D.G.L., Jr. v. J.M.L. ( 2018 )

J. A24043/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
D.G.L., JR., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 454 MDA 2018
:
J.M.L. :
Appeal from the Order Entered February 9, 2018,
in the Court of Common Pleas of Berks County
Civil Division at No. 11-17209
BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 24, 2018
D.G.L., Jr. (“Father”), appeals from the February 9, 2018 order1 that
confirmed the November 13, 2017 final custody order that awarded J.M.L.
(“Mother”) sole legal and primary physical custody of the parties’ son E.C.L.
(“Child”) and that awarded Father partial physical custody of Child. We affirm.
The trial court set the following findings of fact:
1. [Father] currently resides [in] Exeter, Berks
County [and] is 47 years old.
2. [Mother] currently resides [in] Exeter, Berks
County [and] is 42 years old.
1 We note that the trial court executed the order on February 8, 2018, but the
order was not entered on the docket until February 9, 2018. As an appeal is
properly taken from an order that has been entered on the docket, we have
corrected the caption to accurately reflect the date that the order from which
Father appeals was entered on the docket. See Pa.R.A.P. 903(a) (requiring
that a notice of appeal must be filed within 30 days after “entry of the order
from which the appeal is taken”).
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3. Mother and Father are the natural parents of
one child: [Child], age 9.
4. The parties married on November 2, 1999 and
were divorced in May 2012.
5. Mother is employed by [an investment firm] as
a Team Leader.
6. Father is employed as a Tax Accountant [].
7. Father and Mother both live in the Exeter School
District.
8. [C]hild is currently enrolled in 4th grade in the
Exeter School District [].
9. Both parties have appropriate housing within a
short drive of each other.
10. Father lives alone.
11. Mother lives alone.
12. [C]hild suffers from severe constipation and
bowel obstruction issues and must take laxative
medication and vitamins on a daily basis.
[C]hild’s symptoms began when Mother and
Father separated.
13. Mother and Father have such a contentious
relationship that they can only communicate in
writing.
14. Father has an extremely hostile relationship
with Mother’s parents with both sides accusing
the other of stalking and harassment.
15. The parties attempted to engage in
co-parenting therapy sessions but Father
stopped attending because he felt it was not
productive. The co-parenting therapist found
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that Father would fixate on irrelevant past
issues and sabotage any potential progress.
16. Play therapy was recommended for [C]hild but
Father interfered and alienated the therapists to
such a point that the therapist refused to let
Father attend sessions and Father revoked his
consent for [C]hild to be treated.
17. By order of this Court, a Custody Evaluation was
conducted by Dr. Richard Small, Ph.D. Dr. Small
recommended that the parties share physical
custody on as equal a basis as possible without
disrupting [C]hild’s school schedule.
18. Dr. Small found Father to be very anxious and
obsessive over details.
19. Father accuses Mother of not communicating
events and information in a timely manner yet
Father fails to regularly check Our Family Wizard
and refuses certified mail from Mother
containing medical information for [C]hild.
Trial court opinion, 11/13/17 at 1-3.
The record reflects that following entry of the final custody order on
November 13, 2017, Father filed a motion for post-trial relief and a motion for
reconsideration of the custody order on November 20, 2017. The trial court
held argument on Father’s motion for reconsideration of the custody order.
On February 9, 2018, the trial court entered the order confirming the final
custody order. Father filed a timely notice of appeal, together with a concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). Subsequently, the trial court filed a
Rule 1925(a)(2)(ii) opinion wherein it relied on its reasoning and incorporated
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by reference its findings of facts and conclusions of law set forth in its
November 13, 2017 opinion and final custody order.
Father raises the following issues for our review:
[1.] Wheather [sic] the trial court erred and
committed an abuse of discretion in awarding
Mother primary physical custody and sole legal
custody of the minor Child rather than awarding
shared physical and legal custody?
[2.] Whether the trial court’s failure to give sufficient
weight to the testimony of Dr. Richard F. Small,
Dr. Matthew Shollenberger, and Dr. Linda
Kennedy Hassel is an abuse of discretion and
not supported by credible evidence of record?[2]
Father’s brief at 7 (full capitalization omitted).
In reviewing a custody order, our scope is of the
broadest type and our standard is abuse of discretion.
This Court 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. We defer to the credibility
determinations of the presiding trial judge, who
2 Mother suggests that we find this issue waived on appeal because Father
failed to raise a weight claim with respect to these “three specific witnesses”
in his Pa.R.A.P. 1925(a)(2)(i) statement which “clearly prevent[ed] the judge
from addressing the issue”. (Mother’s brief at 23-24.) We decline to find
waiver. The record reflects that Father raised weight challenges with respect
to the testimony of “several witnesses, including experts” in his motion for
post-trial relief and motion for reconsideration. (See Father’s motion for
post-trial relief pursuant to Pa.R.Civ.P. 227.1 and motion for reconsideration,
11/20/17 at 1, ¶ 3.) As the trial court filed a Rule 1925(a)(2)(ii) opinion that
relied upon its reasoning and incorporated by reference its findings of fact and
conclusions of law set forth in its November 13, 2017 opinion and final custody
order that effectively denied Father’s motions for post-trial relief and
reconsideration, Father’s failure to specifically identify these three expert
witnesses by name in his Rule 1925(a)(2)(i) statement did not deprive the
trial court of the opportunity to explain its decision and does not impede
appellate review.
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viewed and assessed the witnesses first-hand. We,
however, are not bound by the trial court’s deductions
or inferences from its factual findings, and ultimately,
the test is whether the trial court’s conclusions are
unreasonable as shown by the evidence of record. We
may reject the trial court’s conclusions only if they
involve an error of law, or are unreasonable in light of
the sustainable findings of the trial court.
When a trial court orders a form of custody, the best
interest of the child is paramount. A non-exclusive list
of factors a court should consider when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a).
(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.
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(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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P.J.P. v. M.M., 185 A.3d 413, 417-418 (Pa.Super. 2018) (internal citations,
quotation marks, and brackets omitted).
Here, the trial court weighed Factors 1, 3, 5, 9, 10, 12, 13, and 15 in
Mother’s favor. (Trial court opinion, 11/13/17 at 4-7.) Factors 2, 4, 6, 7, 8,
11, and 14 weighed in favor of neither party. (Id.) With respect to Factor 16
(any other relevant factor), the trial court noted:
While it is evident that Mother and Father both love
[C]hild very much, there is room to improve in their
co-parenting relationship. Father’s rigidity and need
to control the narrative have greatly impeded any
meaningful co-parenting progress and have also
sabotaged the therapy process that was
recommended for [C]hild. Although Dr. Small
recommended a 50-50 physical custody arrangement,
the Court is not convinced that is appropriate at this
time given Father’s obstinance and refusal to take
responsibility in his role in putting his obsession with
custody before the best interest of his own son. Father
needs to make more diligent efforts to keep up to date
with Our Family Wizard so that he is better able to
participate in [C]hild’s activities and respond in a more
timely fashion to Mother. It would also benefit [C]hild
if Mother and Father would resume co-parenting
counseling, in good faith, with a new therapist.
Id. at 7.
In his brief, Father reiterates the trial court’s analysis of the
best-interests factors, and where Father disagrees with the trial court’s
conclusion, he invites us to reweigh the evidence in an attempt to convince us
to arrive at a different result. (Father’s brief at 10-20.) We decline Father’s
invitation because our role as an appellate court “does not include making
independent factual determinations.” P.J.P., 185 A.3d at 417. Our review of
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the record reveals that the trial court adequately considered the statutory
factors and set forth its reasoning, as supported by the record, for awarding
Mother sole legal and primary physical custody of Child and awarding Father
partial physical custody of Child. We find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
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