Rzepecki, B. v. Rzepecki, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRADLEY RZEPECKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIE RZEPECKI, NOW, :
HETHERINGTON :
: No. 147 WDA 2022
Appellant :
Appeal from the Order Entered January 3, 2022
In the Court of Common Pleas of Erie County
Civil Division at No. 10228-2015
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY MURRAY, J.: FILED: June 24, 2022
Julie Rzepecki, now, Hetherington (Mother) appeals from the order
granting the request of Bradley Rzepecki (Father), for modification of custody
of the parties’ two children, B.R. (born October 2010) and P.R. (born March
2013) (the Children). After careful consideration, we affirm.
The parties were married in 2009 and divorced in 2015. At the time of
their divorce, the parties agreed to share legal and physical custody of the
Children. See Marital Settlement Agreement, 4/20/15.
Four years later, Mother petitioned to modify custody. Mother alleged
Father “had addiction issues and recently relapsed.” Petition for Modification
of Custody, 4/20/19, at 2. Mother requested the court “grant primary
residential custody of the children to [M]other, with periods of supervised
visitation” with Father. Id. The parties subsequently entered into interim
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consent orders before executing an order which provided, inter alia, that the
Children “reside with [M]other, except that [F]ather shall have visitation”
every other weekend, supervised by Children’s paternal grandparents.1
Order, 8/7/19, at 1.
On March 22, 2021, Father filed a motion to modify the August 7, 2019
order, averring “it is in the best interest of the [C]hildren that the Custody
Order be modified to provide for equal physical custody.” Motion for
Modification of Custody Consent Order, 3/22/21. On April 19, 2021, Mother
filed preliminary objections challenging the court’s jurisdiction.2 Father filed
a response in opposition. The trial court heard argument and thereafter
entered an order finding the court had jurisdiction and denying Mother’s
preliminary objections. Order, 7/6/21. Mother did not appeal.
The case was scheduled for trial in September 2021, but the parties
cancelled after reaching a tentative agreement. They were unable to reach a
final agreement, however, and the case proceeded to trial in December 2021.
The court explained:
[I]t is Father’s position that, although he is to blame for the past
few years’ disruption in his custodial relationship with the children,
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1 By the time Father remarried in July 2020, “the custody supervision
requirements were lifted by mutual agreement.” Trial Court Opinion, 1/3/22,
at 2.
2 In 2017, Father consented to Mother relocating with the Children to Clymer,
New York. Although Mother continued to submit to Pennsylvania’s jurisdiction
through 2019, she claimed New York was the Children’s home state, and
Pennsylvania no longer had “exclusive, continuing jurisdiction[.]” Preliminary
Objections, 4/19/21, at 3.
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he is now rehabilitated and it is in the children’s best interests to
return to a more balanced custody arrangement where both
parents share equal importance in their children’s lives.
Mother is remarried and lives on a farm in Clymer, New
York. She testified that she’s been primarily responsible for
raising the children for most of their lives. Father’s drug and
alcohol problems plagued their marriage and were a primary
cause of its dissolution.
She admitted to unilaterally moving the children to
homeschooling.
Trial Court Opinion, 1/3/22, at 4.
On January 3, 2022, the court issued an order and accompanying
opinion addressing the enumerated custody factors set forth in the Child
Custody Act at 23 Pa.C.S.A. § 5328(a). According to Mother, the court
granted Father “additional time with the [C]hildren and for the [C]hildren to
attend public school instead of homeschooling.” Mother’s Brief at 7. Mother
filed a timely request for reconsideration. The trial court denied the request
and Mother timely appealed. Both Mother and the trial court have complied
with Pennsylvania Rule of Appellate Procedure 1925.3
Mother presents the following issues for review:
I. Whether the Trial Court committed an error of law and/or
abused its discretion in finding [Father’s] testimony was
credible considering the testimony and evidence presented
at Trial?
____________________________________________
3 The trial court “observe[d] that the Concise Statement is not particularly
concise.” Trial Court Opinion, 3/9/22, at 2. The court also stated, “to the
extent [Mother] raises an issue on appeal that is not addressed in this 1925(a)
Opinion, the same should be deemed waived for failure to identify the same
in the Concise Statement.” Id.
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II. Whether the Trial Court committed an error of law and/or
abused its discretion in finding that the best interest of the
[C]hildren would be served by granting [Father] additional
custody time considering the testimony and evidence
presented at trial?
III. Whether the Trial Court committed an error of law and/or
abused its discretion in disregarding the testimony of
[Mother] and [C]hildren’s wishes to remain in home school
and finding it to be in [C]hildren’s best interest to
matriculate in Clymer Public School in the middle of the
school year?
IV. Whether the Trial Court committed an error of law and/or
abused its discretion in disregarding the testimony and
evidence presented at trial and modified the current Order
for the best interest of the [C]hildren by removing the
necessity of [F]ather to engage in random drug and alcohol
testing?
Mother’s Brief at 4-5.
In reviewing Mother’s issues, we recognize
the 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, 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.
Moreover,
on 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.
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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.
The test is whether the evidence of record supports the trial
court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations omitted).
In addition, 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, [giving] due deference to the trial court’s weight
and credibility determinations,’ the trial court erred or abused its
discretion[.]” King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citation
omitted). 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).
In all four issues, Mother argues the trial court erred because its
decisions (finding Father credible, granting Father additional time with
Children, requiring Children to attend public school, and declining to impose
random drug and alcohol testing upon Father), “have not been substantiated
by the evidence and testimony presented at trial.” Mother’s Brief at 11. We
disagree.
When deciding a petition to modify custody, a court must conduct a
thorough analysis of the best interests of the child based on the
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relevant Section 5328(a) factors. See E.D. v. M.P., 33 A.3d 73, 80 (Pa.
Super. 2011). It is well-settled that “the best interest of the child is
paramount.” See B.S.G. v. D.M.C., 255 A.3d 528, 536 (Pa. Super. 2021)
(citation omitted). “The courts of this Commonwealth have consistently held
that the ultimate consideration in custody matters is to determine that which
is in the best interests of the child and that such determinations must be made
on a case-by-case basis.” Myers v. DiDomenico, 657 A.2d 956, 957 (Pa.
Super. 1995).
Instantly, four individuals testified at trial: Mother, Father, and the two
Children. The Children were 11 and 8 years old at the time, and testified “in
chambers with counsel present.” See Trial Court Opinion, 1/3/22, at 2. In
the opinion accompanying its order, the trial court summarized the testimony
of Mother, Father and the Children, concluding that “based on the testimony
and other evidence presented at trial, Father’s Petition will be granted in part.”
Id. at 6. The court summarized the “facts adduced at trial . . . in conjunction
with the relevant custody factors set forth at 23 Pa.C.S.A. § 5328(a), keeping
in mind that the [c]ourt’s paramount concern in child custody cases is the best
interests and safety of the children.” Id. (citation omitted).
In its Rule 1925(a) opinion, the trial court expanded upon the reasoning
set forth in its opinion accompanying the modification order. See Trial Court
Opinion, 3/9/22. The Honorable Joseph M. Walsh, III, sitting as the trial court,
cited the record and statutory custody factors supporting the order. Id. After
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careful consideration, we discern no abuse of discretion. The record supports
President Judge Walsh’s comprehensive best interest analysis pursuant to
Sections 5328 (factors to consider when awarding custody) and 5338
(modification of existing order). As President Judge Walsh has authored a
thorough and well-reasoned opinion addressing Mother’s issues, we
adopt the March 9, 2022 opinion as our own and affirm the custody order on
that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2022
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