D.L.D. v. C.L.B. ( 2015 )

J-S74030-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
D.L.D., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
C.L.B., :
:
Appellee : No. 1598 EDA 2014
Appeal from the Order entered April 30, 2014,
Court of Common Pleas, Philadelphia County,
Domestic Relations at No. 0C0707383
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JANUARY 14, 2015
Appellant, D.L.D. (“Mother”), appeals from the order entered on April
30, 2014 by the Philadelphia Court of Common Pleas that granted C.L.B.
(“Father”) primary physical custody of their child, J.C.B. (the “Child”),
following the conclusion of the 2014-2015 school year. After careful review,
we affirm.
A summary of the relevant procedural history and facts is as follows.
Mother and Father married in 2000. The Child was born in November 2002.
Mother and Father subsequently separated in 2006.
The instant custody case commenced on April
11, 2007 when Mother filed a complaint for primary
physical and legal custody of [the Child]. On July
18, 2007, Mother’s complaint was dismissed for lack
of prosecution.
On September 5, 2008, Father filed a
complaint for shared physical and legal custody of
*Retired Senior Judge assigned to the Superior Court.
J-S74030-14
[the Child], which was dismissed for lack of
prosecution on August 3, 2009.
On July 10, 2009, Father filed a new complaint
for shared physical and legal custody. On
September 8, 2009, the Honorable Margaret Murphy
entered an interim order granting Mother and Father
shared physical and legal custody of [the Child]
pending a full hearing scheduled for February 12,
2010. On February 12, 2010, the matter was
continued to July 7, 2010 with the temporary order
to remain in effect. The Honorable Doris Pechkurow
entered a final order on July 7, 2010 granting Mother
primary physical custody of the [C]hild during the
school year with Father to follow a specific partial
physical custody schedule. During the summer, the
parties were ordered to follow the shared physical
custody schedule of the September 8, 2009 Order.
On April 19, 2012, Father filed a petition to
modify requesting shared physical custody and a
petition for contempt stating that Mother failed to
consult him on several decisions concerning the
[C]hild. Father also filed a motion for expedited
relief on August 6, 2012. On September 7, 2012,
Father’s motion for expedited relief was granted in
part, and the Honorable Peter Rogers ordered home
investigations on Mother’s and Father’s residences.
Following a hearing on February 13, 2013, the
Honorable Holly Ford dismissed Father’s contempt
petition and entered a final order confirming primary
physical custody with Mother and partial physical
custody with Father. The parties were granted
shared legal custody and ordered to attend family
counseling.
On August 19, 2013, Mother filed a petition to
modify requesting a change in the pick-up and drop-
off location of the [C]hild and that [the Child] attend
school in Philadelphia. Mother also filed a petition
for contempt on August 26, 2013 stating that Father
moved and enrolled the [C]hild in school in
Collegeville (Perkiomen) without her consent. After
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a hearing on January 31, 2014, the Honorable Holly
Ford held the matter in abeyance until the [C]hild
could be interviewed by the court. On February 6,
2014, Judge Ford interviewed [the Child] and
entered an interim order directing both parties to
submit information to Chambers regarding their
respective choices of school for the [C]hild to attend
the following academic year. Mother’s contempt
petition and petition to modify were relisted for
status on April 30, 2014.
After a hearing on April 30, 2014, Judge Ford
entered a final order awarding Mother primary
physical custody of [the Child] during the school year
with Father to have partial physical custody every
weekend, and the parties were directed to keep the
[C]hild enrolled at Holmes [(the Child’s current
school)] through the end of the 2014-2015 school
year. The order transfers primary physical custody
to Father during the 2015-2016 school year with
partial physical custody to Mother, and [the Child] is
to attend Perkiomen. The parties were awarded
shared legal custody.
On May 30, 2014, Mother filed a timely notice
of appeal of the April 30, 2014 [o]rder and a
statement of errors complained of on appeal []
simultaneously.
Trial Court Opinion, 7/11/14, at 1-3 (internal citations omitted).
On appeal, Mother raises the following issues for our review:
A. Whether the [trial] court committed an abuse of
discretion when it ordered that during the 2015-2016
school year that Father shall receive primary physical
custody of the minor child and Mother shall have
partial physical custody of the minor child without
any analysis of the sixteen [sic] custody factors
pursuant to 23 Pa[.C.S.A.] § 5328 and/or
23 Pa[.C.S.A.] § 5323(d)?
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B. Whether the [trial] court committed an abuse of
discretion when it issued an order to change the
custody, living accommodations, and school districts
for the minor child that will take effect approximately
a year and five months after the court’s order was
entered?
C. Whether the [trial] court committed an abuse of
discretion when it ordered that during the 2015-2016
school year that the minor child shall attend
Perkiomen School without determining how this
change serves the best interest of the child pursuant
to 23 Pa[.C.S.A.] § 5328?
D. Whether the [trial] court committed an abuse of
discretion when it ordered that during the 2015-2016
school year that the minor child shall attend
Perkiomen School sans testimony or evidence from
current school officials or school officials affiliated
with the Perkiomen School to determine minor child’s
best interests, needs, and how or if those needs
could be addressed at the Perkiomen School?
E. Whether the [trial] court committed an abuse of
discretion when it ordered that Father shall receive
primary physical custody of the minor child without
any examination of Father’s current household
members pursuant to 23 Pa[.C.S.A.] §[§] 5329 and
5329.1?
Mother’s Brief at 5.
We begin with our well-settled standard of review for custody cases:
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
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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.
D.K. v. S.P.K., __ A.3d __, 2014 WL 4923111, at *11 (Pa. Super. Oct. 2,
2014) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).
For her first issue on appeal, Mother asserts that the lower court
committed an abuse of discretion when it entered its April 30, 2014 order
“without any analysis of the [seventeen] custody factors pursuant to
23 Pa[.C.S.A.] §§ 5328 and/or 5323(d).”1 Mother’s Brief at 8. Mother
argues that “Judge Ford failed to mention in open court, via written opinion,
or in an order[,] her analysis of the [seventeen] factors delineated in
23 Pa[.C.S.A.] § 5328(a)[,]” and that the trial court’s “failure to do so
constitutes an abuse of discretion.” Id. at 12.
This Court recently explained:
With any child custody case, the paramount concern
is the best interests of the child. The legislature
1
We note that although it is not relevant to the disposition of this case,
neither of the parties nor the trial court recognizes that the legislature
amended section 5328(a) and added a seventeenth factor, which became
effective on January 1, 2014. The statute now includes 23 Pa.C.S.A.
§ 5328(a)(2.1), which requires consideration of child abuse and involvement
with child protective services. Although Mother filed her modification
petition prior to the effective date of the amended version of section 5328,
the proceeding on the petition occurred after the effective date, so the
amended version applies. See C.R.F. v. S.E.F., 45 A.3d 441, 445
(Pa. Super. 2012).
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enacted section 5328(a) of the Child Custody Act in
order to delineate the factors the trial court must
consider when awarding any form of custody.
Section 5328(a) sets forth a list of [seventeen]
factors that trial courts must consider in a best
interests of the child analysis in making any custody
determination.
D.K., 2014 WL 4923111, at *6-7 (internal citations and quotations omitted).
The seventeen factors enumerated in section 5328(a) include:
(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)
(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
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violence where reasonable safety measures are
necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate
with one another. A party's effort to protect a child
from abuse by another party is not evidence of
unwillingness or inability to cooperate with that
party.
(14) The history of drug or alcohol abuse of a party
or member of a party's household.
(15) The mental and physical condition of a party or
member of a party's household.
(16) Any other relevant factor.
42 Pa.C.S.A. § 5328(a).
Not only are courts required to consider the aforementioned factors,
but “[s]ection 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.’”
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014); see also 23 Pa.C.S.A.
§ 5323(d). This Court has established that “section 5323(d) requires the
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trial court to set forth its mandatory assessment of the [seventeen] [section
5328 custody] factors prior to the deadline by which a litigant must file a
notice of appeal.” A.V., 87 A.3d at 823 (quoting C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013)).
In C.B., this Court noted that “[s]ection 5323(d) does not contemplate
a specific time period for compliance with section 5328.” C.B., 65 A.3d at
952. We nonetheless concluded:
To interpret section 5323(d) so as to permit a trial
court to forego addressing the factors until it issues
its Pa.R.A.P. 1925(a) opinion – i.e., after a party has
filed an appeal and a concise statement – renders
that section’s language mere surplusage. Under
such an interpretation, if a party decides not to
appeal the custody order, and the trial court does
not address the factors contemporaneously with the
custody order, the court may never address the
factors. However, the [Custody] Act’s language
requiring the trial court to do so is clear and
unequivocal. See 23 Pa.C.S.[A.] §§ 5328 (“[T]he
court shall determine the best interest of the child
by considering all relevant factors …”) (emphasis
added); 5323(d) (The court “shall then delineate the
reasons for its decision on the record in open court
or in a written opinion or order.”) (emphasis added).
Such an interpretation would all but guarantee that,
in many cases, compliance with the [Custody] Act
would never occur. This result clearly is not what
the General Assembly intended in promulgating the
new [Custody] Act, because it would render the
mandatory language in section 5328 and section
5323 meaningless.
Id. at 952-53 (emphasis in original).
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In light of its holding, the C.B. Court directed trial courts to “address
the statutory factors, either orally in open court or in a written opinion,
contemporaneously with the issuance of the custody order[,]” providing that
[i]f, because of the court’s substantial case load or
other factors, compliance with the [Custody] Act is
not possible contemporaneously with the order, the
trial court should indicate in the custody order that
its examination of the factors is forthcoming shortly,
so as to not impede a litigant’s ability to pursue an
appeal if the litigant so chooses.
Id. at 955.
In the case at bar, the trial court failed to comply with the mandate
set forth in C.B., as the trial court neither discussed the seventeen factors
on the record in open court nor issued a written opinion contemporaneously
with its order detailing its analysis of the seventeen factors in this case.
Although the trial court provided a discussion in its 1925(a) opinion of its
“findings of fact with regard to the [seventeen] custody factors, which, in the
aggregate, form a basis for the [April 30, 2014 order,]” this discussion of its
assessment of the custody factors arose only after Mother filed the instant
appeal. Pursuant to the holding of C.B., the trial court committed an error
of law. See id. at 952-53.
Nevertheless, although Mother argues that the trial court erred in
failing to provide its analysis of the seventeen factors prior to her filing an
appeal, she neither claims prejudice as a result of the trial court’s infraction
nor proposes a remedy. Moreover, Mother raised specific allegations of error
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in her 1925(b) statement relative to the trial court’s consideration of the
seventeen custody factors and presents arguments against the trial court’s
analysis of the seventeen factors in her brief on appeal. Thus, Mother had a
full opportunity to present a meaningful argument for appellate review. To
vacate the trial court’s April 30, 2014 order on such a procedural technicality
in the absence of prejudice to the appellant would be to elevate form over
substance. This is especially so because this is a children’s fast track appeal
and the purpose of this designation is to “expedite the disposition” of the
case. In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009). We therefore
address the merits of Mother’s claim.
Mother challenges the trial court’s assessment of the section 5328(a)
factors, specifically assailing the trial court’s analysis with regard to factors
three, four, six, eight, twelve, and sixteen. At the outset, we agree with
Mother that the record does not support the trial court’s findings of fact
made concerning the complained of factors.
Regarding factor three, we agree with Mother that the record does not
support the trial court’s conclusion that “as [the Child] enters his teen years
it would be beneficial for him to spend more time with [] Father so as to
have a steady male role model.” Id. The trial court’s opinion belies this
notion as the trial court states that both Mother and Father are equally
capable of performing parental duties, of maintaining a “loving, stable,
consistent and nurturing relationship with the [C]hild adequate for the
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[C]hild’s emotional needs,” and of attending to the Child’s “daily physical,
emotional, developmental, educational and special needs of the child.” Id.
at 6, 8-9.
We also agree with Mother that the trial court erred by emphasizing
the fact that the Child attended five different schools since he began
kindergarten in weighing factors four, eight, and sixteen in Father’s favor.
The record reflects that all but one of the school changes were the joint
decision of Mother and Father. See N.T., 4/30/14, at 24-25.
Furthermore, we agree with Mother that the record contains no
evidence that the school changes negatively affected the Child. See
Mother’s Brief at 15. At the hearing, Father asked the Child’s teacher
whether changing schools several times would affect the Child’s learning
disability or potentially cause a learning disability. N.T., 4/30/14, at 18.
Miss Johnson responded by stating, “I can’t answer based on what causes a
specific learning disability. That’s from a psychologist point of view with a
diagnosis. I can say that basically what brings his levels low is missing
skills.” Id. In the absence of any testimony establishing that the change in
schools “had an ongoing negative effect on the [Child’s] welfare,” we
conclude that the trial court erred by basing the custody award on the fact
that the Child attended five different schools since he began kindergarten.
See In re Leskovich, 385 A.2d 373, 377 (Pa. Super. 1978) (“we could not
base a custody award on such a finding unless we could conclude that the
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past behavior had an ongoing negative effect on the children’s welfare.”);
see also Commonwealth ex rel. Jordan v. Jordan, 448 A.2d 1113, 1116
(Pa. Super. 1982) (reversing the lower court’s decision “where there was no
testimony at trial to support an inference that the changes in residence
adversely affected the child.”).
Regarding factor six, which requires the trial court to consider the
child’s sibling relationships, the record reveals no support for the trial court’s
determination that living with Father “could potentially encourage [the Child
and J.R., Father’s fiancée’s son, who, like the Child, also has a learning
disability] to build a support network for one another at home and at school,
benefitting both children.” See Trial Court Opinion, 7/11/14, at 7. The only
testimony regarding the Child’s relationship with J.R. 2 occurred during the
2
Mother also argued that Father’s fiancée’s son, J.R., is not the Child’s
sibling as he is neither a biological sibling nor a step-sibling. We find this
argument to be without merit. As the record reflects, Father “has been with
his fiancée and her son, J.R., for the past eight years.” Trial Court Opinion,
7/11/14, at 15 (citing N.T., 4/30/14, at 46). We are unaware of any case
law establishing that non-biological sibling relationships do not bear on a
child’s best interests. To the contrary, this Court has previously considered
step-sibling and quasi-sibling relationships in assessing a child’s best
interests in a variety of contexts. See M.E.V. v. F.P.W., 100 A.3d 670, 678
(Pa. Super. 2014) (“Plainly all of the sibling, step-sibling, and quasi-sibling
relationships in this case have either emerged or evolved since the trial
court’s 2012 order was entered in ways that bear materially on the
Children’s best interests.”); Fuehrer v. Fuehrer, 906 A.2d 1198, 1204 (Pa.
Super. 2006) (concluding that the trial court erred in granting relocation
without considering “how the children’s move to another country [would]
impact the relationship and the bond that must exist between the[] children
and their older step-sisters.”); Ketterer v. Seifert, 902 A.2d 533, 541
(Pa. Super. 2006) (“this Court’s concern must be centered upon whether the
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trial court’s in camera interview of the Child, wherein, the following
exchange occurred:
Q. Let’s see what else, you have a stepbrother or
kind of a stepbrother, [J.R.] at your dad’s house?
A. Yes.
Q. Do you get along with him?
A. Sometimes.
Q. You know that he has some reading problems
too, don’t you?
A. Yes.
Q. Do you work with him at all?
A. No.
N.T., 4/30/14 (child interview), at 12-13. In the absence of any other
testimony or evidence, we conclude that there is no evidence in the record
to support the trial court’s finding in this regard.
Finally, we agree with Mother that in considering the parties’
availability to care for the Child pursuant to factor twelve, the trial court
mischaracterized Mother’s testimony at trial regarding her willingness to
move is in S.K.’s best interests. A move across the country will not only
take S.K. away from his father and step siblings, with whom he shares a
close relationship, but also an educational plan.”). Moreover, the comment
to section 5328 provides that “[s]ubsection (a)(6) is intended to include full-
blood siblings, half-blood siblings, step-siblings and adoptive siblings.” Thus,
Mother’s argument that the trial court’s analysis of the Child’s relationship
with J.R. is flawed because J.R. “is in no way a sibling of [the Child]” is
without merit.
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make arrangements to travel to Perkiomen. In its analysis of this factor, the
trial court stated that “Mother definitively stated that it was ‘too far’ for her
to go when questioned as to whether she was willing to make arrangements
to travel to Perkiomen.” See Trial Court Opinion, 7/11/14, at 10. The
record, however, provides as follows:
Q. Would you agree for [the Child] to attend school
[at Perkiomen]?
A. No.
Q. Why?
A. It’s too far for me to, you know, go to [sic] -- I
feel as though he has special services, then I
wouldn’t see [the Child]. I wouldn’t get to see him,
you know, as much as I see him. And the services
that he get [sic] now I think is more than enough.
It’s adequate. Because he’s getting the services that
he needs from both school and both from private
tutoring.
N.T., 4/30/14, at 26.
At no point did the trial court ask Mother whether she was willing to
make arrangements to travel to Perkiomen. Mother’s testimony simply
expressed her preference regarding the Child’s school, stating that she did
not want the Child to attend Perkiomen because she felt he received
adequate services from the school he currently attended. Id. Thus, we find
the trial court’s statement to be unsupported by the record.
The trial court’s erroneous findings notwithstanding, we conclude that
reversal is not warranted. Rather, as previously stated, this Court’s role is
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to determine “whether the trial court’s conclusions are unreasonable as
shown by the evidence of record.” D.K., 2014 WL 4923111, at *11 (quoting
J.R.M., 33 A.3d at 650).
In addition to the unsupported considerations, the trial court relied
upon the Child’s preference to spend more time with Father; Father’s
testimony that he is the one that helps the Child with his school work and
projects; and that although the Child is doing well at Holmes with his special
education teacher, he will have to change schools for seventh grade and
Perkiomen is a better school and has special education programs to meet the
Child’s needs. The record supports the trial court’s findings in these
respects.
First, Mother argues that there is no evidence to support the trial
court’s finding that Father is more proactive in the Child’s education.
Mother’s Brief at 13. The trial court, however, deemed credible, Father’s
testimony that he is the parent that helps the Child with school work and
projects. Trial Court Opinion, 7/11/14, at 6; see N.T., 4/30/14, at 41-42.
As the trial court is the sole arbiter of the credibility of witnesses, we are
unable to find that the trial court abused its discretion. See Busse v.
Busse, 921 A.2d 1248, 1255 (Pa. Super. 2007) (“The fact-finder is in the
best position to assess credibility of witnesses and we do not disturb
credibility determinations on appeal.”).
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Next, despite Mother’s assertion that the trial court’s statement that
Father found a school system equipped to address the Child’s needs “is in
opposition to the [n]otes of [t]estimony[,]” Mother’s Brief at 18, we
conclude that the record supports the trial court’s conclusion that Perkiomen
is equipped to address the Child’s needs. The record reflects that Perkiomen
has a “Wilson Program which is specific for reading,” and has “a variety of
options within the district if a more or less intensive program is warranted.”
N.T., 4/30/14, at 52-53. Mother presented no evidence to contradict the
trial court’s finding on this issue. The trial court also reviewed a packet of
information presented by Father regarding the offerings Perkiomen had for
the Child’s education, as well as a packet submitted by Mother regarding the
Child’s current school district. As our standard of review provides, it is not
this Court’s role to make independent factual determinations or disturb the
trial court’s determinations that are supported by the record. See D.K.,
2014 WL 4923111, at *11.
The trial court also properly considered the Child’s preference in
reaching its decision. “The Pennsylvania Domestic Relations Code,
23 Pa.C.S.A. § 101, et seq., is clear that a trial court is required to consider
a child’s preference before entering an award of partial custody[.]”
Gianvito v. Gianvito, 975 A.2d 1164, 1170 (Pa. Super. 2009);
23 Pa.C.S.A. § 5303(a)(1).
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Although the express wishes of a child are not
controlling in custody decisions, such wishes do
constitute an important factor that must be carefully
considered in determining the child’s best interest.
The weight to be attributed to a child’s testimony can
best be determined by the judge before whom the
child appears. The child’s preference must be based
upon good reasons and his or her maturity and
intelligence must also be considered.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1239 (Pa. Super. 2009) (citing
Masser v. Miller, 913 A.2d 912, 920 (Pa. Super. 2006)).
The record reflects that the trial court interviewed the Child, who was
eleven years old, and “found him to be a competent witness.” Trial Court
Opinion, 7/11/14, at 8. The Child expressly stated that he wished to live
with Father because he did not get to see him enough and really missed
him. Id.
In McMillen v. McMillen, 602 A.2d 845 (Pa. 1992), our Supreme
Court upheld the trial court’s determination that a child’s best interest would
be served by placing him in the custody of his father based on the child’s
stated preference. Id. at 848.
Having reviewed the previous custody orders in this
case, the trial court concluded that both the home of
the mother and that of the father were equally
acceptable. The trial court, therefore, was forced to
look at other factors in making its decision. The only
testimony taken at the most recent custody hearing
was that of the child, Emmett, who was then almost
11 years old. Emmett testified that he preferred to
live with his father.
***
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The record supports the trial court’s finding that both
households were equally suitable. This being so,
Emmett’s expressed preference to live with his father
could not but tip the evidentiary scale in favor of his
father. Thus, the trial court’s conclusion that it
would be in Emmett’s best interest to modify the
prior custody order by transferring primary custody
from the mother to the father is supported by the
record, and we find no gross abuse of discretion by
the trial court in awarding primary custody to the
father.
Id. at 847-48.
Similar to McMillen, in this case, the record reflects that the trial
court determined that Mother and Father were equally capable of providing
for the Child, but found particularly important the Child’s expressed
preference to live with Father. Thus, as in McMillen, we find no error in the
trial court’s determination as the Child’s preference ultimately “tip[ped] the
evidentiary scale in favor of [] [F]ather.” See id. at 848.
Following our review of the record, we conclude that the trial court’s
decision to award physical custody to Father after the 2014-2015 school
year is supported by the record. Accordingly, the trial court did not abuse
its discretion. Mother is not entitled to relief on her first issue.
For her second issue on appeal, Mother argues that the lower court
committed an abuse of discretion by entering a custody order one year and
five months prior to the order taking effect. Mother’s Brief at 19. Mother
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contends that the matter is not ripe for consideration because it “fails to take
into account the circumstances at the time of the hearing.” Id. at 20.
We note that Mother’s discussion of this issue is one paragraph and
that she does not develop her argument in support of her assertion that the
matter was not ripe for the trial court’s consideration. The argument portion
of Mother’s brief contains one citation to Hartman v. Hartman, 476 A.2d
938 (Pa. Super. 1984), which states that courts must “look at the parties’
circumstances existing at the time of the hearing.” Id. at 941 (quoting In
re Leskovich, 385 A.2d at 377). Mother also provides one conclusory
statement that “[t]o project what will happen when the [C]hild is in seventh
grade, almost two years after the entry of the said order, fails to take into
account the circumstances at the time of the hearing and rules on a matter
that is not ripe for consideration.” Mother’s Brief at 19-20.
Under Rule of Appellate Procedure 2119(a), the argument section of
an appellate brief must provide “discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). As Mother fails to develop
meaningful argument on this issue, we conclude that Mother’s claim is
waived, as it is wholly inadequate to present an issue for our review. See
Butler v. Illes, 747 A.2d 943, 944 (Pa. Super. 2000) (“When issues are not
properly raised and developed in briefs, when briefs are wholly inadequate to
present specific issues for review, a court will not consider the merits
thereof.”).
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Even if Mother had not waived the issue, we would conclude that
Mother’s claim is without merit. Our review of the record reveals that,
contrary to Mother’s assertion, the trial court did “take into account the
circumstances at the time of the hearing,” and issued its determination
based on those considerations. The trial court determined, based on the
Child’s progress at the school as well as the positive relationship the Child
had with his special education teacher, that he should remain at Holmes
until the end of the 2014-2015 school year. Trial Court Opinion, 7/11/14, at
13. The trial court further found that because the Child could only attend
Holmes through the sixth grade, the Child would have to transfer schools
after the 2014-2015 school year, and the evidence presented revealed that
the Child’s best interests would be served by thereafter attending Perkiomen
and living primarily with Father. Id. Accordingly, Mother’s second issue on
appeal is without merit.
For her third and fourth issues, Mother argues that the trial court
committed an abuse of discretion when it ordered that the Child shall attend
Perkiomen School beginning in the 2015-2016 year. Mother’s Brief at 20-
21. Mother first argues that the trial court committed an abuse of discretion
when it entered this order without determining how it serves the best
interest of the Child pursuant to section 5328. Id. at 20.
The trial court “maintains that it was not required to consider the
statutory factors under 23 Pa.C.S.[A.] § 5328(a) in deciding which school
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[the Child] should attend as it was not an award of custody.” Trial Court
Opinion, 7/11/14, at 12. The trial court cites to M.O. v. J.T.R., 85 A.3d
1058 (Pa. Super. 2014), wherein this Court held that where a trial court
“merely modifie[s] a discrete custody-related issue, it [is] not bound to
address the sixteen [sic] statutory factors in determining the Children’s best
interest. However, under Section 5338, the trial court [is] required to
determine that the modification that it did order was in the Children’s best
interest.” Id. at 1063.
In another recent decision, this Court further addressed this issue,
stating:
It also is true that resolution of an otherwise
ancillary matter may affect a form of custody and
require consideration of the § 5328(a) factors. For
instance, the choice of a child’s school may factor
into a trial court’s decision to award a form of
custody when the trial court is addressing a request
to establish or change legal or physical custody in
connection with the choice of school. One parent in
a custody dispute may argue that he or she is
entitled to primary physical custody because his or
her residence has much better schools. On the other
hand, many times – like here – these items may
appear as independent, discrete issues advanced by
motion or petition that does not require a change in
the form of custody. Although any decision requires
consideration of the child’s best interest, only the
former situation requires consideration and
application of the § 5328(a) factors.
S.W.D. v. S.A.R., 96 A.3d 396, 403 (Pa. Super. 2014).
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Unlike S.W.D., the issue of what school the Child should attend is not
an “independent, discrete issue” in this case. Instead, the determination of
which school the Child attends simultaneously determines which parent
receives physical custody, as the two potential schools are located an hour
from each other, with Perkiomen being nearer to Father’s residence. In this
instance, the decision that the Child should attend Perkiomen required a
change in the award of physical custody from Mother to Father. As the trial
court’s order modified the custody order, it was required to consider the
statutory factors under section 5328(a).
As we determined at the outset of this memorandum, however, the
trial court considered the statutory custody factors under section 5328 and
provided its analysis with respect to those factors. Furthermore, we have
already concluded that the trial court considered the evidence presented by
the parties and properly concluded that the modification of the custody order
and the change in the Child’s school placement for the 2015-2016 school
year served the Child’s best interest. Thus, these arguments are without
merit.
For her fifth and final issue on appeal, Mother asserts that the lower
court committed an abuse of discretion by failing to examine Father’s current
household members pursuant to 23 Pa.C.S.A. §§ 53293 and 5329.14.
3
Section 5329 provides, in relevant part:
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Mother’s Brief at 22. The trial court argues that Mother waived this issue,
stating:
During the hearing on April 30, 2014, no evidence
was presented to indicate that Father or any of his
household members had been convicted of or had
pled guilty to any enumerated offense or that any
substantiated child abuse reports existed. In fact,
counsel for Mother failed to address the issue
altogether.
Trial Court Opinion, 7/11/14, at 15.
Where a party seeks any form of custody, the court
shall consider whether that party or member of that
party’s household has been convicted of or has
pleaded guilty to or no contest to any of the offenses
in this section or an offense in another jurisdiction
substantially equivalent to any of the offenses in this
section. The court shall consider such conduct and
determine that the party does not pose a threat of
harm to the child before making any order of custody
to that parent[.]
23 Pa.C.S.A. § 5329.
4
Section 5329.1 provides, in relevant part:
[W]here a party seeks any form of custody subject
to the examination of the parties, the court shall
determine:
***
(1)(ii) Whether a party or a member of the
party’s household has been identified as the
perpetrator in an indicated or founded report of
child abuse.
23 Pa.C.S.A. § 5329.1.
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Rule 302(a) of the Pennsylvania Rules of Appellate Procedure states
that “[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). As Mother failed to raise this
issue at trial, this issue is waived.
Order affirmed.
Bender, P.J.E. joins the Memorandum.
Strassburger, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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