K.A.C. v. J.W.C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.A.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.W.C. :
:
Appellant : No. 637 MDA 2019
Appeal from the Order Entered March 27, 2019
In the Court of Common Pleas of York County Civil Division at No(s):
2018-FC-001927-03
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 25, 2019
Appellant, J.W.C. (“Father”), appeals from the March 27, 2019 Order
that, inter alia, awarded Appellee, K.A.C. (“Mother”), sole legal and physical
custody of the parties’ children, 5-year-old G.C. (“Child”) and 3-year-old H.C
(collectively, “Children”). Because the trial court failed to engage in a
mandatory assessment of the 23 Pa.C.S. § 5328 custody factors prior to the
notice of appeal deadline, we are constrained to vacate the part of the Order
that addresses custody and remand this case for further proceedings.
A detailed factual and procedural history is unnecessary to our
disposition. Briefly, Father and Mother married in August 2012 and are the
parents of Children, who were born during the marriage. The parties
separated in March 2017 after Child disclosed to Mother that Father sexually
abused her. Custody Complaint, 9/24/18, at ¶19. On September 24, 2018,
Mother filed a Complaint for Divorce and Custody alleging that Father sexually
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abused Child and requesting that the trial court grant Mother sole legal and
physical custody of Children.
On October 19, 2018, after a custody conciliation conference, the trial
court entered an Interim Order for Custody granting the parties shared legal
custody, Mother primary physical custody, and Father supervised visitation
every Saturday from 3:00 PM to 7:00 PM.
On March 20, 2019, the trial court held a hearing on Mother’s Complaint
for Custody. At the beginning of the hearing, the parties submitted a signed
Stipulation of Facts to the trial court.1 N.T. Hearing, 3/20/19, at 3. Mother
testified on her own behalf and called the following witnesses: Jami Dumler,
Licensed Social Worker at Pennsylvania Counseling; S.A., Children’s maternal
grandmother; and O.A, Children’s maternal aunt. Father testified on his own
behalf.
At the conclusion of the hearing, the trial court informed parties that it
was going to “dictate an opinion” and stated the following on the record:
It is the opinion of this Court, based on credible testimony
provided from [Child]’s therapist, mother, maternal grandmother,
and [Child], and I have no doubt that Father has sexually abused
Child.
In addition to [Child]’s own disclosure of sexual abuse to me,
credible testimony was provided that [Child] has exhibited a
multitude of symptoms of sexual abuse including the following:
Initiating sex acts with other children; describing sex acts she
should have no knowledge of; playing out sexually activities with
dolls; drawing out sexual scenes, particularly private parts on
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1 We are not able to locate this Stipulation of Facts in the certified record.
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people; aggressive masturbation; asserting objects into her
vagina; urinary accidents and potty training regression;
encopresis; nightmares; night terrors; and recurrent fear based
dreams; dramatic changes in behavior, particularly her fear of
Father in clinging to Mother at custody exchanges; [Child]’s
explosive anger and aggression; and [Child] showing fear of
places or events with little explanation.
For example, her fear of being left alone with her therapist; or her
fear of being left alone with me when I was getting ready to
interview her in chambers.
And another example is when she threw-up on herself at a custody
exchange with Father.
Individually these symptoms may not necessarily be an indication
of sexual abuse, but viewed together they have convinced me
[Child] has been abused.
Because this [c]ourt is making a finding of sexual abuse against
Father, and I believe it is the only significant factor in this case,
and I’m not going to review any other custody factors because
they have no weight when compared with this finding of abuse.
This finding of abuse necessitates that I grant sole legal and
physical custody to mother, and I’m very sorry that the system
has failed [Child] to this point.
N.T. Hearing, 3/20/19, at 168-170; Trial Ct. Op., filed 3/27/19, at 1-3. On
March 27, 2019, the trial court issued an Order that, inter alia, granted sole
legal and physical custody of Children to Mother and ordered Father to have
no contact with Children.2
Father timely appealed and filed a contemporaneous Concise Statement
of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i)
(“Concise Statement”). In his Concise Statement, Father asserted, inter alia,
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2 The Order also found Father in contempt for violating the terms of the
Interim Order for Custody.
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that the trial court “erred and abused its discretion by failing to make findings
under each of the 16 child custody factors [pursuant to 23 Pa.C.S. 5328].”
Concise Statement, 4/22/19, ¶3. In response, the trial court issued a Rule
1925(a) Opinion that addressed the Section 5328 custody factors.
Father raises the following issue for our review: “Whether the [c]ourt
erred and abused its discretion by awarding Mother sole legal and physical
custody of [Children] by concluding that Father sexually abused [Child] and
that such finding over-rules [sic] all other factors.” Father’s Brief at 5.
This Court reviews a custody determination for an abuse of discretion.
In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse
of discretion “merely because a reviewing court would have reached a different
conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial
court abuses its discretion if, in reaching a conclusion, it overrides or
misapplies the law, or the record shows that the trial court’s judgment was
either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will.” Id.Further, our scope of review is broad, but we are “bound by findings
supported in the record, and may reject conclusions drawn by the trial court
only if they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509, 512
(Pa. Super. 2006) (citation omitted). Importantly, “[o]n issues of credibility
and weight of the evidence, we defer to the findings of the trial judge who has
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had the opportunity to observe the proceedings and demeanor of the
witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation
omitted). We can only interfere where the “custody order is manifestly
unreasonable as shown by the evidence of record.” Saintz, 902 A.2d at 512(citation omitted).
It is well settled that “[t]he paramount concern in child custody cases is
the best interests of the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018).
“The best-interests standard, decided on a case-by-case basis, considers all
factors which legitimately have an effect upon the child’s physical, intellectual,
moral and spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super.
2017).
The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court
to consider all of the Section 5328(a) best interests factors when “ordering
any form of custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the
reasons for its decision when making an award of custody either on the record
or in a written opinion.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. Super.
2014). See also 23 Pa.C.S. § 5323(a), (d). However, “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). Notably, “section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen Section 5328 custody factors prior to
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the deadline by which a litigant must file a notice of appeal.” C.M. v. M.M.,
2019 PA Super 216, *4 (filed July 12, 2019), quoting C.B. v. J.B., 65 A.3d
946, 955 (Pa. Super. 2013).
In his Brief, Father argues that the trial court erred by failing to consider
all of the Section 5328 custody factors prior to issuing a Rule 1925(a) Opinion.
Father’s Brief at 13. We are constrained to agree.
Our review of the record reveals that the trial court only considered one
of the Section 5328 custody factors when it made its custody decision. In
fact, the trial court conceded this when it stated the following on the record
and in a written Opinion: “Because this [c]ourt is making a finding of sexual
abuse against Father, and I believe it is the only significant factor in this case,
and I’m not going to review any other custody factors because they have no
weight when compared with this finding of abuse.” N.T. Hearing, 3/20/19, at
170; Trial Ct. Op., filed 3/27/19, at 3. As noted above, the trial court must
engage in a “mandatory assessment of the sixteen Section 5328 custody
factors prior to the deadline by which a litigant must file a notice of
appeal.” C.M., supra at *4. Thus, it is of no moment that the trial court
considered the Section 5328 custody factors in its Rule 1925(a) Opinion, after
Father filed his Notice of Appeal.
Accordingly, we vacate the portion of the March 27, 2019 Order that
addresses custody, and remand this matter for further proceedings. The trial
court shall immediately enter an interim custody order. The trial court shall
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review the record, incorporating evidence from the March 20, 2019 custody
hearing and the parties’ Stipulation of Facts. If, after reviewing the record,
the trial court needs additional evidence on discrete issues, the trial court shall
schedule a hearing for that limited purpose. The trial court shall ensure that
the parties’ Stipulation of Facts is included in the certified record. The trial
court shall enter a final custody order based on its consideration and
assessment of the Section 5328 custody factors within 30 days of this
Memorandum or, if an evidentiary hearing is scheduled, within 30 days of the
conclusion of the hearing. Finally, the trial court shall delineate on the record
or in a written opinion the reasons for its decision—including consideration of
all of the Section 5328 custody factors—prior to the deadline by which Father
must file a notice of appeal.3
Order vacated in part. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2019
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3 In light of our disposition, we decline to address Father’s remaining
arguments.
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