L.I.B. v. J.I.B. ( 2020 )

J-A26044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.I.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.I.B. :
:
Appellant : No. 887 WDA 2019
Appeal from the Order Entered May 17, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD-17-4053-005
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 14, 2020
J.I.B. (“Father”) appeals from the custody order entered on May 17,
2019, which denied his petition to modify the existing custody order that was
incorporated into Section 4 of the Marriage Settlement Agreement (“MSA”),
dated February 15, 2017, between him and his former wife, L.I.B. (“Mother”),
the mother of the parties’ three children, J.B. (a female born in June 2008)1;
B.B. (a male born in November 2010)2; and L.B. (a female born in January
2016) (collectively, “Children”). The trial court’s May 17, 2019 order also
directed that the MSA would continue to govern legal and physical custody
between the parties and denied Father’s request to relocate the Children from
____________________________________________
1 N.T., 10/10/18, at 40.
2 N.T., 10/10/18, at 21.
J-A26044-19
Pittsburgh, Pennsylvania, where they currently reside with Mother, to Ballwin,
Missouri, where Father is serving in the United States Marine Corps.3, 4 We
affirm.
The trial court set forth the factual background and procedural history
of this appeal as follows:
Father . . . and [M]other . . . are the parents of three minor
children, [ten]-year-old [J.B.], [eight]-year-old [B.B.], and
[three]-year-old [L.B.].
The parties married [in November 2007], separated [in June
2016], and were divorced [in February 2017].
***
The parties’ divorce papers, filed in St. Louis County,
Missouri, incorporated [an MSA] and [a] parenting plan in which
the parties agreed that [M]other would relocate with the three
children to Pittsburgh, [Pennsylvania], where they have now
resided, in a four-bedroom house in the West End, with [M]aternal
[G]randmother [G.M.], and her husband, [S.M.]
Father is a staff sergeant in the [United States] Marine
Corps. He has served at duty locations in a number of states. He
married [M.M.B. (“Step-Mother” or “Step Mom”)] in the summer
of 2018. She is employed as an escrow manager for a title
company.
In February [2019], [F]ather and [Step-Mother] moved to
Ballwin, Missouri, where [F]ather has a special duty assignment
as a canvassing recruiter. Father and [S]tep-[M]other live in a
four-bedroom house.
____________________________________________
3 N.T., 5/16/19, at 23-24.
4The trial court assumed jurisdiction over the case by order dated April 27,
2018. See Trial Court Order, 5/17/19, at 1.
-2-
J-A26044-19
Prior to the move[,] [F]ather and [S]tep-[M]other resided
near New Orleans, in Mandeville, Louisiana, for 18 months.
On May 10, 2018, [M]other filed a petition to modify the
2017 Missouri custody order. Father filed a cross-petition for
primary physical custody on May 24, 2018.
At a judicial conciliation on August 27, 2018[,] the [trial
court] set a December [2018] trial date, and it was agreed that
the two older children would appear on October 10, 2018 for in
camera interviews, to be recorded for use at trial. Those
interviews are hereby incorporated into the trial record.
At the pre-trial conference on December 23, 2018[,
M]other’s counsel announced that [M]other was withdrawing her
complaint for modification.
In consultation with counsel[,] the [trial court] ordered
[F]ather to file a notice of proposed relocation that would be
considered for trial with his cross petition for primary custody. . .
.
The case went to trial on [F]ather’s modification and
relocation claims, starting [on] May 16, 2019. Father was
represented by counsel[; M]other represent[ed] herself.
The parties themselves were the only witnesses at trial.
However, as agreed upon, the in camera interviews of the
[C]hildren were carried forward to this record.
N.T., 5/17/19, at 63-65.5
After the close of the testimony at the hearing on May 17, 2019, the
trial court dictated its findings, conclusions, and order into the record. The
trial court stated its findings as to the statutory best interest factors pursuant
to 23 Pa.C.S. § 5328(a), as follows.
____________________________________________
5 At the hearing on October 10, 2018, the trial court interviewed B.B. and J.B.,
in open court, with Father’s counsel present.
-3-
J-A26044-19
We begin with the custody factors. [Factor] 1, which party
is more likely to encourage and permit frequent and continuing
contact between the [C]hildren and the other party.
This factor promotes the best interest of the [C]hildren by
measuring each parent’s good faith effort to nurture and support
the other parent’s participation in the child’s life.
The [trial court] finds that the pattern in this case is that
each party accuses the other of interfering with regular, even
court-ordered phone or video contact with the non-custodial
parent, and the [trial court] finds that each party assumes the
worst of each other.
This was demonstrated in the courtroom this morning[,]
when [F]ather testified he assumed [M]other would not
accommodate his request to see the [C]hildren during his present
visit to Pittsburgh for the custody trial.
That’s a tragedy, that he would be in Pittsburgh and not see
the [C]hildren.
He made the same assumption, he testified, when he was
here for the pre-trial.
Father has not once in more than [two] years sought to
exercise the additional custody to which he is entitled during any
month in which he does not otherwise have custody. That’s in the
marriage settlement agreement custody order.
He testified that he’s aware that the [C]hildren have asked
him to come to Pittsburgh for such visits, but no time in [two]
years has his schedule allowed him to exercise that right, which
he is granted in the controlling custody order.
The breakdown in communications between these parties is
based in large part on [F]ather’s distrust and presumption about
how [M]other would respond to his requests.
In my interview with [J.B.,] she reported that she talks to
[F]ather at least three times a week and that she actually enjoys
the calls. The child told the [trial court] she is not always available
-4-
J-A26044-19
when [F]ather calls. She’s a [ten]-year-old and she may be busy
playing.
Father testified that when the [C]hildren are in his
custody[,] he asks them if they want to speak with their [M]other.
That doesn’t seem the best route to ensure that [M]other gets
phone calls while the kids are in [F]ather’s custody.
Mother testified that [F]ather was inflexible at the
Generations conciliation last summer when [M]other requested to
modify the summer schedule for the [C]hildren to have some time
with maternal great[-]grandparents, who visited from South
Africa.
Distrust and resentment carries on from the parties’
marriage and separation several years back. Unfortunately, the
parties have not spared the [C]hildren from exposure to this
distrust and resentment.
Factor 2, 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.
It is undisputed that the Marines sent [F]ather to anger
management classes, and that a military protective order was
issued restraining [F]ather from contact with [M]other for some
months after an altercation at the marital residence on December
17, 2014.
And [M]other testified that there was an earlier military
restraining order entered against [F]ather when they resided in
North Carolina in 2012 or 2013.
Regarding the 2014 order, [M]other and [F]ather disagreed
about what started the argument; either [M]other spending $200
at Target, or [M]other finding lipstick and cigarettes in [F]ather’s
truck.
Mother testified that [F]ather beat her, punched her, pushed
her down the stairs and choked her against a door, threw her cell
phone. . . . [M]other hit [F]ather on the head with a candle stick.
She admitted to that, leaving a gash in the back of his head and
prompting an investigation of [M]other by the military.
-5-
J-A26044-19
Mother testified that[,] during the melee[,] [F]ather locked
[J.B. and B.B.] in a bedroom. Mother summoned her sister to the
house. Mother testified [F]ather[,] at the top of steps[,] got a
handgun from the bedroom, cocked it and pointed it at the women
at the bottom of the steps, telling them to get out.
Mother called [F]ather’s command duty phone. The police
arrived. Father spent the night in the St. Louis County jail.
Father[,] in his testimony[,] denied pointing the gun at the
women or cocking it. He said he merely touched the firearm,
which he said was on a TV stand in the bedroom.
Father said he was taken to jail after he failed to comply
with orders from police officers to lower his voice. Father says he
could not control his hostility.
Mother . . . testified that she found the gun the next day
hidden behind a couch in the bedroom and turned it over to
authorities.
In the spring of the next year, 2015, the protective order
was terminated at the request of [M]other, which is stated in
exhibit B. It says that the termination was so that the parties
could finalize a divorce and fulfill custody arrangements for the
[C]hildren.
However, the divorce did not proceed at that time. Rather,
[L.B.] was conceived just a few weeks after the restraining order
was lifted.
Mother and [F]ather did not finally separate until the
summer of 2016, over a year later, and about a year and a half
after the December 2014 incident.
Mother testified that [F]ather never laid hands on her again
after this incident, but that mental abuse continued. She testified
to two prior instances where she alleges that [F]ather pushed her
or threw her against objects. She said that one of these instances
in early 2014 was witnessed by [J.B. and B.B.].
Father denies the earlier incidents of abuse.
-6-
J-A26044-19
However, [M]other’s testimony was undisputed that
[F]ather told her at the time of separation that she had 30 days
to get out of the house with the kids or the utilities would be cut
off, an ultimatum that [M]other relayed to [F]ather’s commanding
officer.
Asked if he made this remark[,] [F]ather answered twice[,
“I do not recall.”]
[Factor] 3, the parental duties performed by each party on
behalf of the child.
Mother has been the school-year parent since the parties’
custody agreement was reached in early 2017 and the [C]hildren
moved to Pittsburgh with her.
Father finds fault with [M]other’s performance of the duties
associated with being the primary school-year parent. He testified
credibly to problems with the [C]hildren’s diet, their unmonitored
[Internet] usage, [and] their school attendance.
The evidence is that [M]other, even with the help of
maternal grandparents, especially at first, upon her arrival in
Pittsburgh, failed to perform satisfactorily in all of these areas on
occasion.
The [trial court] finds that there is evidence that [M]other
has improved in all of these areas in the more recent months that
she’s lived in Pittsburgh with the [C]hildren.
Father gives – in his laying blame on [M]other, gives no
apparent consideration to the events that sent [M]other to
Pittsburgh a little over [two] years ago, the undisputed evidence
that [F]ather told her to get out with the [C]hildren, and that[,] in
the marital settlement agreement[,] he consented to her moving
to Pittsburgh with the [C]hildren.
Father, married since last summer to [S]tep-[M]other,
testified that he can do better than [M]other has done during her
initial years in Pittsburgh. He cites that he has a flexible schedule
in his current job. That he has hours of 9:00 to 5:00, that there’s
minimal travel, and nothing that would take him outside the U.S.,
and nothing that would generally keep him away overnight, and
-7-
J-A26044-19
that [S]tep-[M]other has a flexible schedule as well and would be
able to perform parental duties as well.
Factor 4, the need for stability and continuity in the child’s
education, family life, and community life.
Given the nature of [F]ather’s military service[,] it is
possible that [F]ather may be transferred to a new duty station at
the conclusion of his [three]-year contract. The Marines could also
elect to transfer him sooner than [three] years, despite the
contract.
The kids have an established pattern, friends, neighbors,
school, a support network in Pittsburgh.
[B.B.] is in second grade and has already been to three
schools. [J.B.] is in fifth grade and has already been to four
schools. Both have been in Westwood Elementary for the past
[two] years, [B.B.] is excelling academically, if one can say that
for a second grader.
[J.B.] had a socially tough year due to bullying, and her
grades suffered. However, the [trial court] was favorably
impressed with the school administration’s handling of the bullying
report once it was brought to their attention in a letter from
[M]aternal [G]randmother at the beginning of December 2018.
Attendance has been an issue in the initial years after the
[C]hildren arrived in Pittsburgh, and even before, while they were
living in the south. But records produced today by [M]other
suggest that[,] during the present academic year[,] both [B.B.]
and [J.B.] have acceptable, if not better than acceptable,
attendance.
Factor 5, the availability of extended family in Pittsburgh.
Mother and the [C]hildren reside with [M]aternal
[G]randmother and her husband, [S.M.].
Mother’s sister is also in Pittsburgh and helps with the kids.
Mother’s sister is very close to [M]other, and has lived in many
places where [M]other has also lived.
They offer support to [M]other and to the [C]hildren.
-8-
J-A26044-19
Father has little contact with his side of the family, but
considerable and very favorable contact with [S]tep-[M]other’s
parents and her siblings.
Factor 6, the child’s sibling relationships.
The [trial court] met with the two older children and finds
that they have a loving bond and are protective of their baby
sister, [L.B.]. There is no request or suggestion that the three
children should be separated in this custody resolution.
Factor 7, the well-reasoned preference of the child based on
the child’s maturity and judgment.
The child’s preference, though not controlling, is a factor to
be considered as long as it’s based on good reasons, with more
weight given to the preference of a child as that child grows older.
[The trial court’s] August 27, 2018 order, which scheduled
the [C]hildren’s in camera interviews, stated in paragraph 2 –
quote – Parties are cautioned against discussing custody matters
with the [C]hildren or coaching the [C]hildren regarding the
meeting with the judge.
However, at the interview on October 10, 2018, [J.B.] told
me that [M]other told her to tell the judge about the time her
step-mother took her phone from her.
[J.B.] also told the [court] that [M]other told her to tell the
judge that what [J.B.] tells the [trial court] could determine
whether they live with mom or live with dad.
[J.B.] said she and her mom talked about the interview as
recently as the day before [the trial court] met with . . . the
[C]hildren.
The [trial court] views everything the [C]hildren told [the
court] with high skepticism and is concerned by the evidence that
[M]other groomed the [C]hildren to perform on cue at the [in
camera] interview.
[J.B.] said she talked with [M]other – quote – a lot – close
quote – about that time that [F]ather pulled a gun on [M]other
-9-
J-A26044-19
and [M]other’s sister. [J.B.] said – quote – I think mom told me
to tell the judge about that, but I can’t really remember.
[J.B.] said Mother told [her] to tell [the trial court] about all
the bad things that happened in the past.
[J.B.] reported to the [trial court] that both she and [B.B.]
have – quote – panic attacks – close quote.
[B.B.] testified that [S]tep-[M]other – so we’re turning to
[B.B.]. He testified that [S]tep-[M]other tells us that [M]other is
lazy, and that dad went to jail.
[B.B.] said that [M]other told him to tell the judge that
[S]tep-[M]other is mean.
The [C]hildren, being children, however, did deviate from
the script at points. Elsewhere in the interview they told [the trial
judge] that they had fun with [F]ather in the summer, that they
go to the pool, [and] that there’s lots of playtime, which is very
fun.
[J.B.] said summertime with [F]ather would be even more
fun if [M]other were there.
...
Overall the [trial court] gives little weight to much of what
the [C]hildren told [it] in light of the evidence that [M]other
coached them.
Factor 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.
The [trial court] makes a finding that domestic violence has
occurred in the past in this case and that it does not believe that
safety measures are necessary at the present time, because there
is not a continuing risk under current custody arrangements.
For a child to feel equally loved, understood and cared for
in the custody of both parents[,] it is essential that the parents[,]
in good faith[,] exchange important information about the child.
- 10 -
J-A26044-19
The failure of a parent to guarantee that the other parent knows
what is going on in a child’s life causes that child to draw closer to
the parent who knows about the issue, while that child may shut
down and draw away from the parent who is in the dark.
Mother testified that she assumed that the school informed
[F]ather of the bullying that [J.B.] endured at Westwood
Elementary starting in early November of last year. This bullying
was egregious and caused such upset with the child that that
assumption on [M]other’s part is totally unwarranted.
The bullying started with another student pulling [J.B.’s]
hair on the playground, for which the other child got lunch
detention. Mother was called about the incident, but [M]other
failed to ensure that [F]ather was informed.
By early December, [J.B.] had received five noxious notes
from the bully telling [ten]-year-old [J.B.] to kill herself.
Mother and the parents of the bully met with the Westwood
principal, Nina Sacco, on December 6, 2018. Again, [M]other
didn’t reach out to [F]ather to alert him to this.
Father spent Thanksgiving with [J.B.] and remained in the
dark.
The meeting on December 6th was occasioned by a
December 5, 2018 note from [M]aternal [G]randmother, [G.M.],
to the fifth grade teacher saying that [J.B.] had a panic or anxiety
attack as a result of bullying.
After the December 6th meeting[,] the bully was suspended
and moved to the other fifth grade homeroom and assigned to
alternate recess.
No one shared this information with [F]ather, who spent
four days at Thanksgiving vacation in Ronks, [Pennsylvania], at
the Boxcar Hotel with the kids and with [S]tep-[M]om.
Again[,] he saw them at Christmas for a number of days and
didn’t have this information about what [J.B.] was enduring.
- 11 -
J-A26044-19
Father testified that [J.B.’s] behavior during these visits
concerned him, and he thought it might be related to her starting
menstruation.
Finally, on January 1, 2019, the last day of [F]ather’s
Christmas holiday, [J.B.] told him about the hair pulling. She did
not tell him the rest of the story about the note.
During the same period[, J.B.] was experiencing urinary
accidents and saw a doctor on December 11th with her
grandmother. The doctor notes – quote – ongoing family
stressors, and added that someone, either [J.B.] or [Maternal
Grandmother], told the doctor that [J.B.] reported feeling stressed
during the Thanksgiving visit with [F]ather.
There’s no indication the doctor was told about the bullying.
But just a week earlier[, Maternal Grandmother] told the school
that the bullying was the cause of [J.B.’s] panic and anxiety
attack.
The failure of [M]other to ensure that [F]ather was up to
date on [J.B.’s] struggles could drive a wedge between [F]ather
and [J.B.], casting [F]ather as a less significant parent, rather
than as a co-equal parent who can fully comfort and protect her
when [s]he is in need.
The [trial court] notes that [F]ather’s ability to protect her,
to protect, [J.B.] is colored by [J.B.’s] – by the evidence that [J.B.]
witnessed domestic abuse earlier in her life, notably when locked
in a bedroom in December of 2014, and earlier than that.
The [trial court] is mindful of this history of domestic
violence between [F]ather and [M]other and the existence – and
the evidence that [J.B. and B.B.] witnessed abuse.
Over the [four] years since that December 2014 altercation
involving a gun[,] it remains on [J.B.’s] mind, in part[,] because
[M]other apparently brings the topic up.
The [C]hildren are in therapy and should be addressing this
history in that context.
Mother should also be addressing her experience of
domestic abuse in counselling as well.
- 12 -
J-A26044-19
Conversely, the [trial court] finds no significant evidence
that [F]ather sought to turn the [C]hildren against [M]other.
Factor 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.
The [trial court] finds that both parents have a loving and
stable commitment to the [C]hildren and that [M]other has been
the primary parent and that [F]ather has successfully navigated
his periods of partial custody.
The [trial court] repeats its concern that [F]ather has not
sought to exercise additional custody afforded him under the 2017
custody order, and that that raises concerns about his efforts to
maintain a consistent and nurturing relationship with the
[C]hildren, who, according to the record, have asked him to . . .
please come visit [them].
Factor 10, which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
Father alleges that [M]other failed to seek and follow
through with necessary treatment for the dental health of [L.B.]
in a timely fashion and failed to communicate with him on the
subject. Father maintains that he sought to have [L.B.’s] dental
treatment completed sooner in order to alleviate the child’s pain,
but [M]other refused to consent.
This issue was the subject of a motion presented to [the trial
court] in July of [2018], and[,] on second consideration[, the trial
court] would not change its decision to deny the motion, this after
again reviewing the exhibits, and even more exhibits than [the
trial court] saw last summer.
And at that time[, the trial court] gave credence to
[M]other’s attorney. Mother was represented by counsel then,
who submitted a letter in the motion that the matter was not an
emergency and [Mother] will not consent to the extraction. The
child is scheduled to see the dentist when she returns to
Pittsburgh. The dentist will determine if an extraction is
necessary.
- 13 -
J-A26044-19
This procedure was scheduled, and postponed. The child
moved from one state to the next. The [trial court] found credible
[M]other’s testimony that she . . . had a date for the procedure to
be performed just two days after [F]ather’s custody was to
commence, yet [F]ather refused to delay the start of his custody
for the procedure to take place; rather, taking the suffering child
out of state, away from the dentist who had been treating her and
delaying the procedure to August, and ultimately September.
The communications on Our Family Wizard are elaborate.
[The trial court] reviewed all of them in connection with this.
There’s a 34-page chain of 95 messages. Some of them are
repeats, regarding – the [C]hildren’s dental health.
The [trial court] does not underestimate the complexity of
guaranteeing that any medical service that the parties agree on
will be covered by [F]ather’s insurance, but the [trial court] finds
that [F]ather’s tone in his communications does not assist in
resolving the disputes. Rather, he is uncivil, imperious and[,] at
times insulting, not furthering the best interest of the child in his
communications.
Father’s tone is also bordering on controlling, causing [the
trial court] to have concerns that the dynamics of domestic abuse
continue to undermine effective communication between the
parties.
For instance, [F]ather writes to [M]other, [“]Any fit parent
will follow the proper protocol, and I will continue to tell you how
disrespectful and unwilling you are as a parent. Can you read?
What don’t you understand?[”]
. . . [T]he record shows [F]ather to be highly resourceful,
tech savvy, and capable of keeping up to date on medical and
educational developments in the [C]hildren’s life. His focus on
requiring that [M]other independently provide him with this
information is counter-productive and not always in the best
interest of the [C]hildren, given the history of the parties.
The [trial court] in no way treats lightly [F]ather’s complaint
that [M]other has not kept him apprised of medical and legal
custody issues, particularly his allegations that she has failed to
- 14 -
J-A26044-19
ensure that his consent was not consistently obtained — to ensure
that his consent was obtained for all medical procedures.
This battle of wills and the inability of the parties to agree
on important matters, like the date for little [L.B.’s] surgery, the
location of it, and who would provide it, bordered on and may have
crossed the line, where shared legal custody should be terminated
in favor of sole legal custody.
And[, the trial court makes] that finding as a warning to
both parties that communication has to improve.
The [trial court] notes that [M]other was able to answer
affirmatively today that she has complied with Dr. Courtney
Uselton’s recommendation that [L.B.] receive regular check-ups,
I believe every 90 days, and that those are occurring.
Mother needs to know that she’s going to remain under a
microscope to ensure that these issues are addressed, [and] that
the [C]hildren’s dental and health issues are receiving proper
treatment.
Factor 11, the proximity of the residence of the parties.
When the parties live a great distance from each other,
shared custody is obviously impossible.
At present[, F]ather testified the drive time between his
house in Missouri and [M]om’s in Pittsburgh is about 12 hours,
and he said that flying can take anywhere from [four to seven]
hours.
[Factor] 12, each party’s availability to care for the child or
ability to make appropriate child care arrangements.
Both parties are fully capable to make child care
arrangements. Father has explored after-school options as well
as in-home services, were the [C]hildren to relocate with him, and
he and [S]tep-[M]other have been able to ensure that the
[C]hildren are cared for during their periods of custody to date.
Similarly, [M]other relies on her parents for help and uses
Open Door for after-school care for [B.B. and J.B.].
- 15 -
J-A26044-19
[Factor 13], the level of conflict between the parties and the
willingness or inability to cooperate with that party.
The [trial court] finds that these are both fit parents, but in
this case[,] the litigation and the conflict itself seems the greatest
threat to these children’s well-being.
The constant bickering and badgering is a source of harm to
your children. The two of you seem to have resigned yourselves
to the prospect that your communications will always be tortured.
It doesn’t have to be that way. And [the trial court] would
– [the trial court has] already suggested that [M]other seek
counselling. [The trial court] would suggest that [F]ather seek
counselling to improve his ability to communicate in a
non[-]adversarial, non-accusatory, non-confrontational manner
with [M]other via Our Family Wizard.
[Factor] 14, the history of drug and alcohol abuse of a party
or member of a party’s household.
Father testified that he once found a marijuana pipe in a
kitchen drawer when he and [M]other were living together some
years back. He alleged that [M]other has given inappropriate
prescriptions to the [C]hildren.
Apart from [F]ather’s testimony, the record contains no
evidence to support the allegations.
Factor 15, the mental and physical condition of a party or
member of the party’s household.
The [trial court] finds this not to be an issue in this case.
The [trial court] finds no other relevant factor under [factor]
16, but notes that there is potential harm that may result from
the disruption of established patterns of care and emotional
bonds, those existing in this case, and that it underscores the need
for continuity, stability and finality imparted to the custody
arrangement.
In this case[,] it’s a custody arrangement that the parties
agreed to in their marriage settlement agreement in 2015 – 2017.
Excuse me.
- 16 -
J-A26044-19
A modification of custody is not warranted merely because
one parent is unhappy with the existing arrangement. The [trial
courts] have repeatedly emphasized that a party requesting
modification must prove that the alteration of an existing custody
arrangement will be in the [C]hildren’s best interest.
[The trial court] finds that [F]ather has failed to sufficiently
satisfy the [trial court] that a change in custody would benefit
these children, and [F]ather’s modification request is denied.
N.T., 5/17/19, at 66-89.
The trial court then stated its findings with regard to the statutory
custody relocation factors, pursuant to 23 Pa.C.S. § 5337(h), as follows.
Moving on to the relocation factors. Factor 1, the nature,
quality, extent of involvement and duration of the child’s
relationship with the party proposing to relocate and with the
non-relocating party, siblings and other significant persons in the
child’s life.
The [trial court] is concerned about the lack of testimony
and evidence about the relationship and even the bond between
[S]tep-[M]other, whom [F]ather married just last summer.
The [C]hildren have strong bonds with [M]other and
[M]aternal [G]randmother and [S]tep-[G]randfather here in
Pittsburgh, and the [trial court] is concerned about the impact of
disrupting those bonds and having [F]ather and [S]tep-[M]other’s
role expand in the [C]hildren’s lives, on this record.
Mother’s testimony was undisputed that[,] when the parties
separated in the summer of 2016, [] [F]ather told her she had 30
days to get out of the house with the kids, and that [M]other
relayed that ultimatum to [F]ather’s commanding officer.
Asked if he made these remarks[, F]ather answered[, “]I do
not recall,[”] twice.
There’s evidence that the [C]hildren’s relationship with
[F]ather remains fraught, even if [M]other may be partially at fault
in ways such as by retelling the domestic abuse story.
- 17 -
J-A26044-19
Factor 2, the age, developmental stage, needs of the child[,]
and the likely impact the relocation will have on the child’s
physical, educational and emotional development, taking into
consideration any special needs of the child.
[L.B.] is a [three]-year-old and has known primary custody
and not really – doesn’t even recall living with [Father]. The
dramatic change that is proposed by relocation of a
[three]-year-old to live with [F]ather and [Step-M]other is a
bridge too far for [the trial court] to endorse.
Ballwin, Missouri is a safe city, [F]ather testified, and
provided the [Internet] research to support his view. Father said
the [C]hildren would be able to play outside in the area where he
lives and that there are none of the concerns that might restrict
their outdoor play in Pittsburgh, where [M]other lives, in the Elliott
neighborhood.
Father touts Oakbrook Elementary[,] where he proposes
[B.B.] enroll, and Southwest Middle School, where [J.B.] would
attend. He says they’re far better schools than they attend here
in Pittsburgh. Niche.com records students at Westwood
[E]lementary are 47 percent proficient in reading and 27 proficient
– 20 percent proficient in math. I think I got that right, according
to the exhibits.
By contrast, the schools proposed for the [C]hildren in
Ballwin receive better grades, according to [F]ather’s research on
School Digger.com.
However, were relocation granted, [J.B.] would be enrolling
in her fifth school. She’s only entering sixth grade. It would be
[B.B.’s] third school[,] as he enters third grade.
Plus, there is the potential that [F]ather will be transferred
in the next few years in his military duties.
[Factor] 3, the feasibility of preserving their relationship
between the non-relocating party, here [M]other, that would be
[M]other and the [C]hildren, through suitable custody
arrangements, considering the logistical and financial
circumstances of a child.
- 18 -
J-A26044-19
[L.B.] is just [three] years old, and FaceTime and/or phone
contact, it’s difficult to imagine those filling the gap in what she
has come to rely on during her first [three] years of life in
[M]other’s custody. It’s a time when an abrupt change in primary
caregivers could well be traumatic to little [L.B.].
The child is accustomed to daily physical contact with
[M]other and with [M]aternal [G]randmother when she’s not in .
. . [F]ather and [S]tep-[M]other’s partial custody.
Father testified that he would ensure that the kids have
contact with [M]other any time that they want, and that he will
encourage contact between [M]other and the [C]hildren.
Nonetheless, the [trial court] has concerns about the feasibility of
preserving contact with [M]other, particularly for [three]-year-old
[L.B.].
[Factor] 4, the child’s preference, taking into consideration
the age and maturity of the child.
This was addressed in the custody factors, specifically factor
7. It will not be repeated here.
Factor 5, whether there is an established pattern of conduct
of either party to promote or thwart the relationship of the child
and the other party. We addressed this earlier in custody factor
8.
[Factor] 6, whether the relocation will enhance the general
quality of life for the party seeking relocation.
Father would not be relocating. He already lives where he
seeks to move the [C]hildren. So this factor, [the trial court] does
not see it as applicable here.
Factor 7, whether the relocation will enhance the general
quality of life for the [C]hildren, including, but not limited to,
financial or emotional benefit or educational opportunity.
Father clearly has a beautiful home to offer the [C]hildren
in a lovely area, a safe area, in Ballwin, Missouri.
- 19 -
J-A26044-19
[B.B.] appears to be a whiz, and [F]ather would love to see
him academically challenged in a school of better quality than the
one he believes [B.B.] attends in Pittsburgh.
The [C]hildren would be able to see more of
[S]tep-[M]other’s parents, who are part of the [C]hildren’s lives
in Ballwin. They live just 15 miles away and almost every Sunday
get to see the [C]hildren, and [S]tep-[M]other’s sister and niece
are in the area[,] and they get together during the week.
These are all benefits, good relationships for the child — for
the [C]hildren, and [F]ather would like to see them, those
benefits, be available to the kids during primary custody in the
school year, rather than his partial custody[,] which he has at
present.
[Factor] 8, the reasons and motivation of each party for
seeking or opposing the relocation.
Father testified he seeks a relocation because of concerns
about [M]other’s care of the [C]hildren, including truancy,
physical well-being, concerns exemplified by the evidence of poor
oral hygiene, causing severe tooth decay. He testified that the
kids were sick too often and that they missed or canceled – missed
doctor’s appointments or that appointments were canceled.
Yet [F]ather testified that while he recognizes that the
[C]hildren have a strong bond with [M]other, he seeks primary
custody due to [M]other living with her own parents, [M]aternal
[G]randparents. He indicated that [M]other’s reliance on
[M]aternal [G]randparents models dependency, rather than what
he would like to see modelled with the [C]hildren living primarily
with him and [S]tep-[M]other.
The [trial court] finds [F]ather’s motivations to be pure.
Likewise, the [trial court] finds that [M]other’s reasons for
opposing the proposed relocation to be pure as well. They both
love their children and both want to spend as much time as
possible with them.
However, the [trial court] notes, again, that [F]ather has
not once[,] in [two] years[,] exercised the additional custody and
time in Pittsburgh that the 2017 agreement affords him. He’s not
- 20 -
J-A26044-19
once come to Pittsburgh and asked to exercise that additional
custody time.
Factor 9, the present or past abuse committed by a party or
member of the party’s household and whether there is a continued
risk of harm to the child – to the [C]hildren or an abused party.
The [trial court] fully addressed this in the custody factors, notably
custody factor 2.
[Factor] 10, any other factor affecting the best interests of
the [C]hildren.
The [trial court] finds it highly appropriate and is grateful
that [F]ather concluded his rebuttal testimony today talking about
the individual gifts and interests that each of these [C]hildren has,
rather than focusing on historical discord between these parties.
I encourage you to keep that hopeful attitude going forward,
to avail yourselves separately of counselling, to improve your
ability to engage in productive rather than counter-productive
communication on the Our Family Wizard app.
The relocation petition is denied.
N.T., 5/17/19, at 89-96.
Following the conclusion of the hearing on May 17, 2019, the trial court
entered the order that provided that legal and physical custody of the Children
would continue to be governed by the provisions of Section 4 of the MSA dated
February 15, 2017, and denied Father’s request to relocate with the Children
to Missouri.
On June 13, 2019, Father filed a notice of appeal, along with a concise
statement of errors complained of on appeal. In his brief on appeal, Father
raises the following issues:
I. Whether the trial court committed an abuse of discretion and
error of law by conducting the trial in a manner that demonstrated
- 21 -
J-A26044-19
bias and partiality in favor of Mother, and/or was prejudicial to
Father when the trial court assumed the role of advocate for pro
se Mother, forced time constraints on Father’s case-in-chief, and
exhibited bias against Father for owning a gun and being a
member of the United States Marine Corps?
II. Whether the trial court committed an abuse of discretion and
an error of law by failing to award Father primary custody of the
minor children by misapplying and/or failing to analyze the
custody factors set forth in 23 Pa.C.S.A. [§] 5328(a), when its
decision ignored and was against the weight of the evidence
presented at trial, and was contrary to the best interests of the
[C]hildren?
III. Whether the trial court committed an abuse of discretion and
an error of law by denying Father’s relocation request by
misapplying and/or failing to analyze the custody relocation
factors set forth in 23 Pa.C.S.A. [§] 5337(h), when its decision
ignored and was against the weight of the evidence presented at
trial, and was contrary to the best interests of the [C]hildren?
Father’s Brief at 7.
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.
§ 5321-5340, our standard of review 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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated:
- 22 -
J-A26044-19
[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), quoting, Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated
the following regarding an abuse of discretion standard.
Although 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.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern is
the best interests of the child.
Father’s first issue contends that the trial court “conducted the trial in a
manner that demonstrated bias and partiality in favor of Mother [and against]
Father.” Father’s Brief at 7. This claim has three facets. According to Father,
the trial court erred because it: 1) equally divided the trial time between the
parties, but actually afforded Mother more time overall; 2) questioned the
witnesses (Mother and Father) itself, at times, in a matter where Mother was
- 23 -
J-A26044-19
acting pro se; and 3) exhibited bias against Father for being a member of the
United States Marine Corps and possessing a gun. Father’s Brief at 14.
With regard to the first sub-issue, we have carefully reviewed the record
in this matter and the examples provided in Father’s brief at pages 15-23.
Simply stated, we find nothing to support Father’s claim that the trial court
inappropriately allocated the parties’ time in the hearings to work to Mother’s
favor. There is nothing in the present record to demonstrate that the trial
court in any way held the parties to any legal procedure other than that which
is appropriate in a custody hearing, of which both parties had notice. The trial
court afforded both parties an opportunity to present evidence that pertained
to the statutory custody best interest and relocation factors to the trial court.
The trial court acted to move the case along in the interest of its own case
management. We reject Father’s argument that the trial court acted
improperly and, thus, abused its discretion. We do not find bias in the trial
court’s management of its time in this custody case, where the trial court
properly noted that it would need to devote its consideration to all of the
statutory best interest and relocation factors, and the presentation of evidence
with regard to those factors would take considerable time. See N.T., 5/16/19,
at 65-66. Accordingly, we find that the trial court did not abuse its discretion
in its allocation of the time at the custody hearings.
Moreover, regarding Father’s contention that the trial court improperly
assumed the role of advocate for Mother, this Court has stated:
- 24 -
J-A26044-19
[A pro se litigant] is not entitled to any particular advantage
because [] he lacks legal training. [A]ny layperson choosing to
represent himself in a legal proceeding must, to some reasonable
extent, assume the risk that his lack of expertise and legal training
will prove his undoing.
Rich v. Acrivous, 815 A.2d 1106, 1108 (Pa. Super. 2003) (quotations and
citations omitted). However, we have explained:
It is well settled that a trial court always has the right, and
sometimes even the duty[,] to interrogate witnesses, in order to
clarify evidence, or to elicit new information that is necessary to
ensure a fair trial. A new trial is required, therefore, only when
the trial judge’s questioning amounts to an abuse of discretion.
Because a charge of this nature is of the most serious type,
however, the record must clearly show prejudice, bias, capricious
disbelief or prejudgment before an abuse of discretion will be
found.
Fleck v. Durawood Inc., 529 A.2d 3 (Pa. Super. 1987) (quotations and
citations omitted).
We have carefully reviewed the portion of the notes of testimony to
which Father objects as improper intervention on the part of the trial court on
behalf of Mother, who was proceeding pro se. See Father’s Brief at 24-27.
We discern no abuse of the trial court’s discretion in questioning the witnesses,
as the trial court was seeking to clarify the record concerning whether it was
in the Children’s best interests to grant Father’s custody modification petition
and request for relocation. We have carefully reviewed the record, and we
conclude that the trial court did not exhibit partiality, prejudice, bias, or ill will
toward Father in its questioning of the parties.
Finally, we have carefully reviewed the portion of the notes of testimony
to which Father objects on the basis that the trial court exhibited improper
- 25 -
J-A26044-19
bias against him for possessing a gun and being a member of the United States
Marine Corps. See Father’s Brief at 27-30. Father complains that the trial
court ignored documented evidence and Mother’s own admissions of her
physical maltreatment of him, and, instead, improperly focused on Mother’s
allegations that Father had exhibited a gun at her in December of 2014 during
a domestic dispute. Father’s Brief at 28. We can discern no impropriety on
the part of the trial court. We find no merit to Father’s contention that the
trial court was biased against him because he is a member of the United States
Marine Corps and possessed a gun.6
Within Father’s second numbered appellate claim, Father argues that
the trial court abused its discretion and committed an error of law in failing to
award him primary physical custody of the Children and by misapplying and/or
failing to analyze the section 5328(a) custody best interest factors. Father’s
Brief at 30. Father contends that the trial court’s decision ignored and is
against the weight of the evidence and is contrary to the Children’s best
interest. Id.
____________________________________________
6 In his brief, Father asserts that the trial court violated a Federal statute at
section 3938 of the Servicemembers Civil Relief Act, 50 U.S.C. § 3938(b).
Father’s Brief, at 28-29. Father waived this issue by failing to preserve it in
his concise statement and his statement of questions involved portion of his
brief. See Krebs v. United Refining Company of Pennsylvania, 893 A.2d
776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are
not raised in both his or her concise statement of errors complained of on
appeal and the Statement of Questions Involved in his or her brief on appeal);
Pa.R.A.P. 302(a) (issues not presented to the trial court may not be presented
for the first time on appeal).
- 26 -
J-A26044-19
In his first sub-issue, Father argues that, despite the trial court’s finding
that the Children are in no danger with either parent, the trial court
erroneously determined that § 5328(a)(2) was favorable to Mother. Father’s
Brief at 32. He claims that the trial court erred in relying on the past abuse
allegation from 2014, contending that the evidence before the court did not
support a finding that Father was the sole aggressor. Id.
In his second sub-issue, Father argues that the trial court determined
that § 5328(a)(3) was favorable to Mother, despite overwhelming evidence
that the needs of the Children are not met while they are in Mother’s care.
Father emphasizes that L.B. suffered from tooth decay, J.B. suffered from
bullying, J.B.’s grades are in decline, and J.B. and B.B., the two school-aged
children, are repeatedly tardy and absent from school while in Mother’s care.
Id. at 33-34.
In his third sub-issue, Father contends that the trial court erroneously
determined that § 5328(a)(4) favored Mother, despite Father’s presentation
of overwhelming evidence of his ability to provide stability and continuity in
the Children’s education, family life, and community life. Id. at 34. Father
complains that the trial court ignored his documented evidence of superior
schools and a safer neighborhood for the Children in Missouri, and his
photographic evidence of his home and family. Id. at 35. He asserts that the
trial court erroneously pointed to his military career and stated that the
Children should not be moved to yet another school, and concluded that J.B.’s
- 27 -
J-A26044-19
bullying situation has been addressed by J.B.’s school. Id. Father alleges
that he offered the better home for the Children with regard to this factor. Id.
at 36.
In his fourth sub-issue, Father contends that the trial court interpreted
§ 5328(a)(8) to remain favorable to Mother, despite overwhelming evidence
of Mother’s attempts to turn the Children against Father. Id. at 36. Father
complains that: the trial court found that Mother coached the Children for
their October 10, 2018 interview with the court; found Mother attempted to
blame J.B.’s urinary accidents on her recent visit with Father; and, found
Mother routinely fails to communicate critical information to Father regarding
the health and wellbeing of the Children. Id. Father argues that the court
should have weighed this factor in his favor. Id. at 37-38.
In the fifth sub-issue, Father argues that the trial court erroneously
found § 5328(a)(10) favored Mother, despite evidence that he is the parent
more likely to attend to the daily physical, emotional, developmental, and
educational and special needs of the Children. Id. at 38-40.
None of these claims have merit. Father challenges the trial court’s
conclusions and assessments and seeks to have this Court re-find facts,
re-weigh evidence, and re-assess credibility to his view of the evidence. After
a careful review of the record in this matter, we find that the trial court, in
comprehensive fashion, considered and weighed all relevant custody best
interest factors. We will not disturb the trial court’s findings of fact and
- 28 -
J-A26044-19
determinations regarding credibility and weight of the evidence absent a
finding that the trial court committed an abuse of its discretion. See C.R.F.,
45 A.3d at 443. As we stated in King v. King:
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 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) (citations and some
quotations omitted).
The trial court carefully and appropriately considered each custody best
interest factor and the trial court’s conclusions are supported by the record.
Thus, we do not find an abuse of discretion here.
In his third issue on appeal, Father contends that the trial court abused
its discretion and committed an error of law in denying his relocation request
by misapplying and/or failing to analyze the section 5337(h) custody
relocation factors. Father’s Brief at 40. Father contends that the trial court’s
decision ignored and is against the weight of the evidence and is contrary to
the Children’s best interest. Id. In the first portion of his third issue, Father
argues that the trial court erred in its analysis of the Children’s relationships
with the parties’ household members as indicated in § 5337(h)(1). Id. In
particular, Father complains about the trial court’s assessment of the
Children’s bonds with Stepmother and with their maternal grandparents. Id.
at 40-41.
- 29 -
J-A26044-19
In the second portion of his third issue, with regard to 23 Pa.C.S.
§ 5337(h)(2), Father argues that the trial court erred in its analysis of the
impact of the relocation on the Children. Id. at 41. Father contends that the
trial court ignored the overwhelming evidence that ten-year-old J.B. has
suffered from bullying and a decline in grades in school, and that she would
benefit from a relocation with Father to have a better school in a better
neighborhood. Id. Father also urges that the trial court erroneously found
that three-year-old L.B. would be negatively impacted by not being with
Mother, without evidence to support this conclusion. Id. at 41-42. He asserts
that the trial court ignored the fact that L.B. would benefit from relocation by
receiving the medical and dental care she needs. Id. at 42. Father also
asserts that eight-year-old B.B. would benefit from attending better schools
that would cultivate his academic endeavors. Id.
In his final portion of his third issue, Father contends that the trial court
ignored compelling evidence that he presented in relation to § 5337(h)(7) that
the Children would attend better schools and live in a safer neighborhood as
a result of relocating to live with him. Id. He asserts that he presented
evidence that each of the Children would have their own room. Id. Father
states that J.B. and B.B. share a room in Mother’s home, which he urges is
awkward, as J.B. has entered puberty and begun menstrual periods. Id. at
43. Father argues that the evidence was overwhelming that the Children
- 30 -
J-A26044-19
would benefit from the relocation and that their quality of life would improve
significantly. Id.
Again, Father’s third claim simply asks this Court to re-weigh the
evidence in his favor. Yet, as explained above, we cannot reverse a trial
court’s weight of the evidence and credibility determinations unless there has
been an abuse of discretion. In light of the trial court’s careful and thorough
factual finding and balancing, there has been no abuse of discretion here. As
such, Father’s final claim on appeal fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2020
- 31 -