B.M. v. K.J.P. ( 2015 )

J-A11031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
K.J.P.
Appellee No. 3156 EDA 2014
Appeal from the Order of October 7, 2014
In the Court of Common Pleas of Pike County
Civil Division at No.: 1832 Civil 2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED MAY 06, 2015
B.M. (“Father”) appeals the October 7, 2014 order in which the trial
court granted primary physical custody of the parties’ three minor children
to K.J.P. (“Mother”). We affirm.
Father and Mother, who were never married, have three children: A.M.
(born in February 2006), B.L.M. (born in September 2007), and L.M. (born
in January 2010). Mother has an older daughter, M.N. (born in June 2000),
from a prior relationship. The parties started living together in August 2003.
Notes of Testimony (“N.T.”), 10/2/2014, at 91. The parties separated in
January 2013. Id. at 31.
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Mother and Father filed reciprocal Protection from Abuse (“PFA”)
petitions.1 In January 2013, as part of the order resolving the PFA petitions,
Mother was awarded primary physical custody of the children and Father
received partial custody.2 The parties shared legal custody. The PFA order
expired in April 2013, but the parties continued to abide by the custody
arrangement set forth in the order.3 Trial Court Findings of Fact,
Conclusions of Law, and Order (“Order”), 10/7/2014, at 2.
On November 14, 2013, Father filed a complaint seeking primary
custody. On October 2, 2014, the trial court held a custody hearing.
At the hearing, Father testified that he had been living with his
girlfriend, J.R., since March 2014. N.T. at 10. Father testified that he works
for his parents’ company doing HVAC repair, which provided him with
flexibility in his schedule. Id. at 13. Father typically works from 9 a.m. until
3 p.m., although he is on-call when the temperature drops below freezing
and can get called out on nights or weekends. Id. at 34-35. Father testified
that, if he is unable to be home during his custody time, J.R. or his mother
____________________________________________
1
The PFA petitions are not part of the certified record and neither party
testified regarding the exact dates that the petitions were filed. From the
testimony, it appears that the petitions were filed in late December 2012 or
early January 2013.
2
This order also is not part of the certified record.
3
Father has custody of the children every Tuesday overnight and the
first, second and fourth weekends of the month from Friday evening until
Sunday evening. N.T. at 12.
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watch the children. Id. at 18. Father asserted that Mother had left the
children unsupervised or had left the children in the care of M.N. Id. at 19-
23.
Father testified that the two older children were doing well in school.
Id. at 25. Father noted that, if awarded primary custody, the children would
have to change schools. Id. at 12. The older children also are involved in
various sports. Id. at 26. Despite the prior custody order expiring, the
parties remained on the same schedule and were able to agree to occasional
modifications when one parent or the other wanted additional time with the
children for vacations or other events. Id. at 33-34.
Father testified that, toward the end of their relationship, Mother was
drinking more heavily and the bulk of parenting responsibilities fell upon
him. N.T. at 29. Father believed that Mother had a drinking problem and
testified that Mother would not return home after her bartending shifts until
6 or 8 a.m. Id. at 23. Father alleged that Mother sometimes was violent
and angry when she drank and that the children witnessed this behavior.
Id. at 50-51. Despite Father’s concerns about Mother’s drinking, he
consented to the initial custody arrangement that provided Mother with
primary custody. Id. at 43.
J.R. testified that Father had a good relationship with the children and
that he was a good father. N.T. at 58-60. S.M., Father’s brother, also
described Father as an involved, caring parent. Id. at 71-72, 74.
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S.M. testified that he lived with the parties in fall 2012, and that,
during that time, Mother often would return home intoxicated. Id. at 67-68.
S.M. recounted one occasion when Mother came home and started breaking
things and screaming while the children were present. Id. at 68.
Because of the allegations regarding Mother’s alcohol use, the trial
court ordered a pre-trial alcohol assessment of Mother. Erin Gilpatrick, a
licensed drug and alcohol counselor with Catholic Social Services, conducted
the psychosocial evaluation. N.T. at 6. Ms. Gilpatrick recommended that
Mother participate in three individual sessions following the evaluation. Id.
at 7. Mother was cooperative in the sessions and she was discharged
successfully from treatment. Id. at 9.
Mother testified that she stayed home after A.M. was born. N.T. at 92.
Mother was home with the children full-time until A.M. was four, when the
two oldest began to attend a half-day pre-school. Id. at 95. Mother
bartended on occasion, at most one night per week. Id. at 93. Mother
testified that, at the time of the hearing, she was doing an externship as
part of her training for a medical assistant position. Id. at 104. She
anticipates being hired by the office where she did her externship after she
completes her training and to work a schedule that allows her to be available
to the children before and after school. Id. at 104-05.
Mother testified that the parties had followed the custody schedule set
forth in the PFA order even after it expired and the parties were able to
agree on custody for holidays and vacations that were not outlined in the
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order. Id. at 100-02. Mother stated that she attends most of the children’s
games and practices. Id. at 117-19. Mother testified that she was the
primary caregiver for the children, taking them to the doctor and dentist
both before and after separation. Id. at 121-22. The children do well in
school and have good attendance. Id. at 123-24.
Mother admitted that she developed a problem with alcohol use after
M.N.’s father committed suicide in 2011. Id. at 109-10. Mother stated that
she was depressed and starting drinking to feel better. Id. at 109. Mother
acknowledged that she would drink after bartending three nights a week and
would stay out late. Id. at 110-11. Mother sought out counseling in
December 2012 and attended for approximately three months. Id. at 130.
Mother testified that she reduced her drinking and she does not drink when
the children are in her custody. Id. at 112. Mother participated in the three
recommended sessions with Catholic Social Services and was discharged.
Id. at 128.
On October 7, 2014, the trial court issued its findings of fact,
conclusions of law, and order. The court awarded primary custody to Mother
and partial custody to Father. Father was awarded custody every Tuesday
overnight and every first, second, and fourth weekend of the month from
Friday evening until Monday evening. Order at 9. The trial court found that
the schedule that the parties had been following had served the children’s
best interests. Id.
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On November 4, 2014, Father timely filed a notice of appeal. Father
did not file a concise statement of errors complained of on appeal with his
notice of appeal as is required by Pa.R.A.P. 1925(a)(2)(i). However, the trial
court ordered a concise statement pursuant to Pa.R.A.P. 1925(b), and Father
timely complied. Because Father filed a concise statement and the trial
court has responded to the merits of Father’s appeal, we will overlook this
procedural error. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)
(holding that failure to file concise statement contemporaneously with notice
of appeal results not in automatic waiver for failure to file a timely concise
statement, but will be decided case-by-case).
Father raises three issues for our review:
A. Whether the trial court erred as a matter of law and abused
its discretion in awarding primary physical custody to
[Mother] since based upon the evidence presented during the
custody trial, primary physical custody should have been
awarded to [Father].
B. Whether the trial court erred as a matter of law and abused
its discretion in that it improperly applied and weighed the
custody factor[s]/considerations set forth in 23 Pa.C.S.A.
§ 5328.
C. Whether the trial court erred as a matter of law and abused
its discretion in finding that [Mother] was providing proper
care for the children and that when she is not available, she
arranges proper and adequate child care, since such a finding
was not substantiated by the evidence.
Father’s Brief at 12 (footnote omitted). All three of Father’s issues are
intertwined and contest the trial court’s findings of fact and the weight that
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the trial court attributed to those findings. Father argues the issues together
and we will address them together.
Our scope and standard of review are well-settled.
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.
D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014).
In awarding custody, the court’s main concern is the best interests of
the children. Id. at 474. To that end, our statutes enumerate a list of
factors that the trial court must consider in determining the children’s best
interests. They are as follows:
(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).
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(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).
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The trial court discussed each factor in its October 7, 2014 order. The
trial court found that each party encouraged and permitted frequent contact
with the other party and that the parties were able to work together to
modify the custody arrangement as needed. Order at 3 ¶ 14a. The trial
court determined that there was no evidence of physical abuse except for
the incidents leading to the PFAs. It found that both parties were capable of
providing supervision for the children. Id. at ¶ 14b. Both parties were
capable of providing proper care and performing parental duties for the
children. Id. at ¶ 14c. The trial court found that both parties provide
stability and continuity, encourage participation in the community, attend
the children’s activities, and have extended family in the area with which the
children have a connection. Id. at 3-4 ¶ 14d-e. The children’s half-sibling,
M.N., lives with Mother full-time and the children have a relationship with
her. Id. at 4 ¶ 14f.
The children did not testify. The trial court found that the parties were
encouraging a relationship between the children and the other parent, even
though the parties rarely communicated directly. Id. at ¶ 14h. The court
determined that each parent has a loving and involved relationship with the
children. Id. at 4-5 ¶ 14i. Further, both parties provided for the children’s
needs on a daily basis. Id. at 5 ¶ 14j. The parties lived close enough that
there were no transportation issues. Id. at ¶ 14k. The court found that
both parties were able to provide adequate child care because their work
schedules accommodated the children’s school schedule and that each would
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have to make child care arrangements in the summer. Id. at 5-6 ¶ 14l.
The trial court determined that the parties have cooperated with each other,
and that their relationship appeared to be free of conflict, excepting the PFAs
that stemmed from the ending of the parties’ relationship. Id. at 6 ¶ 14m.
Finally, the trial court acknowledged Mother’s prior alcohol abuse. The
court found that Mother had completed successfully her assessment and
attended treatment. The court also recognized Father’s prior conviction for
drug possession, but found no evidence of a continuing drug use. Id. at
¶ 14n. The court also found no evidence of any mental or physical condition
of the parties or members of their household that would interfere with the
ability to care for the children. Id. at 6-7 ¶ 14o.
Father contends that the evidence does not support the trial court’s
conclusions that Mother’s alcohol abuse has not continued. However, Mother
entered an evaluation and participated in the recommended treatment. She
was discharged from further treatment by a licensed drug and alcohol
counselor. The court cited Mother’s testimony that her drinking began when
M.N.’s father committed suicide and that she no longer drinks when she has
custody of the children. We will not disturb the court’s credibility
determinations. We find no abuse of discretion in the court’s crediting the
testimony of Mother and a licensed counselor.
Father also argues that the court erred in finding that Mother regularly
attended the children’s extracurricular activities. Mother testified that she
attends some, but not all, of the children’s games and practices. While the
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court found that the parents are both involved in the children’s daily
activities, the trial court recognized that Mother provided for medical and
dental care while Father coached the children’s teams and ran one of the
leagues. Order at 5 ¶14j. The trial court’s conclusions with regard to the
parents’ involvement with their children are supported by the record.
Father contends that there was no evidence of the children’s
relationship with Mother’s extended family or with M.N. However, Mother
testified that the children have a good relationship with her parents, her
sister, and her sister’s children. N.T. at 116-17. The trial court was entitled
to credit that testimony. M.N. lives in the same house as the children. The
trial court drew a reasonable inference from that fact that “[t]he three
children certainly know this half-sister and they have a permanent
relationship with her.” Order at 4 ¶ 14f.
Father also asserts that Mother does not provide adequate supervision
for the children. Father testified about occasions when the children were
unsupervised or supervised by M.N. The trial court found that both parties
were providing adequate supervision and that their work schedules
accommodated the children’s school schedules. The trial court did not credit
Father’s testimony. We will not disturb the trial court’s credibility
determinations as the trial court is in the best position to observe the
witnesses.
Finally, Father argues that the evidence demonstrated that he is more
able to provide a stable, nurturing relationship and provide for the children’s
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daily needs. Both parties testified about their love and involvement with the
children and about how they provide for the children’s needs. Father had
additional witnesses to corroborate his testimony. However, just because
Mother did not have corroborating witnesses does not mean the trial court
could not credit Mother’s testimony and find that she also was capable of
providing for the children.
The trial court decided that the parties were working well together
under the current arrangement and that the children were thriving. As such,
the court found no reason to change the custody schedule. The trial court’s
findings are supported by the record. We find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
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