C.M.K. v. F.P.K., Jr. ( 2018 )

J-S38015-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.M.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
F.P.K., JR. :
:
Appellant : No. 227 WDA 2018
Appeal from the Order Entered January 8, 2018
In the Court of Common Pleas of Venango County Civil Division at No(s):
100-2013
BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2018
F.P.K., Jr. (“Father”) appeals from the January 8, 2018 child custody
order denying his petition to modify the existing custody arrangement wherein
C.M.K. (“Mother”) exercises primary physical custody of their two sons, F.K.
and B.K., during the school year, and the parties share custody during the
summer. After careful review, we affirm.
The parties married on August 21, 2004. Three children were born of
the marriage: F.K., born January 2006; E.K., born August 2008; and B.K.,
born February 2011. Mother filed a complaint in divorce on January 28, 2013.
Tragically, E.K. died in April of 2014, while in Father’s custody. 1
____________________________________________
1 The record reveals that E.K. fell from a farm tractor Father was operating,
and was run over, suffering fatal injuries. Father’s response to petition for
emergency custody relief, 5/23/14, at ¶ 9. F.K. and B.K. witnessed the
incident, and saw E.K. fatally injured on the ground. Id. at ¶ 10.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38015-18
The parties agreed to a child custody consent order dated June 18,
2015. The order provided Mother primary physical custody of F.K. and B.K.
Father exercised partial physical custody of F.K. and B.K. every other weekend
from Thursday at 4:00 p.m. until Sunday at 7:00 p.m. Additionally, Father
exercised physical custody on alternating Wednesdays from 4:00 p.m. to 7:00
p.m., as well as an overnight on Father’s first custodial Wednesday of the
month.
Pursuant to an agreement of the parties, the trial court amended the
order on December 2, 2015. The order expanded Father’s weekend physical
custody to Thursday at 4:00 p.m. through Monday at 9:00 a.m., with a minor
alteration in the winter due to Father’s work schedule. However, Mother and
Father could not agree on a summer physical custody schedule. Following a
trial, on June 28, 2016, the trial court issued findings of fact and an order
granting Father shared physical custody of F.K. and B.K. on a week-on, week-
off basis over the summer. The custody schedule during the school year
remained the same.
On March 20, 2017, Father filed a petition for modification of custody,
seeking shared physical custody. The court held a trial on Father’s petition on
October 19, 2017 and October 20, 2017. The court issued findings of fact on
December 22, 2017, and an order denying Father’s petition for modification
of physical custody on January 8, 2018. Father filed a timely notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
-2-
J-S38015-18
Father raises the following issues for review:
1. Did the trial court commit an error of law and abuse its
discretion in denying [Father]’s request for an increase in custodial
time to a pure shared [schedule] by ignoring clear evidence that
[Mother] was less likely to encourage and permit frequent and
continuing contact with [Father], and that [Mother] continues to
promote and facilitate a campaign to turn the children against
[Father] in an atmosphere that fosters a “we versus Dad” mindset
in the children?
2. Did the trial court commit an error of law and abuse its
discretion in denying [Father]’s request for an increase in custodial
time to a pure shared schedule by failing to adequately consider
the facts and credible evidence of record elicited at trial which
demonstrated the . . . successful use of[,] and transition to[,] a
pure shared custody schedule over the prior two summers?
3. Did the trial court commit an error of law and abuse its
discretion in denying [Father]’s request for an increase in custodial
time to a pure shared [schedule] where an independent
examination of the record suggests and warrants an order on the
merits of this case that awards pure shared physical custody
pursuant to the factors enumerated at 23 Pa.C.S.A. § 5328?
Father’s brief at 5-6.
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
-3-
J-S38015-18
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); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015) appeal denied, 129
A.3d 521 (Pa. 2016).
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) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)). 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
5328(a) sets forth the best interest factors that the trial court must consider.
See E.D. v. M.P., 33 A.3d 73, 79-80 n.2 (Pa.Super. 2011). Specifically,
§ 5328(a) of the Act provides as follows:
-4-
J-S38015-18
§ 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.
(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.
-5-
J-S38015-18
(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).
Further, with regard to custody, we have stated as follows:
. . . “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.A. § 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, 70 A.3d 808 (Pa. 2013). . . .
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
-6-
J-S38015-18
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, 68
A.3d 909 (Pa. 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).
Although the 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 almost entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339
(Pa.Super. 2013). Critically, as we stated in M.J.M.:
It 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
evidence, we must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand.”). Our decision here does
not change that.
Id. (emphasis added).
With regard to Father’s first issue, Father contends the trial court erred
by concluding factors one and eight do not favor either party. Father argues
both factors should favor him. Because of the factual similarities regarding
Father’s argument, we consider factors one and eight together.
Here, the trial court explained its evaluation of factors one and eight
as follows:
-7-
J-S38015-18
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and other party.
The court finds that both the mother and the father equally at this
time are encouraging and permitting frequent and continuing
contact between the child and the other party.
....
(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 court notes that there has been a significant history of the
mother influencing both of these children, especially the oldest
son, [F.K.], negatively towards the father; however the most
recent testimony indicates that has been lessening significantly
and the court finds that the father has made derogatory
comments about the mother to or in front of the children.
Therefore, the court finds that both parents have exercised
conduct that would tend to turn the child against the other parent.
Trial Court Findings, 12/22/17, at 1, 3-4.
With respect to factor one, Father asserts that Mother is less likely to
encourage frequent and continuing contact with the other party. Father’s brief
at 16. Father claims the children call Mother constantly while in his care, while
Father has to remind Mother to have the children call him at night. Id. at 17.
Father argues that he has been accommodating to Mother’s requests for
schedule changes, while Mother did not call Father when he failed to appear
for a July 3rd custody exchange. Id. Father concludes that the evidence
established the unreasonableness of Mother’s non-reciprocated demands, and
showed that Father provides Mother greater contact with the children than
Mother does for Father. Id. at 19. Accordingly, Father asserts factor one
militates in his favor. Id.
-8-
J-S38015-18
With regard to factor eight, Father argues that the trial court erred by
concluding Mother and Father both equally attempt to turn the children against
the other parent. While Father acknowledges the children may have
overheard negative comments made between Father and his mother, Father
asserts, “this pales in comparison to the continued, directed attempts by
Mother to alienate Father from his children.” Id. at 19. Father notes
testimony from the guardian ad litem that F.K. does not like to admit doing
anything fun at Father’s house, and almost has a “we versus dad mentality.”
Id. To support his claim that Mother alienates F.K. and B.K., Father relies on
Mother’s testimony regarding a July 3rd custody exchange. Id. at 21. F.K.
inquired as to why he had to see Father on the holiday. Id. Father claims
Mother, instead of encouraging F.K. to spend time with Father, framed her
answer as, "if your dad has you on the 4 th, would you like to come back and
see me?" Id. at 21. Father asserts Mother’s behavior greatly outweighs any
comments made by his family, and necessitates factor eight be weighed in his
favor. Id. at 22.
During the trial, Mother and Father presented countervailing
perspectives that criticized the other’s interference with the parent-child
relationship while simultaneously defending their own behavior. In this vein,
Father testified that F.K. and B.K. have been “brainwashed” and alienated by
Mother. N.T., 10/19/17, at 162, 170. Mother denied any such plot to ruin
Father’s relationship with F.K. and B.K. N.T., 10/20/17, at 107. Further, she
-9-
J-S38015-18
presented the testimony of F.K., the oldest child, who reported that Father
complains about not being awarded “fifty-fifty” custody, and having to pay
child support. N.T., 10/19/17, at 22, 65. Additionally, F.K. reported that
Father once threatened to shoot Mother’s boyfriend in the head. Id. at 28.
Father testified that he is the one who is flexible and accommodating,
while Mother is not. Id. at 161. Father also claimed it is difficult for him to
speak to the children when they are in Mother’s custody. Id. Mother
countered that Father has made altering the custody schedule difficult, such
as demanding that Mother agree to trade two days of custody when she asks
for one day of his. N.T., 10/20/17, at 99. As it relates to encouraging contact
with the children, Mother stated that she makes sure the children finish their
homework prior to going to Father’s home so they can relax and spend quality
time with Father or their grandparents, without worrying about getting
everything ready for school. Id. at 56, 89. Further, Mother claims that she
reminds F.K. to call Father. Id. 118.
Father also presented the testimony of his ex-girlfriend, A.S., who
recalled an encounter that she had with Mother and the younger son at a
store. N.T., 10/19/17, at 128. A.S. testified that, in B.K.’s presence, Mother
demeaned Father’s parenting skills. Id. Mother acknowledged talking to A.S.,
but denied that the conversation regarding Father occurred. N.T., 10/20/17,
at 117.
- 10 -
J-S38015-18
Similarly, Father asserts that Mother’s conversation with F.K. regarding
the July 3rd custody exchange established her “‘us against dad’ mentality.”
Father’s brief at 21. The parties’ physical custody schedule provides the
parent who does not have physical custody of the children over the week that
includes July 4th, with physical custody from July 3rd at 5:00 p.m., until July
4th at noon. Mother’s testimony regarding her discussion with F.K. follows:
I had the kids July 4th, but the custody agreement is the
parent that doesn’t have them for the 4th gets them from 5:00 on
the 3rd from noon to four, which it -- even [F.K.] is why do we got
to go at this time? It’s just for a couple hours. I explained to him
if your dad has you on the 4th, would you like to come back and
see me? Oh, I get it.
N.T., 10/20/17, at 114.
Rather than suggesting F.K. leave Father to spend time with her, as
suggested by Father’s argument, Mother’s testimony explains the parties’
custody schedule, as well as what will happen when Father has custody on
July 4th, and the children have the overnight with Mother on July 3rd.
Virginia Sharp, Esquire, the court-appointed guardian ad litem, provided
the simplest analysis of this case: the main issue “is the fact that these parents
hate each other.” N.T., 10/19/17, at 90. While Ms. Sharp acknowledged
F.K.’s tendency to invoke the “[us] versus dad” mentality, she did not believe
“either household encourages the relationship that these boys have with the
individuals in the other household, and it’s just a disservice to the boys.” Id.
The trial court agreed with Ms. Sharp’s characterization and, it
concluded that neither factor one nor eight favored either parent. The certified
- 11 -
J-S38015-18
record supports that conclusion. While Father highlights the testimony he
believes is favorable to his position, a review of the foregoing evidence
supports the trial court’s conclusion that factors one and eight are neutral.
Accordingly, we do not disturb the trial court’s determination in this regard.
Next, we address Father’s second and third issues together. In Father’s
second issue, he argues that the success of the alternating physical custody
schedule during the summer should have weighed in favor of a year-round
shared physical custody schedule, as opposed to the trial court’s decision to
maintain the status quo. Father’s brief at 23-24. Similarly, in his third issue,
Father suggests that an independent review of the record supports a shared
physical custody schedule. Id. at 24. These arguments focus on Mother’s
purported failure to support the children developing a healthy relationship with
him, and her continuing attempts to isolate him from his sons by “poisoning”
them. Id. at 27. Father contends the trial court erred by “simply relying on
the prior custody [o]rder.” Id. at 26.
The parties offered conflicting testimony with respect to the success of
the summer custody schedule. Father testified that his additional time with
the children during the summer was beneficial. N.T., 10/19/17, at 149.
However, F.K. testified he did not like the summer schedule because he does
not get to see his friends. Id. at 23. F.K. would prefer no set schedule, but
if a schedule were required, he would like less time with Father. Id. at 22.
Mother testified the summer schedule is tolerable. N.T., 10/20/17, 108.
- 12 -
J-S38015-18
Mother thought June and July went well, but by August, Mother observed the
children were tired of the schedule, did not want to go with Father, and
complained. Id. at 108-109.
As we construe Father’s second and third issues, we interpret them as
a dispute regarding the trial court’s findings of fact and determinations
regarding credibility and weight of the evidence. Father, in essence, questions
the trial court’s conclusions and assessments and seeks to have this Court re-
find facts, re-weigh evidence, and/or re-assess credibility in accordance with
his view of the evidence. Under the aforementioned standard of review
applicable in custody matters, 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., supra at 443; see also
E.R., supra 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. . . .
(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005)). After a
thorough review of the record, we find no abuse of discretion. To the extent
Father challenges the weight attributed to any factor by the trial court, no
relief is due. As stated above, the amount of weight that a trial court gives to
- 13 -
J-S38015-18
any one factor is almost entirely within its discretion. See M.J.M., supra at
339.
In sum, upon review of the certified record, we conclude that the trial
court’s determinations regarding the custody factors set forth in § 5328(a) to
determine the best interests of the children are supported by competent
evidence. Thus, we do not disturb them. See C.R.F., supra at 443; see
also E.R., supra at 527. Accordingly, we affirm the trial court’s order denying
Father’s petition to modify custody.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2018
- 14 -