A.D. v. A.B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.D. A/K/A A.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
A.B. : No. 747 EDA 2017
Appeal from the Order Entered February 1, 2017
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-20761
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 03, 2017
A.D., a/k/a A.A. (“Mother”), appeals from the February 1, 2017 order
in the Court of Common Pleas of Montgomery County which granted, in part,
the petition for modification of the existing custody order filed by A.B.
(“Father”), with respect to the parties’ son, S.B. (“Child”), born in July 2011.
We affirm.
For a recitation of the complete factual background and procedural
history of this case, we refer the interested reader to the trial court’s
comprehensive opinion. See Trial Court Opinion, 4/17/17, at 1-3.
By way of background, Father filed the petition for modification of the
existing custody order on February 24, 2016. The agreed-upon existing
order, dated August 1, 2013, in the Court of Common Pleas of Philadelphia
County, granted the parties shared legal custody, Mother primary physical
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custody, and Father partial physical custody every Tuesday from 7:00 p.m.
until Wednesday at 7:00 p.m. and on alternating weekends from Friday at
7:00 p.m. until Monday at 7:00 p.m. In addition, the agreed-upon order
permitted Mother to relocate with Child from Haverford, Montgomery
County, to Lancaster, Lancaster County. Further, the order transferred
venue of the custody case from Philadelphia County to Montgomery County.
Father has resided in Gladwyne, Montgomery County, in the Lower Merion
School District, since that time.
In the subject petition, Father requested an award of primary physical
custody and a determination by the court regarding which school Child will
attend for the 2016-2017 school year, when he would be in kindergarten.
The court held a protracted custody hearing approximately eleven months
later, on January 17, 18, and 20, 2017. Father testified on his own behalf
and presented the testimony of Diana S. Rosenstein, Ph.D., the court-
appointed custody evaluator; N.B., Father’s wife; N.G., a woman whose son
is Child’s friend; K.E., Father’s next-door neighbor; and Patricia Norton, the
director of St. Christopher’s Day School in Gladwyne, Montgomery County,
where Child attended pre-school. Mother testified on her own behalf and
presented the testimony of A.W., her friend who lives in Ardmore, Delaware
County; D.D.R.D., Child’s maternal grandmother; D.A.D., Child’s maternal
aunt; and C.W.A., Mother’s husband.
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By order entered on February 2, 2017, the trial court maintained
shared legal custody between the parties. The court granted the parties
shared physical custody1 during the remainder of the 2016-2017 school
year. Specifically, the court granted Father custody every Wednesday from
after school through 7:00 p.m. in the Lancaster area. In addition, the court
granted Father custody on multiple weekends set forth in the order. The
court granted Mother physical custody at all other times not set forth in the
order. For the summer of 2017, the court granted the parties equally shared
physical custody on an alternating weekly basis.
Moreover, effective on September 1, 2017, the court granted Father
primary physical custody2 during the school year, when Child would be in
first grade. The court directed that Child attend Gladwyne Elementary School
in the Lower Merion School District. The court granted Mother partial
physical custody3 during the school year one weekday each week from after
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1
The Child Custody Act (the “Act”), 23 Pa.C.S.A. §§ 5321-5340, defines
“shared physical custody” as “[t]he right of more than one individual to
assume physical custody of the child, each having significant periods of
physical custodial time with the child.” 23 Pa.C.S.A. § 5322.
2
We observe that the court did not designate the custody award to Father
effective on September 1, 2017, as “primary physical custody.” The Act
defines “primary physical custody” as the “right to assume physical custody
of the child for the majority of time.” 23 Pa.C.S.A. § 5322. We deem the
court’s award to Father as “primary physical custody.”
3
Likewise, the court did not designate the custody award to Mother effective
on September 1, 2017, as “partial physical custody.” The Act defines “partial
(Footnote Continued Next Page)
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school through 7:30 p.m. in the Lower Merion area4 and on alternating
weekends. The court directed that, “[t]o every extent possible, Mother’s
weekend should include those weekends where there are school holidays
attached to them.” Order, 2/2/17, at ¶ 5(b) (footnote omitted). Beginning in
the summer of 2018, the court granted Mother primary physical custody and
Father partial physical custody every Wednesday from 4:30 p.m. until 7:00
p.m. and on alternating weekends during the summer. In addition, the court
set a holiday schedule.
Mother timely filed a notice of appeal and a concise statement of
errors complained of on appeal. The trial court authored a Rule 1925(a)
opinion.
On appeal, Mother presents the following issues for our review:
I. Did the [t]rial [c]ourt err and commit an abuse of discretion
when the [c]ourt granted, in effect, primary physical custody to
. . . Father, including setting forth a change of school schedule
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(Footnote Continued)
physical custody” as the “right to assume physical custody of the child for
less than a majority of the time.” 23 Pa.C.S.A. § 5322. We deem the court’s
award to Mother as “partial physical custody.”
4
With respect to Mother’s weekday visit, the court directed as follows.
The parties may need to exercise flexibility for the weekday visit
if Mother is not able to otherwise adjust her work schedule to be
in Gladwyne for the after school pick up. A possible alternative
may be that Father facilitates transportation of [Child] back and
forth to the Ardmore residence of Mother’s friend to ease the
pressure of transportation for these visits on Mother.
Order, 2/2/17, at ¶ 5(d).
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for the remainder of the 2016-2017 school year and changing
the minor child’s school location for the 2017-2018 school year
as said decision is not supported by the evidence presented?
Did the [t]rial [c]ourt further err in limiting [Mother’s] custodial
time significantly, starting in the 2017-2018 year, so that the
new Order reflects far less custodial time for [Mother] than she
has enjoyed since the birth of the minor child as well as limiting
[Mother’s] time since the schedule set forth by the [c]ourt
conflicts with [Mother’s] work schedule to such a degree that
[Mother] is unable to exercise her limited custodial time?
II. Did the [t]rial [c]ourt err and commit an abuse of discretion
when the [c]ourt failed to properly consider the factual history of
this case, including the criminal conviction of [Father] for an act
of violence against [Mother] at which the minor child was
present, the prior December 2014 Order of the Court of Common
Pleas [of] Montgomery County[,] and the August 2013 [a]greed
[o]rder of the Court of Common Pleas [of] Philadelphia County?
III. Did the [t]rial [c]ourt err and commit an abuse of discretion
when the [c]ourt stated that no evidence from prior to December
of 2014 would be admissible and then such information was
considered by the [t]rial [c]ourt informing its Findings of Fact
and Conclusions of Law?
IV. Did the [t]rial [c]ourt err and commit an abuse of discretion
in the [c]ourt’s determination of proper venue and jurisdiction
for this case as the minor child lived, by agreement of the
parties, in Lancaster County for a period of time well in excess of
the statutory six months and such primary residence was agreed
upon by the parties to this case in August of 2013[?] Such
residence was confirmed by the Montgomery County Court of
Common Pleas in December of 2014. Did the [t]rial [c]ourt
further err in continually denying [Mother’s] request to change
the venue to a more appropriate locale and then claiming that
this particular issue was waived because the [t]rial [c]ourt had
required [Mother] to participate in evaluations and shortlist
hearings in Montgomery County in order to protect her custodial
rights[?] Is it an abuse of discretion to penalize [Mother] for
appearing at scheduled court proceedings when the more
appropriate forum to challenge venue and jurisdiction is in the
this timely-filed appeal, as one of multiple issues?
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V. Did the [t]rial [c]ourt err and commit an abuse of discretion
when the [c]ourt failed to consider and apply the factors for
relocation of a child when the child has primarily lived, by
agreement of the parties, in Lancaster County since August of
2013, and the new Order requires the relocation of the child to
Montgomery County without a proper Notice of Relocation being
filed by [Father] along with his Petition to Modify Custody in
February of 2016[?] Although venue and jurisdiction, also at
issue in this appeal, are related matters, the [t]rial [c]ourt
specifically ignored the existing December 2014 Order in this
case under which the minor child lived approximately 66% of the
time with [Mother] in Lancaster County at the time of [Father’s]
February 2016 Petition to Modify. The child’s primary residence
was therefore Lancaster County and the effect of the Petition to
Modify became a Petition for Relocation of the child’s primary
residence. The [t]rial [c]ourt issued several interim Orders that
affected the percentage of time spent with each parent during
the pendency of the February 2016 Petition to Modify, but the
result of complying with those Orders should not be used as
evidence that the child’s time was equal with each parent at the
time the initial (February 2016) Petition to Modify was filed.
VI. Did the [t]rial [c]ourt err and commit an abuse of discretion
when the [c]ourt disregarded the recommendations of the
[c]ourt-ordered evaluator that [Mother] should retain primary
physical custody of the minor child if the parties could not agree
to move closer to one another in proximity?
VII. Did the [t]rial [c]ourt err and commit an abuse of discretion
in the [c]ourt’s application of the custody factors found at 23
Pa.C.S.A. § 5328 in determining the best interests of the minor
child as the determination was not supported by the evidence
presented?
Mother’s Brief, at 6-7.
We review this appeal according to the following scope and standard of
review:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of
fact, nor must the reviewing court accept a finding that
has no competent evidence to support it. . . . However,
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this broad scope of review does not vest in the reviewing
court the duty or the privilege of making its own
independent determination. . . . Thus, an appellate court
is empowered to determine whether the trial court’s
incontrovertible factual findings support its factual
conclusions, but it may not interfere with those
conclusions unless they are unreasonable in view of the
trial court’s factual findings; and thus, represent a gross
abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
(quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
2001)). Moreover,
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
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.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
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A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,
677 (Pa. Super. 2004)).
The Act provides an enumerated list of factors a trial court must
consider when awarding any form of custody. See 23 Pa.C.S.A. §
5328(a)(1)-(16). Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record in open court or in a written
opinion or order.” 23 Pa.C.S.A. § 5323(d). See also M.J.M. v. M.L.G., 63
A.3d 331, 336 (Pa. Super. 2013) (stating that “there is no required amount
of detail for the trial court’s explanation; all that is required is that the
enumerated factors [of § 5328 (a)] are considered and that the custody
decision is based on those considerations”).
Instantly, the trial court set forth its mandatory assessment of the §
5328(a) best interest factors in a detailed opinion that accompanied the
subject order. See Trial Court Opinion, 2/2/17. The court weighed
subsections (1), (4), (6), (8), and (13) in favor of Father; weighed
subsections (3), (5), (9), (10), (11), (12), and (15) equally between the
parties; weighed subsection (2) in favor of neither party; and found
subsection (14) not relevant in this case. With respect to Section
5328(a)(7), the well-reasoned preference of the child, based on the child’s
maturity and judgment, the court noted that the parties waived the in
camera interview of Child, then just five years old. Upon thorough review of
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the testimonial and documentary evidence, we discern no abuse of
discretion.
In its opinion, the court stated that it “weigh[ed] heavily” subsection
(4), the need for stability and continuity in the child’s education, family life
and community life. Findings of Fact Pursuant to 23 Pa.C.S.A. § 5328,
2/2/17, at 7. The court found that Child “has resided in five . . . different
residences with Mother . . . [, which] is disruptive of [Child’s] stability and
continuity.” Id., at 8. In contrast, the court found that Father “has resided in
the same residence for nearly 4 years and [Child] is clearly completely
enmeshed in his life in Father’s household.” Id., at 9.
With respect to subsection (1), which party is more likely to encourage
and permit frequent and continuing contact between the child and another
party, the court found that, regarding “an overall custody schedule and what
school [Child] will attend[,] has created conflict and an inability for both
parties to leave past incidents and litigation behind as they move forward
with co-parenting [Child].” Id., at 1-2. However, the court found that Father
“has demonstrated a greater flexibility in moving forward and considering
various options to resolve conflict that arises between the parties.” Id., at 2.
Moreover, the court agreed with the assessment of the custody
evaluator, Dr. Rosenstein, as follows, in part.
Mother acts in a “proprietary” manner toward [Child] and views
herself as the “main and most important parent,” while her
perspective is that Father is essentially the secondary parent and
should follow her lead. Mother believes that having primary
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custody entitles her to have more say, even on smaller issues
such as bedtime and diet which can realistically vary from one
household to another.
Id., at 3-4. As such, the court stated that it believes Mother
would greatly benefit from individual therapy. Dr. Rosenstein
stated that Mother can learn to share and this is encouraging.
Addressing some of the issues contained in [this opinion], and
beginning to move forward to recognize the importance of Father
in [Child’s] life, is ultimately in [C]hild’s best interest.
Id., at 5-6 (footnote omitted).
With respect to subsection (8), the attempts of a parent to turn the
child against the other parent, and subsection (13), the level of conflict
between the parties and the willingness and ability of the parties to
cooperate with one another, the court relied upon its analysis of subsection
(1).
Turning to the merits of Mother’s appeal, we have carefully reviewed
the parties’ briefs, the certified record, and the trial court’s opinions filed in
this matter. We conclude that the court carefully and thoroughly considered
the best interests of Child in fashioning its custody award. Competent
evidence supports the court’s decision. We discern no abuse of discretion.
Further, we conclude the well-written Rule 1925(a) opinion comprehensively
expounds on all of Mother’s issues, and we affirm based on that decision.
See Trial Court Opinion, 4/17/17. Likewise, we affirm based on the court’s
findings addressing the § 5328(a) factors. See Findings of Fact Pursuant to
23 Pa.C.S.A. § 5328, 2/2/17.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2017
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