L.F. v. B.B. ( 2019 )

J-A02036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
B.B. :
:
Appellant : No. 1195 MDA 2018
Appeal from the Order Entered June 22, 2018
In the Court of Common Pleas of Berks County Civil Division at No(s):
16 16386
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 14, 2019
B.B. (Mother) files this appeal from the order1 awarding her and L.F.
(Father) shared physical and legal custody of their minor daughter, P.F., born
in May 2014 (Child). We affirm.
The trial court summarized the relevant procedural and factual history
as follows:
This case formally began when Father filed a custody complaint
on August 15, 2016. Following proceedings before a custody
master and conference with the [c]ourt, the matter was initially
scheduled for trial on October 4, 2017, then continued to
November 20, 2017. As requested by the [c]ourt, the parties filed
____________________________________________
1 The subject order was dated June 21, 2018. However, the clerk did not
provide notice pursuant to Pa.R.C.P. 236(b) until June 22, 2018. Our appellate
rules designate the date of entry of an order as “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our
Supreme Court has held that “an order is not appealable until it is entered on
the docket with the required notation that appropriate notice has been given.”
Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).
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proposed findings of fact and conclusions of law just before that
trial date. However, the trial was not held in November, with the
parties desiring entry of a temporary custody order, which the
[c]ourt then issued on February 2, 2018. Trial was eventually held
June 19, 2018. [At the custody trial, Mother and Father were
represented by counsel and testified on their own behalf. In
addition, Father presented the testimony of a licensed clinical
social worker, Rana Dimmig, who previously counseled Father and
Mother,2 and his present wife, B.F. Mother presented the
testimony of her mother, the child’s maternal grandmother, P.D.]
* * *
The facts, in brief, are as follows: [Father] and [Mother] are the
parents of [Child]. Father moved to Ohio prior to [C]hild’s birth,
and he resides there now, approximately seven hours by car from
Mother’s apartment in Boyertown. Father works in heating and
air conditioning, owns his home, and is now married and has
another child who is one year old.
Beginning at the end of 2016, the parties operated under a
temporary order that called for them to engage in co-parent
counseling and for Father to travel to Mother’s home for visits with
[C]hild every other weekend, supervised by Mother and often by
her mother (that is, the [C]hild’s maternal grandmother) as well.
In March 2017, a second temporary order allowed Father to take
[C]hild on unsupervised visits away from Mother’s home but
staying in the area. A third temporary order in July 2017 allowed
for overnight visitation.[3]
The parties had several co-parent counseling sessions with Rana
Dimmig, a social worker well known to and respected by the
[c]ourt. Ms. Dimmig testified that the sessions were very
contentious, with Mother yelling at Father as well as at her. Ms.
____________________________________________
2 Dimmig conceded that she had not met Child and had not counseled or
spoken with the parties in a year before the hearing. N.T., 6/19/18, at 20.
3 The temporary custody orders were dated January 27, 2017, and entered
January 31, 2017, and May 5, 2017, and entered May 9, 2017. A third
proposed order was issued July 27, 2017, to which Father filed exceptions on
August 1, 2017.
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Dimmig indicated that Mother had great difficulty letting go of
anger at Father and focusing on the future. . . .
The temporary order entered in February 2018 provided for Father
to have the child with him in Ohio every other weekend,
exchanging custody at the Milesburg exit along I-80, a rough
midpoint of the route between the parties’ homes, at 8:00 p.m.
Friday and then at 6:00 p.m. Sunday.[4] The exchange on Friday
evening never took place on time because the drive was longer
than Mother had expected and she could not leave work early.
There were also numerous issues with communication between
the parties and also with arranging communication between the
child and whichever parent did not have physical custody at a
given time.
Trial Ct. Op., 9/4/18, at 1-3.
On June 22, 2018, the court entered the order awarding the parties
shared legal and physical custody of Child. Specifically, the court ordered that
the parties alternate physical custody every two weeks with an exchange
every other Sunday at 3:00 p.m. at the Rest Area at mile 146 on I-80 in
Centre County, Pennsylvania. The court’s order also provided for a holiday
schedule as well as “unfettered” daily contact with the non-custodial parent
via Skype, ooVoo, or another agreed-upon messaging and video application.
The trial court further analyzed and addressed each statutory custody
factor pursuant to 23 Pa.C.S. § 5328(a) and Child’s best interests as follows:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the children and another party?
This factor clearly favors Father. Father has shown he is more
likely to encourage and permit frequent and continuing contact
between the minor child and Mother. Mother has presented
____________________________________________
4 This order, dated February 2, 2018, and entered February 5, 2018, was
agreed to by the parties. Temporary Custody Order, 2/5/18; see also N.T.,
11/20/17.
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significant barriers to Father in terms of him establishing a
relationship with the child whereas Father always ensures that
the child has contact with Mother while in his care.
(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 children or an abused party and which party can better
provide adequate physical safeguards and supervision of the
children.
This factor favors neither party. There is no abuse between
the parties. Mother claims that Father “verbally abuses” her.
Father denies that. Both parties need to do a better job of
communicating.[5]
(3) The parental duties performed by each party on behalf of the
child.
This factor favors Mother. Mother has performed the majority
of the parental duties thus far in the child’s life. The [c]ourt is
satisfied that Father, given increased visitation with the child,
will meet the child’s needs.
(4) The need for stability and continuity in the child’s education,
family life and community life.
This factor favors Father. Allowing the child to spend two
weeks at a time with each parent will afford her continuity until
such time as this [c]ourt decides where she will primarily reside
when she begins school. Father also presents with a more
stable home life as he is married, he and his wife have a child
together, and Father owns his home.
(5) The availability of extended family.
This factor favors neither party as Father’s family resides in
Ohio whereas Mother’s family resides in Pennsylvania.
(6) The children’s sibling relationships.
This factor favors Father as the child has a sibling living in
Father’s home whereas Mother has no other children.
____________________________________________
5 The trial court did not separately address Section 5328(a)(2.1). However,
there was no evidence presented during the custody hearing that related to
this factor.
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Testimony established the minor’s relationship with her sibling
is going very well.
(7) The well-reasoned preference of the children, based on the
children’s maturity and judgment.
This factor favors neither party as the child is too young and
immature to express any meaningful preference as to where
she wishes to reside and with whom.
(8) The attempts of a parent to turn the children against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the children from harm.
This factor clearly favors Father. Father is more likely and able
to promote a relationship between the child and Mother than
Mother is between the child and Father. The testimony clearly
establishes that Father does not in any way put the child in the
middle whereas Mother has been combative and
confrontational with Father in the child’s presence.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the children adequate
for the children’s emotional needs.
This factor clearly favors Father. Father is better able to
maintain a loving, nurturing, relationship with the minor child
as has been covered above.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
children.
This factor favors Father. Father is more capable of attending
to the daily, physical, emotional, developmental, and
educational needs of the child. The evidence established that
Father is supportive of the child’s relationship with her Mother
and he does not engage in any behavior that would cause the
child distress or anxiety.
(11) The proximity of the residences of the parties.
The parties currently live 7 hours away from one another.
(12) Each party’s availability to care for the children or ability to
make appropriate children-care arrangements.
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This factor is not an issue. Both parties are equally available
to care for the minor child.
(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.
This factor favors Father. The level of conflict between the
parties is high due to Mother’s emotional volatility.
(14) The history of drug or alcohol abuse of a party or member of
a party’s household.
Neither party has a history of drug or alcohol abuse.
(15) The mental and physical condition of a party or member of a
party’s household.
This factor favors Father. There are no concerns with the
mental condition of Father though the [c]ourt has concerns
about Mother’s volatility, particularly in the presence of the
child. The [c]ourt still hopes that co-parent counseling might
help with the level of conflict in this case.
(16) Any other relevant factor.
N/A.
Decision and Order, 6/22/18, at 5-8.
The trial court denied Mother’s oral motion for a stay on June 29, 2018.6
The court subsequently denied Mother’s emergency motion for reconsideration
on July 12, 2018.
On July 17, 2018, Mother timely filed a notice of appeal, along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Thereafter, the trial court issued a responsive opinion.
____________________________________________
6 Judge Timothy J. Rowley presided over this matter. However, the order
denying Mother’s emergency motion for reconsideration was entered by
Senior Judge Scott D. Keller.
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On appeal, Mother raises the following issues:
[1.] Whether the honorable trial court erred when it granted the
parties evenly shared physical custody in a fourteen (14) day
rotating schedule, when father had seen [C]hild less than twenty
(20) times during the four years of [C]hild’s life, and the child had
never been away from mother for more than two (2) nights.
[2.] Whether the honorable trial court erred in its June 2[2], 2018
decision and order when its facts established and factors to
consider when awarding custody did not reflect the testimony and
evidence presented at trial.
[3.] Whether the honorable trial court erred in its decision and
order when it required the parties to perform custody exchanges
at a rest area at mile 146 on I-80 in Centre County.
Mother’s Brief at 4 (full capitalization omitted).
In her first two arguments, Mother asserts that the trial court erred in
establishing an alternative two-week physical custody schedule and in
analyzing factors 1, 4, 9, and 10 of 23 Pa.C.S. § 5328(a). We address
Mother’s arguments in greater detail below.
Our standard of review in custody cases under the Child Custody Act,
23 Pa.C.S. §§ 5321-5340, is as follows:
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.
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C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).
This Court consistently has held:
[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) (citation omitted).
In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section 5323
of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
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(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323(a).
Section 5328(a) sets forth the best interest factors that the trial court
must consider when ordering any form of custody. See E.D. v. M.P., 33 A.3d
73, 79-80 n.2 (Pa. Super. 2011). Specifically, Section 5328(a) of the Act
provides as follows:
§ 5328. Factors to consider when awarding custody
(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)(1) and (2)
(relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf of
the child.
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(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. § 5328(a).
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This Court has stated:
“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). . . . The record must be clear on appeal that the trial
court considered all the factors. Id.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.[] § 5323(d). Additionally,
“[S]ection 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). . . .
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620
Pa. 710], 68 A.3d 909 (2013). A court’s explanation of reasons
for its decision, which adequately addresses the relevant factors,
complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).
Moreover, although the trial court is required to give “weighted
consideration to those factors which affect the safety of the child” pursuant to
23 Pa.C.S. § 5328(a), we have acknowledged that the amount of weight a
court gives any one factor is within the discretion of the trial court. M.J.M.
63 A.3d at 339. Critically, as we stated in M.J.M.,
[i]t is within the trial court’s purview as the finder of fact
to determine which factors are most salient and critical in
each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa. Super. 2010) (“In reviewing a custody order . . . our role does
not include making independent factual determinations. . . . In
addition, with regard to issues of credibility and weight of the
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evidence, we must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand.”).
Id. (emphasis added). Further, while a parent’s role in caring for a child may
be considered in light of the statutory factors, “the primary caretaker doctrine,
insofar as it required positive emphasis on the primary caretaker’s status, is
no longer viable.” Id.In her challenge to the alternating two-week physical custody schedule,
Mother asserts that it was unreasonable to deprive Child of contact with her
for a period of fourteen days. Mother’s Brief at 8-12. In support, Mother
relies on M.J.N. v. J.K., 169 A.3d 108 (Pa. Super. 2017). According to
Mother, in M.J.N., this Court found it unreasonable to deprive a parent, who
previously exercised equally shared physical custody, of contact for periods of
up to ten days. Mother’s Brief at 8-11. Mother states:
In the case at hand, Mother had sole physical custody until Father
filed for custody years after [C]hild was born. [C]hild has never
been away from her Mother for more than a night until Father
started getting some weekends, at which point the child was away
from her [m]other for two (2) consecutive nights at a time on a
few occasions. The Decision and Order deprives [C]hild of seeing
. . . Mother for periods of fourteen (14) days, or seven (7) times
longer than she had ever been away before, and four (4) days
longer than was found to be impermissible in [M.J.N.]
This case should be remanded to the trial court to make an award
of primary physical custody for Mother because like in [M.J.N.]
under the circumstances of this case it is manifestly unreasonable
to abruptly take a four year-old child from the only security and
stable environment she has ever known, and compel her to
suddenly split time with a man who would place his interests over
the trauma [C]hild endures as a result of being ripped away from
her primary care-giver.
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Id. at 11-12 (citations to record omitted).
In response, the trial court emphasized the evidence that Child’s
custodial time with Father “goes well,” even though Child is apart from Mother.
Trial Ct. Op. at 5. The court further reasoned:
Mother cites [M.J.N.] in relation to this assertion, but after
carefully reviewing the opinion, the [c]ourt is unable to identify its
relevance. First, the opinion itself is somewhat confusing, as it
appears to indicate that the parties had been alternating physical
custody every two weeks for more than four years before the
order appealed from, [see M.J.N., 169 A.3d] at 110, but also
indicates the father’s concern that the new court-ordered schedule
would deprive him of in-person contact for stretches of more than
ten days, thus inhibiting his relationship with the child, [see id.]
at 118. Possibly the father had previously been allowed in-person
contact of some sort during the mother’s two-week periods.
Regardless, [M.J.N.] does not involve the issue of a child being
placed with an insufficiently familiar parent, and it does not
include any specific analysis of periods of separation from a party
who had previously been the primary parent. Putting aside the
relevance of [M.J.N.], or the lack thereof, the [c]ourt in this case
ordered the even split and two-week rotation for the many
reasons set forth in its decision. Specifically, Mother’s assignment
of error implies [C]hild would have a difficult time being away from
her and spending longer periods with Father, but the [c]ourt
credited testimony from Father and Father’s wife that suggested
the weekend visits have gone well and the child has become
comfortable spending time with Father.
Trial Ct. Op. at 4-5.
Following our review, we discern no error in the trial court’s analysis of
this issue. In M.J.N., this Court vacated a custody order granting a mother’s
request for modification of a shared custody order and awarding the mother
primary custody. See M.J.N., 169 A.3d at 119. The M.J.N. Court noted that
the modification substantially reduced the father’s custodial time under the
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circumstances of the case. See id. Nevertheless, the M.J.N. Court did not
hold that the reduction of father’s time with the child was unreasonable.
Instead, the Court vacated the custody order because the trial court’s
determinations as to several custody factors were unreasonable in light of the
fact that the mother was held in contempt of prior custody and displayed rude
and combative behavior to the father. See id. at 118. Therefore, we agree
with the trial court that Mother’s reliance on M.J.N. is misplaced.
Additionally, a licensed clinical social worker, Rana Dimmig, testified
about the custody schedule ordered in the instant case. Dimmig, who
conducted co-parent counseling with Mother and Father, testified that less
frequent custodial exchanges would be more desirable in a situation where,
as here, there was conflict between the parents. See N.T., 6/19/18, at 19-
21, 24-25. Specifically, Dimmig noted that her sessions with Mother and
Father were “chaotic.”7 In the following exchange with Father’s counsel,
Dimmig further explained:
[Father’s counsel] So given—your word was “chaotic” in your
sessions.
[Dimmig] Uh-huh.
[Father’s counsel] When you have a young couple like this where
there’s chaos, would it make more sense to have frequent
exchanges of the child or less frequent exchanges?
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7 Dimmig described the “chaos” as a lot of yelling and screaming by Mother
about the past. N.T., 6/19/18, at 10-11, 26. She observed that Mother is
“very focused on issues that occurred prior to [Father] being involved [with
Child].” Id. at 11.
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[Dimmig] Usually less frequent.
Id. at 19. In response to the following inquiry by the trial court, Dimmig
clarified:
THE COURT: So I’m interpreting what you’re saying is that, at a
minimum, anything more than a week on or less than week on,
week off, would be an awful lot of frequent interaction --
[Dimmig]: Correct.
THE COURT: —and contact between the parties and the child,
which you wouldn’t recommend?
[Dimmig]: No.
THE COURT: Okay. So you might even recommend two weeks
on and two weeks off.
[Dimmig]: Something that would minimize any of the interaction
they had.
THE COURT: I just want to make sure. That’s the conclusion I
had. I just want to make sure I heard it right.
[Dimmig]: Uh-huh.
Id. at 21.
Accordingly, there was support for the trial court’s decision to establish
an alternating two-week physical custody schedule based on the relationship
between Mother and Father. Therefore, we discern no abuse of discretion in
the court’s conclusion that such a schedule was in Child’s best interest in light
of the contentious relationship between Mother and Father.
Next, Mother maintains that the facts established and recitation of
factors did not reflect the testimony and evidence presented at trial. Mother’s
Brief at 12-22. Mother states, “[M]any of the court’s conclusions lacked any
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supporting evidence or were in direct conflict with the evidence actually
presented at trial.” Id. at 13. Specifically, Mother claims the trial court erred
in concluding that factors 1, 4, 9, and 10 favored Father, when the evidence
suggested they fell in her favor. Id. at 13-22.
By way of further background to this claim, the trial court explained its
determinations of factors 1, 4, 9, and 10 as follows:
[As to factor 18], the [c]ourt concluded from the evidence at trial
that despite accusations from both sides that the other has, for
instance, interfered with the timing of phone calls, Mother’s
evident antipathy towards Father makes her likely to be more of
a hindrance to communication. Further, while the [c]ourt found
this factor favors Father, it also gave this factor relatively little
weight in light of Ms. Dimmig’s testimony that the phone calls,
despite being such a point of contention, are of relatively little
importance to [C]hild. And beyond the issue of phone calls,
Mother is obviously opposed to increasing Father’s proportion of
physical custody/in-person time with the child, whereas Father is
happy to have [C]hild as much as he can but does not begrudge
Mother having equal time.
[As to factor 4,9 w]hile the [c]ourt found that overall this factor
favors Father, it explicitly stated (as was also made clear on the
record at trial) that continuity in education is an issue for the
future, and in fact one that will almost certainly upend the entire
arrangement laid out in the current custody order. [C]hild in the
case Mother cites was already enrolled in a particular school
district and on an individualized plan for autism, which was a
major consideration in both the trial and appellate courts’
conclusions that the stability factor favored the parent with whom
[C]hild was already living. Here, [C]hild is not yet in formal
____________________________________________
8See 23 Pa.C.S. § 5328(a)(1) (“Which party is more likely to encourage and
permit frequent and continuing contact between the child and another party”).
9See 23 Pa.C.S. § 5328(a)(4) (“The need for stability and continuity in the
child’s education, family life and community life.”).
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schooling other than daycare/preschool and, frankly, is of an age
at which her interaction with the community is relatively limited.
Both households are relatively stable, and there is extended family
in both locations, but Father does own his home and have a wife
and another child. The [c]ourt concluded that two-week intervals
would provide sufficient continuity at this point in [C]hild’s life
and, in fact, such intervals probably provide greater stability than
the intense, short-turnaround exchanges that had been occurring
prior to trial, during which [C]hild spent a day and a half with
[Father] every other weekend, and fourteen hours in the car over
the course of two days each time as well.
[As to factor 9,10 t]his point again turns at least in part on Mother’s
focus on the past, as she laments Father’s extremely limited
relationship with [C]hild and the fact that it “has just begun years
into [C]hild’s life.” To the extent that the past is indeed relevant,
Father did testify that he made efforts to become more involved
earlier, and of course it was Father that ultimately filed this
custody suit when those efforts were rebuffed. The [c]ourt is very
concerned, as Ms. Dimmig testified, that in order to most
effectively and consistently support [C]hild’s emotional needs,
Mother must work through her negativity and anger related to
Father and their past. The [c]ourt has no doubt that both parents
love the child, and certainly Mother has had the most thorough
relationship with her so far. The [c]ourt concluded, however, that
Father presents a more straightforward and loving approach to
moving forward, focused on [C]hild without resentment.
[As to factor 10,11 t]here is no question that Mother has been the
primary parent doing this work before now. But the [c]ourt has
no real concern about either parent’s ability to handle the basics,
and other than some allergies that do not seem to be creating any
major problems, [C]hild really appears to be doing well and has
no issues with which either parent would have trouble. Given that,
the [c]ourt’s main concern for [C]hild’s emotional development at
____________________________________________
10 See 23 Pa.C.S. § 5328(a)(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.”).
11See 23 Pa.C.S. § 5328(a)(10) (“Which party is more likely to attend to the
daily physical, emotional, developmental, educational and special needs of the
child.”).
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this time is the custody issue itself: [C]hild would be well served
by developing more of a relationship with both parents, and as the
[c]ourt has repeatedly explained, Father is more supportive of
that endeavor.
Trial Ct. Op. at 6-10.
With regard to factor 1, Mother contends that she reached out to Father
and his family after Child’s birth. Id. at 14. Further, Mother maintains that
she has allowed and assisted with phone contact, but Father has refused to
allow Mother phone contact before Child goes to sleep. Id. 14-15. Likewise,
Mother indicates that she has reached out to Father on several occasions when
he went a length of time without visitation and/or contact with Child. Id. at
15. Mother suggests, “[t]he testimony and evidence presented at trial
demonstrates that Mother has been more likely to permit and encourage
frequent and continuing communication between the child and another party,
and that she will continue to do so. This factor should favor Mother.” Id. at
15-16.
As to factor 4, Mother contends that she provides stability and
continuity, particularly since Child has always resided with her. Mother’s Brief
at 16-17. Mother argues:
In the instant case, the [c]ourt’s evaluation of this factor does not
afford appropriate weight to the evidence presented at trial. The
evidence presented shows that Mother has always provided a
stable environment for the child, and no evidence or allegations
were presented to suggest that the child’s life has not been stable
with Mother. All of the child’s friends reside in Berks County, as
well as her doctors, specialists, and dentists. The child has
attended the YMCA since she was five months old, beginning with
day care and evolving into pre-school. On the other hand, Father
was absent for the first three years of the child’s life.
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The [c]ourt’s evaluation of this factor seems to rely on Father
being married, having a child with his wife, and owning his own
home. However, that reliance belays [sic] the fact that Father has
moved multiple times without informing Mother where he was
moving to, and Mother has not moved since the child was born.
Moreover, had Mother not raised the child by herself for the first
3 years of the child’s life, she too could likely have had the
opportunity to become remarried, have another child, and
purchase a home.
These facts demonstrate that Mother has been better able to
provide for stability and continuity in the child’s education, family
life, and community life, and will continue to be better in the
future. This factor should heavily weigh in Mother’s favor.
Id. at 17-18 (citations to record and appendix omitted).
As to factor 9, Mother argues, the trial court’s conclusion
contradicts all evidence that was presented. Mother has been the
sole caregiver to [C]hild for the vast majority of [C]hild’s life.
Father has seen [C]hild less than twenty (20) times throughout
[C]hild’s four years of life. Mother testified extensively and
knowledgably about [C]hild’s doctor, dentist, and specialists. The
testimony reflected that Mother prioritizes [C]hild, cooks for her,
cleans for her, takes her to the park and library, takes her on
vacations, reads with her, and consistently spends quality time
with her. There was no testimony whatsoever to suggest that
Mother’s relationship with [C]hild was anything but loving, stable,
consistent and nurturing. Indeed, the [trial] court explicitly states
in summation, “[t]here’s no question Mother [loves the child].[”]
On the flip side, the testimony presented showed that Father
wanted to abort [C]hild, waited years to become involved even
after Mother reached out to him numerous times asking him to
become involved, has never taken [C]hild to the doctor, specialist
or dentist, and consistently misses visits with [C]hild.
* * *
Because the evidence presented shows that Mother has been able
to maintain a loving, stable, consistent, and nurturing relationship
with the children [sic] adequate for the children’s [sic] emotional
needs and there is no evidence suggesting that she will not be
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able to maintain that relationship in the future, this factor should
favor Mother.
Id. at 18-20 (citations to record omitted)).
Finally, with regard to factor 10, Mother maintains that she can best
provide for Child’s daily physical, emotional, developmental, and educational
needs. Id. at 21-22. Mother submits:
The [c]ourt’s evaluation of this factor is in error. The testimony
reflects that Mother has been doing an exceptional job of
attending to the daily, physical, emotional, developmental, and
educational needs of [C]hild. Mother has sought and attained
employment allowing her to spend time with [C]hild and ensure
she is available to attend to [C]hild’s needs. Mother has fed and
clothed [C]hild her entire life. Mother has established a strong
bond with [C]hild and testified that she can communicate
effectively with [C]hild. Mother testified that she has enrolled the
child in pre-school and that she regularly reads with the child and
engages in other educational activity. Mother has been solely
responsible for taking care of all of [C]hild’s healthcare and
medical needs.
In contrast, there is little evidence to suggest that Father can care
for [C]hild’s daily, physical, emotional, developmental, and
educational needs. Father has just recently become involved in
[C]hild’s life and has missed a substantial amount of visitation to
which he was entitled, none of which was Mother’s fault according
to Father’s testimony. Father has not agreed to [C]hild receiving
any type of therapy to deal with his introduction into her life.
Father has denied that [C]hild suffers from medically documented
allergies. Father seeks to take [C]hild out of her current preschool
showing an absolute disregard for [C]hild’s educational needs.
Accordingly, this factor should weigh heavily in favor of Mother.
Id. (citations to record omitted).
At their core, Mother’s arguments as to factor 1, 4, 9, and 10 dispute
the trial court’s findings of fact and determinations regarding credibility and
weight of the evidence. In essence, Mother asks this Court to re-find facts,
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re-weigh evidence, or re-assess credibility in a light most favorable to her
evidence. This we cannot do. Under our standard of review, the trial court’s
findings of fact and determinations regarding credibility and weight of the
evidence are not disturbed absent an abuse of discretion. See C.R.F., 45
A.3d at 443; see also E.R., 129 A.3d at 527. As we stated in King v. King,
889 A.2d 630, 632 (Pa. Super. 2005), “It is not this Court’s function to
determine whether the trial court reached the ‘right’ decision; rather, we must
consider whether, ‘based on the evidence presented, given [sic] due deference
to the trial court’s weight and credibility determinations,’ the trial court erred
or abused its discretion. . . .” Id. (quoting Hanson v. Hanson, 878 A.2d
127, 129 (Pa. Super. 2005)).
Having reviewed the trial court’s order and opinion, Mother’s arguments,
and the record, we conclude that the trial court’s findings regarding the
custody factors set forth in Section 5328(a) are supported by competent
evidence. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527.
Moreover, we discern no error of law in the trial court’s legal determinations.
Accordingly, Mother’s arguments as to factors 1, 4, 9, and 10 warrant no relief.
Lastly, Mother contends that it was unreasonable to make her drive
more than half of the distance for custodial exchanges. Mother’s Brief at 23-
24. She further indicates that the location selected was improper because it
required the parties to drive an additional twelve miles. Id. at 23-24.
Specifically, Mother asserts:
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In requiring the parties to meet for custody exchanges in a
location closer to Father, that requires either party to drive an
additional 12 miles just to turnaround after having conferenced
with the parties to determine an appropriate location to meet, it
appears that the court arbitrarily chose this location, or in the
alternative, considered that Father had done the majority of the
driving since abandoning [C]hild and decided that now it was
Mother’s turn to do more of the driving. The [c]ourt’s decision
cannot be sustained on either of these grounds, and this court
should accordingly remand this case to the trial court to enter an
order wherein Mother is not required to drive more than Father.
Id. at 24.
As an initial matter, we note that as set forth in her Pa.R.A.P. 1925(b)
statement, Mother challenged the selected custodial exchange location based
on safety considerations and the fact that Father moved to Ohio prior to Child’s
birth and was uninvolved in Child’s life. Specifically, Mother stated:
3. The [trial court] erred in its Decision and Order when it required
the parties to perform custody exchanges at the Rest Area at Mile
146 on I-80 in Centre County Pennsylvania, when the [trial] court
had a conference with the parties regarding a meeting location
whereby it was decided that Exit 158 on 1-80 in Milesburg was the
appropriate meeting location, because the Rest Area at Mile 146
on I-80 did not incorporate any of the safety features that the
court had already deemed appropriate; and the Rest Area at Mile
146 on 1-80 was the midway point between Father’s old address
. . . and Mother’s residence, rather than Father’s current address
....
4. The [trial court] erred when it required Mother to drive more
than three and a half (3.5) hours each way for custody exchanges
when Father had moved from Pennsylvania to Ohio when Mother
was eight (8) months pregnant, and only became involved in
[C]hild’s life two and a half (2.5) years later.
See Mother’s Concise Statement of Errors Complained of on Appeal, 7/17/18,
at ¶¶ 3, 4.
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On appeal, however, Mother has abandoned the safety issue raised in
her Pa.R.A.P. 1925(b) statement. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.
Super. 2011) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”); Mother’s
Brief at 23-24. Instead, Mother’s argument in her brief focuses on the
additional distance needed to travel to the transfer point. As such, the issue
raised by Mother in her brief could be deemed waived.12 See Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a
failure to preserve issues by raising them in both the Rule 1925(b) statement
and the statement of questions involved portion of the brief on appeal results
in a waiver of those issues).
In any event, the trial court discussed its selection of the exchange
location and addressed Mother’s argument as follows:
These points demonstrate Mother’s continued focus on fairness to
her and on Father’s past conduct rather than on the practical
realities of [C]hild’s interests in the present [case]. Frankly, a
shift of twelve miles along the interstate is a de minimis issue, and
the [c]ourt simply exercised its discretion in choosing a fair
midpoint given that both parties are inevitably going to have a
long drive.
Trial Ct. Op. at 6.
____________________________________________
12 In any event, our review reveals no abuse of discretion in the trial court’s
selection of a transfer point that required Mother to travel an additional twelve
miles.
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Instantly, at the hearing, Mother objected to any exchange point that
required her to travel, see N.T., 6/19/18, at 161, or insisted that an exchange
take place at a police station, see also N.T., 11/20/17, at 7. In her
emergency motion for reconsideration, Mother similarly challenged the
location as being closer to Father and his new address. Mot. for Reconsider.,
6/29/18, at 5-6. Mother, in her brief, continues to assert that the additional
traveling distance on her was unfair or arbitrary. However, Mother has failed
to identify any basis to conclude that the twelve-mile shift in the exchange
location constituted an abuse of discretion. Therefore, we have no basis to
disturb the trial court’s determination of the location for custody exchanges.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/14/2019
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