to relocate,
Father specifically pled that he was seeking relocation of Child.
The trial court discussed the relocation factors in detail in addition to
the section 5328 factors. While, pursuant to D.K., the trial court was not
required specifically to consider those relocation factors that were not
relevant to this case, we find no error in the trial court’s discussion of all of
the section 5337 custody factors in detail. Father’s first claim of error is
without merit.
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Father’s second through ninth issues challenge, in one way or another,
the trial court’s consideration or weighing of various factors. Specifically,
Father takes issue with the court’s consideration of the factors at section
5337(h)(1), (2), (7), and (10), and section 5328(a)(1), (3), (4), (5), (6),
(9), (10), (11), (12), (13), (14), and (15). Father’s Brief at 36-60.
First, Father believes the trial court was inconsistent in its discussion
of section 5337(h)(2) and section 5328(a)(10). In considering relocation
factor two, a trial court must assess:
(2) The age, developmental stage, needs of the child and the
likely impact the relocation will have on the child’s physical,
educational and emotional development, taking into
consideration any special needs of the child.
23 Pa.C.S.A. § 5337(h)(2). In considering custody factor ten, a trial court
must assess:
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
23 Pa.C.S.A. § 5328(a)(10).
According to Father, these two factors require “consideration of the
same identical issues. ‘Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special needs of
the child’.” Father’s Brief at 37 (emphasis in original). While the provisions
are similar, section 5328(a)(10) focuses upon the Child while section
5337(h)(2) focuses upon the effect of relocation upon the Child.
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Here, the trial court found that both parents are capable of meeting
Child’s needs under custody factor ten, but that relocation factor two favors
Mother because of the services Child receives from his current treatment
team in Wayne County and the possibility that he may need them in the
future. The record supports these findings and we find no abuse of the
court’s discretion in assessing these factors.
With regard to his other challenges to the factors, Father merely asks
us to review the evidence presented and weigh it differently than the trial
court. That we may not do. The trial court is the sole arbiter of the weight
assigned to evidence and the sole arbiter of the credibility of witnesses.
Ketterer, supra; S.M., supra (“The parties cannot dictate the amount of
weight the trial court places on evidence.”). Although the trial court
considered other factors, the trial court primarily relied upon Mother’s role as
primary caretaker and the involvement of Wayne County services in treating
Child’s special needs. The record supports these findings. The court need
not discuss every fact that went into its decision to satisfy the statutory
requirements. That the trial court did not mention all of the facts Father
finds important does not mean that the trial court did not consider those
facts. Ultimately, our task is to determine whether the record supports the
trial court’s decision. Here it does, and we find no abuse of discretion.
In his tenth issue, Father asserts that the trial court erred in failing to
find that there had been a significant change in circumstances since the
entry of July 31, 2012 custody order. Father’s Brief at 60-61. While at one
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time our case law provided that a party must show a change in
circumstances before a court could modify custody, see Agati v. Agati, 492
A.2d 427, 432 (Pa. Super. 1985), our Supreme Court since has held
otherwise. See Karis v. Karis, 544 A.2d 1328, 1332 (Pa. 1988) (“[W]e
hold that a petition for modification of a partial custody to shared custody
order requires the court to inquire into the best interest of the child
regardless of whether a ‘substantial’ change in circumstances has been
shown.”). Therefore, the trial court was not required to make a finding that
circumstances had changed in order to modify the custody order, if doing so
was in Child’s best interests. The trial court considered the appropriate best
interests factors and based its decision upon its review. This issue lacks
merit.
Father next contends that the trial court erred in failing to find that
Mother’s move from New Jersey to Pennsylvania was done in bad faith.
Father’s Brief at 62-63. Mother moved before she filed her original custody
complaint in August 2011. Since the move, the parties have had multiple
custody proceedings. Father provides no compelling reason that the move is
relevant to a custody determination in 2014. Therefore, we find no error in
the trial court’s failure to make this specific finding.
Finally, Father asserts that the trial court erred because it did not
include a specific schedule for holidays in the custody order. Father’s Brief
at 64-65. We have held that “[t]he matter of scheduling . . . is best left to
the discretion of the trial court.” Schwarcz v. Schwarcz, 548 A.2d 556,
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571 (Pa. Super. 1988). While a holiday schedule could have been included
in the order, the trial court’s task was to determine a schedule that reflects
Child’s best interests. As stated above, the trial court considered the
required factors and the record supports its determination of Child’s best
interests. Because that schedule does not conform to Father’s preferences
or expectations does not mean that the trial court erred.
Our review reveals that the record in this matter supports the trial
court’s findings and conclusions of law. Thus, the trial court did not abuse
its discretion. Accordingly, we affirm the February 18, 2014 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2014
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