S.L.L. v. K.N.D. ( 2015 )

J-A31034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.L.L. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
K.N.D.
Appellee No. 923 MDA 2014
Appeal from the Order entered May 1, 2014
In the Court of Common Pleas of Adams County
Civil Division at No: 10-S-372
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2015
Appellant S.L.L. (Father) appeals from the May 1, 2014 order of the
Court of Common Pleas of Adams County (trial court), which denied his
petition to modify Appellee K.N.D.’s (Mother) periods of custody of L.E.L.
(Child), born August 11, 2009. For the reasons set forth below, we affirm.
The facts and procedural history underlying this custody dispute are
uncontroverted.1 Father initiated this case by filing a complaint seeking
shared physical and legal custody of Child. In the complaint, Father alleged
that Child was born out of wedlock and had lived with Mother since his birth.
Father also alleged that, on July 5, 2009, prior to Child’s birth, the parties
had entered into a written agreement to share physical custody of Child.
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1
Unless another source is cited, the facts are taken from the trial court’s
Pa.R.A.P. 1925(a) Opinion, 6/17/14, at 1-9.
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Following a custody conference, on April 14, 2010, the trial court issued an
order granting shared legal custody of Child to both parents, primary
physical custody of Child to Mother, and partial physical custody of Child to
Father on alternating weekends and at such other times as the parties
mutually agree.
On November 1, 2010, Father petitioned the trial court to modify the
April 14, 2010 custody order. In his petition, Father alleged the parties had
been following an agreed-upon custody schedule that granted Father more
custody time than the April 14, 2010 order. Father also requested primary
physical custody of Child. In addition, Father asked the trial court to direct
Mother to discontinue posting pictures of Child and referring to Father on
Facebook and other social networking sites. Father also asked the trial court
to direct Mother to provide him with Child’s social security number and
health insurance information. Prior to trial, the parties entered into an
agreement, providing Mother and Father with shared legal and physical
custody of Child on an alternating weekly schedule. The trial court
memorialized the parties’ agreement in its January 21, 2011, order.
On September 16, 2011, Father petitioned the trial court to modify the
January 21, 2011 custody order. Father alleged he had sent Mother a notice
of his intention to relocate to which Mother replied that she did not oppose
the relocation to East Berlin so long as the custody schedule remained in full
force and effect with custody exchanges occurring in Gettysburg. Following
a custody conference and by agreement of the parties, the trial court issued
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an order on October 17, 2011, indicating Mother’s consent to Father’s
relocation to East Berlin and reflecting the parties’ continued agreement to
share physical custody of Child on an alternating weekly schedule.
On January 23, 2013, Father filed a petition for contempt and
modification of the October 17, 2011 custody order. Father requested that
the trial court hold Mother in contempt of its October 17, 2011 custody order
for enrolling Child in daycare without Father’s knowledge or consent and
failing to return Child to Mother’s residence so that Father could pick up
Child as provided by the custody order. Father also requested the court hold
Mother in contempt for making derogatory comments about Father in the
presence of Child and on Facebook, exiting her vehicle during a custody
exchange, working seven days in a row, refusing to allow Father to spend
time with Child while Mother worked, posting photographs of Child on
Facebook, and repeatedly arriving late for custody exchanges. Father
sought modifications to the October 17, 2011, custody order to the extent
he requested the trial court prohibit Child from spending time at Mother’s
boyfriend’s house, allow Mother to enroll Child in daycare at a mutually
agreeable location halfway from the parties’ homes, prevent Child from
handling snakes, require Mother to obtain an evaluation of Mother’s
boyfriend to determine if he is a threat to Child, and order that Child has no
contact with Mother’s boyfriend in the meantime.
On March 19, 2013, the trial court held a custody hearing at which
Mother acknowledged contempt of its October 17, 2011 order. Specifically,
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Mother admitted to, inter alia, posting pictures of Child on Facebook, making
disparaging remarks about Father in the presence of Child and on Facebook,
exiting her vehicle during custody exchanges, and giving Father the finger
during a custody exchange. As a result, the trial court adjudicated Mother in
contempt and directed her to pay $750.00 to Father. The $750.00 included
a $500.00 fine and attorney’s fees of $250.00. With respect to the
modification portion of Father’s petition, the trial court declined to alter the
custody order. Instead, it continued the shared physical custody
arrangement on an alternating weekly schedule.
On November 15, 2013, Father filed the instant petition for contempt
and modification of the March 19, 2013 custody order. Father alleged that
Mother violated the order by posting a picture of Child on her Facebook
page, making derogatory comments about Father in the presence of Child,
failing to give Father an opportunity to spend time with Child on Wednesday
evenings and Sundays when Mother was working,2 and altering a written
authorization to prevent Father’s fiancée from picking up Child at the
daycare. As a result, Father requested that the trial court allow him to
exercise custody on alternating Wednesdays and Sundays when Mother was
working, and direct Mother to sign all necessary daycare-related
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2
The March 19, 2013, order provided in part: “[i]n the event that either
party is unable to exercise custody for more than five (5) hours during their
period of custody, they will notify the other party and given them the
opportunity to exercise custody.” Trial Court Order, 3/19/13, at ¶ 20.
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authorization documents to allow Father, his fiancée and his mother to pick
up Child at the daycare. In addition, Father requested that the court order
Mother to reimburse Father for $1000.00 in attorney’s fees.
Following the withdrawal of Mother’s counsel, the trial court scheduled
a hearing on Father’s petition for January 23, 2014. On January 22, 2014,
the trial court rescheduled the hearing for March 3, 2014. On February 26,
2014, Attorney Katrina Luedtke entered her appearance on Mother’s behalf,
and Mother filed an answer to Father’s petition. Mother also filed a
counterclaim for modification of the March 19, 2013, custody order. In her
counterclaim, Mother requested, inter alia, that the trial court permit her to
enroll Child in the Fairfield Area School District Kindergarten for the 2014-
2015 school year. Father answered Mother’s counterclaim, denying, among
other things, that it was in Child’s best interests to attend Fairfield Area
School District. Father also reiterated his intention to exercise custody of
Child on Wednesdays and Sundays because, in so doing, Father would have
primary physical custody of Child. As a result, Father indicated he would be
permitted to enroll Child in the Bermudian Springs School District.
At the March 3, 2014 proceeding, the trial court did not hold a custody
hearing. After additional delays, however, the trial court finally scheduled a
hearing for April 16, 2014, at which both parties presented testimony.
Following the hearing, on April 16, 2014, the trial court issued an order
holding Mother in contempt of its March 19, 2013 order for making
disparaging and inappropriate remarks about Father in the presence of Child.
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The trial court, therefore, ordered Mother to pay Father’s attorney’s fees in
the amount of $950.00 and a fine of $500.00.
Regarding the custody portion of the pleadings, the trial court stated
on the record that (1) Mother and Father would continue to share physical
custody of Child, (2) Child would attend the Fairfield Area School District,
and (3) the parents would attend co-parent counseling. The trial court also
outlined several details for the new custody order. The court further
directed the parties’ attorneys to prepare a new custody order reflecting the
court’s decision.
On April 30, 2014, Father’s attorney indicated to the trial court that
the attorneys were unable to provide the requested order because of
Father’s intention to appeal some aspects of the trial court’s April 16, 2014
order.3 The trial court issued an order on May 1, 2014, memorializing its
April 16, 2014 ruling with respect to physical custody. In particular, the trial
court ordered, inter alia, shared physical custody would continue and that
Child would attend Fairfield Area School District. The trial court reasoned it
selected Fairfield Area School District, in which Mother resides, over
“Bermudian Springs School District because the custody schedule has
Mother with 7 overnights preceding the school day and Father 3 of such
overnights[.]” Trial Court Order, 5/1/14, at ¶ 16. Finally, explaining why it
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3
The docket indicates Father did not appeal from the trial court’s April 16,
2014 order holding Mother in contempt and imposing sanctions.
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chose to continue the shared physical custody arrangement, the trial court
remarked:
[T]he parties have had shared equal physical custody of [Child]
since at least October of 2011, [and Child] appears to be
thriving[.] [G]iven that factors 2, 2.1, 6, 7, 14, 15 and 16 [of 23
Pa.C.S.A. § 5328(a)] do not apply, and that all remaining
applicable factors indicate no advantage to either parent, the
result is that there is no reason to change the current custody
schedule.
Id. On May 29, 2014, Father timely appealed to this Court. Following
Father’s filing of a Pa.R.A.P. 1925(a)(2)(i) and (b) statement of errors
complained of on appeal, the trial court issued a Rule 1925(a) opinion.
Applying the Section 5328(a) custody factors, the trial court concluded the
parties should continue to share custody of Child, “who appears to be
thriving under this [arrangement].” Trial Court 1925(a) Opinion, 6/17/14, at
19-20. The trial court also reiterated its reasons for choosing Fairfield Area
School District over Bermudian Springs School District. Specifically, the trial
court explained under the existing custody arrangement that the parties
have been following for at least the last three years, “Mother would have
custody on seven of the overnights preceding school days and Father would
have three such overnights. [The trial court] chose the school district of the
parent who has more than twice as many school mornings to contend with
than the other parent.” Id.
On appeal, Father raises six issues for our review:
1. Whether the [t]rial [c]ourt abused its discretion and/or
committed an error of law in determining that factor (1) set forth
in 23 Pa.[C.S.A. §] 5328(a) presented “no advantage to either
parent” when Mother:” (1) testified at the hearing that she
preferred that [Child] spend time with maternal grandfather
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rather than Father and [sic]; and (2) testified at the hearing that
she followed through on her stated preference from March 2013
until February 2014 by allowing maternal grandfather to care for
[Child] while she worked during her periods of custody (nearly
every alternate Wednesday evening and Sunday) rather than
allow Father to spend this time with [Child] as required by the
March 2013 [o]rder[.]
2. Whether the [t]rial [c]ourt abused its discretion and/or
committed an error of law in determining that factor (4) set forth
in [Section 5328(a)] presented “no advantage to either parent”
when Mother: (1) works in Maryland; (2) is in the process of
getting engaged to her boyfriend who lives in Maryland; (3) the
[t]rial [c]ourt previously allowed Mother to enroll [Child] in
daycare in Maryland; and (4) Mother previously advised Father
that she intended to move to Maryland to live with her
boyfriend[.]
3. Whether the [t]rial [c]ourt abused its discretion and/or
committed an error of law in determining that factors (8) and
(13) set forth in [Section 5328(a)] presented “no advantage to
either parent” when Father presented evidence that: (1) Mother
has been using vulgar language directed toward him in the
presence of [Child] for nearly three (3) years; (2) Mother
previously admitted that she was in contempt of the October
2011 [o]rder for making disparaging remarks about Father in the
presence of [Child] and giving Father “the finger” in the presence
of [Child]; and (3) Mother was adjudicated in contempt at the
time of the April 2014 hearing for making disparaging remarks
about Father in the presence of [Child.]
4. Whether the [t]rial [c]ourt abused its discretion and/or
committed an error of law in determining that factors (9) and
(10) set forth in [Section 5328(a)] presented “no advantage to
either parent” when Mother chose to work rather than spend
time with [Child] during her periods of custody on nearly every
alternate Wednesday evening and Sunday from March 2013 until
February 2014[.]
5. Whether the [t]rial [c]ourt abused its discretion and/or
committed an error of law in determining that the parties should
continue with shared equal physical custody when both parents
testified to a high level of conflict, both parents testified to an
inability to communicate on even basic parenting issues, Father
and his fiancée testified that Mother continuously uses profanity
and screams at Father during custody exchanges, and Father
and his fiancée testified that Mother continuously attempts to
interfere with Father’s (or his fiancée’s) ability to pick [Child] up
at daycare[.]
6. Whether the [t]rial [c]ourt abused its discretion and/or
committed an error of law by excluding [Father’s] [e]xhibits 10
and 11 and/or prohibiting Father from calling Kevin Hyland, a
representative of Applebee’s, who prepared [Father’s] [e]xhibit
10 and [e]xhibit 11, to authenticate these exhibits so that Father
could use them to prove that Mother worked during her periods
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of physical custody on alternate Wednesday evenings and
Sundays from March 2013 through February 2014.
Father’s Brief at 4-5. Father essentially challenges the trial court’s
determination on custody factors 1, 4, 8, 9, 10, 13 and 16 of Section
5238(a) and the trial court’s decision to exclude exhibits 10 and 11 at trial.
We address Father’s claims 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.
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.A. § 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
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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.
(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).4
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4
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services). Because
(Footnote Continued Next Page)
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We begin our analysis by addressing Father’s evidentiary argument
that the trial court abused its discretion in excluding Father’s trial exhibits 10
and 11 and preventing Father from calling Kevin Hyland (Hyland), a
representative of Applebee’s, to testify for purposes of authenticating the
exhibits. Although Father challenges the trial court’s exclusion of the
exhibits in the question presented section of his brief, he fails to do the
same in the argument section. See Pa.R.A.P. 2119. In fact, the argument
section of his brief is bereft of any argument as to why the trial court abused
its discretion in excluding the trial exhibits. Rather, Father argues only that
the trial court abused its discretion in disallowing Mr. Hyland to authenticate
the exhibits. As such, we limit our discussion of Father’s evidentiary claims
only to this issue.
In support of his argument that the trial court abused its discretion in
disallowing Mr. Hyland to testify, Father points out that Mr. Hyland would
have testified that “he prepared [exhibits 10 and 11].” Father’s Brief at 18.
Father further argues that had the trial court permitted Mr. Hyland to testify,
Father would have been allowed to “testify as to which hours Mother worked
during her periods of physical custody on alternate Wednesday evenings and
_______________________
(Footnote Continued)
Father’s petition to modify was filed prior to the effective date of the
subsection, the subsection does not apply to the present case. See § 6 of
Act of December 18, 2013, P.L. 1167, No. 107, effective 1/1/14.
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Sundays from March 2013 through February 2014.” Id. We, however, find
this argument to be without merit.
Here, because Father does not argue any basis on which the trial court
abused its discretion to exclude exhibits 10 and 11 at trial, we discern no
reason to question the trial court’s decision to disallow the testimony of
Mr. Hyland. More important, as Father admits in his brief, Father offered the
testimony of Mr. Hyland only to authenticate exhibits 10 and 11, whose
exclusion he fails to challenge on appeal. Accordingly, the trial court did not
abuse its discretion in barring Father from calling Mr. Hyland to testify.
Nonetheless, assuming Father properly had challenged the exclusion of
the exhibits, we still would conclude the trial court did not abuse its
discretion. The exhibits, if they had been admitted into evidence, would
have been cumulative. See Pa.R.E. 403. Our review of the hearing
transcript indicates that Father testified as to precisely the same facts for
which Father sought to introduce the exhibits. That is, Father testified
Mother worked on the days she had custody of Child. Specifically, Father
testified on direct-examination:
I stopped down to Applebee’s to find her car in the parking lot
and her inside working on several Sundays and also several
Wednesdays when she was supposed to have [Child].
....
I would be down [at Applebee’s] after 9 o’clock when she should
have been home with [Child], Sundays mainly.
N.T. Hearing, 4/16/14, at 29-30. Moreover, Father’s attorney cross-
examined Mother on this subject. See id. at 60-61, 71. Although Mother
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acknowledged Father visited her employment location, she disputed the
frequency of such visits by remarking “not as often as he just stated.” Id.
at 61. Also, Mother denied she violated the March 19, 2013, order by
working longer than five hours on days when she had custody of Child. Id.
Given the parties’ testimony, the trial court did not abuse its discretion in
excluding exhibits 10 and 11. We note the trial court found “[b]y the time of
trial the information in the exhibits was irrelevant because in fact Mother
was not working on Sundays. And even if she had been, she made
appropriate child care arrangements during her work hours.” Trial Court
1925(a) Opinion, 6/17/14, at 18.
We now turn to Father’s argument that the trial court abused its
discretion on custody factor 1 of the Section 5328(a), which relates to
“[w]hich party is more likely to encourage and permit frequent and
continuing contact between the child and another party.” 23 Pa.C.S.A.
§ 5328(a)(1). In this regard, Father argues that factor 1 favors him because
Mother did not provide him an opportunity to exercise custody over Child on
certain Wednesday evenings and Sundays when she was working at
Applebee’s. Father’s Brief at 13. Rather, Father argues, Mother chose
maternal grandfather over him to look after Child. Id.
Based on our review of the record, we agree with the trial court’s
conclusion that factor 1 does not favor either parent. As the trial court
found:
Father suggests . . . there was an example of Mother not
being the accommodating parent, specifically not encouraging or
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permitting frequent and continuing contact between [Child] and
Father. Father’s example is Mother’s response to Father’s
attorney’s repetitive questioning about Mother preferring [Child]
have time with maternal grandfather rather than with Father. In
the context of that questioning, Father’s attorney was inquiring
about Mother’s work schedule and why she would work instead
of wanting to be with [Child], and Mother explained that she was
attempting to earn additional income in order to better provide
for [Child]. During these periods of employment, [Child’s]
caregiver was maternal grandfather.
At some point during the proceedings, Mother offered to
meet Father half-way on school mornings and assist in the
transportation of [Child] to school from Father’s residence for
mornings following overnights at Father’s residence preceding a
school day. That is hardly an offer made by someone who is not
an accommodating parent.
Trial Court 1925(a) Opinion, 6/17/14, at 12-13. Because there is record
evidence tending to be in favor of and against either parent on this factor,
and because we defer to the trial court with respect to the weight of the
evidence, we discern no reason to reverse the trial court’s ruling on factor 1.
We next address Father’s argument that factor 4 of Section 5328(a),
which pertains to “[t]he need for stability and continuity in the child’s
education, family life and community life,” favors him. Specifically, Father
argues Mother would not provide stability and continuity to Child because
Mother resides in her father’s home and eventually intends to relocate to
Maryland to be with her boyfriend. Father’s Brief at 14. By comparison,
Father argues he meets the requirements of factor 4 because “[he] has
owned his own home in a gated community for nearly three (3) years,
worked the same work schedule at L.B. Ford for more than one year, and
was engaged to be married in May 2014.” Id. at 15. Based on our review
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of the record, however, we agree with the trial court’s determination on this
factor. The trial court noted:
Father indicates that at one time Mother, who works in
Maryland, advised Father that she intended to move to Maryland
to live with her boyfriend. [The court] assumes that Father
somehow thinks this means that Mother’s living situation is not
as stable as that of Father’s. Mother in fact did not move to
Maryland and instead resides in Fairfield, Adams County,
Pennsylvania, area. Both parties stipulated that the living
facilities of the other parent were satisfactory.
Trial Court 1925(a) Opinion, 6/17/14, at 14 (emphasis added). Accordingly,
the trial court did not abuse its discretion in ruling that factor 4 favors
neither parent.
Father next argues that the trial court abused its discretion with
respect to factor 8, relating to attempts of a parent to turn the child against
the other parent, and factor 13, relating to the level of conflict between the
parties and the willingness and ability of the parties to cooperate with one
another. Concerning factor 8, the trial court explained:
Father claims that somehow [factor 8] favors [him] because
Mother has used vulgar language towards Father in the presence
of [Child] for nearly three years. Father’s assertion is not
related to [factor 8]. There is nothing in the record to suggest
that either parent has tried to turn [Child] against the other
parent.
Trial Court 1925(a) Opinion, 6/17/14, at 15. Explaining its determination on
factor 13, the trial court noted:
[Father] suggests that Mother’s vulgar language toward him
gives Father an advantage under [factor 13]. It is correct that
Mother has used inappropriate language toward Father in the
presence of [Child] and the March 19, 2013 [o]rder of [trial
court] acknowledged her contempt for that conduct and
sanctioned her $750.00, calculated as a $500.00 fine and
$250.00 toward attorney’s fees. On April 16, 2014, [the court]
again found Mother in contempt for making disparaging or
inappropriate remarks with regard to Father in the presence and
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hearing of [Child], and ordered her to pay attorney’s fees in the
amount of $950.00 and pay a fine of $500.00 for a total of
$1450.00. What Father is complaining of is a contempt issue[.]
Id. at 17. As the trial court noted, and our review of the record confirms,
Father did not present any evidence at the hearing, nor does he point to any
in his brief, that Mother attempted to turn Child against him. In fact, the
trial court is correct in concluding that, under the circumstances of this case,
Father’s arguments in support of factors 8 and 13 are reserved appropriately
for a contempt proceeding.5 Accordingly, we do not find the trial court
abused its discretion in concluding that factors 8 and 13 do not favor either
parent.6
Father also argues that factors 9 and 10 of Section 5328(a) favor him
contrary to the trial court’s determination that they do not favor either
parent. Factor 9 relates to “[w]hich party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child adequate for the
child’s emotional needs,” 23 Pa.C.S.A. § 5328(a)(9), and factor 10 pertains
to “[w]hich 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).
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5
As mentioned earlier, to the extent Father attempts to challenge any
aspect of the April 16, 2014 contempt order, such challenges are waived
because Father failed to appeal from the order within 30 days.
6
To the extent there is a high level of conflict between the parents, the trial
court ordered the parties to participate in co-parent counseling. See Trial
Court Order, 5/1/14, at ¶ 14.
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Here, Father argues that factors 9 and 10 favor him because Mother
chose to work alternate Wednesday evenings and Sundays instead of caring
for Child. We disagree. As the trial court aptly stated “Father suggests that
because Mother chose to earn additional income by working extra hours that
[factors 9 and 10 favor] Father. There is no connection between Mother’s
working extra hours and [factors 9 and 10.]” Trial Court 1925(a) Opinion,
6/17/14, at 15 (emphasis added). According, we discern no abuse of
discretion.
Citing factor 16 of Section 5328(a) (catchall provision), Appellant
finally argues the trial court abused its discretion by continuing to direct the
parents to share physical custody of Child. Appellant argues:
At [t]rial, both parties testified to a high level of conflict, both
testified to an inability to communicate on even basic parenting
issue, Father and his fiancée testified that Mother continuously
uses profanity and screams at Father during custody exchanges,
and Father and his fiancée testified that Mother continuously
attempts to interfere with Father’s (or his fiancée’s) ability to
pick [Child] up at daycare. Under these circumstances, the
[t]rial [c]ourt should not have ordered a shared arrangement.
Father’s Brief at 17. Father also cites our decision in Hill v. Hill, 619 A.2d
1086 (Pa. Super. 1993) for the proposition that “‘in order to support a
decision of shared custody, the court must make a determination that the
parties are capable of cooperating, even minimally.’” 7 Father’s Brief at 18
(internal citation omitted).
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7
In Hill, we held that shared custody is appropriate where: (1) both parents
are capable of providing love and making reasonable child rearing decisions;
(2) both parents demonstrate a desire to remain a part of the child’s life; (3)
(Footnote Continued Next Page)
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Here, despite Father advancing his preferred version of the facts, our
review of the records reveals no evidentiary support to sustain Father’s
argument that the parties are unable to cooperate minimally. Therefore, we
agree with the trial court “[t]here was no information produced at trial
suggesting that the [shared equal physical custody] schedule should be
changed.” Trial Court 1925(a) Opinion, 6/17/14, at 20. The trial court,
however, tacitly found a major source of discontent between the parties was
Mother’s decision to enroll Child in her school district, i.e., Fairfield Area
School District. See id. at 19-20. Nevertheless, because the underlying
concern in any custody proceeding is the best interest and welfare of the
child, and the trial court specifically found that Child “appears to be thriving”
under the shared physical custody arrangement, id. at 20, we find the trial
court did not abuse its discretion in concluding factor 16 favored neither
parent. We, therefore, conclude the trial court did not abuse its discretion in
continuing to order shared physical custody of Child.
Order affirmed.
_______________________
(Footnote Continued)
the child sees each parent as a source of security and love; and (4) the
parents can manage a minimal amount of cooperation. Id. at 1088 n.1.
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J-A31034-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2015
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