K.S. v. N.S.V. ( 2021 )

J-A06016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
N.(S.)V. : No. 1062 WDA 2020
Appeal from the Order Entered September 11, 2020
In the Court of Common Pleas of Blair County Civil Division at No(s):
No. 2014 GN 2400
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 4, 2021
K.S. (“Father”) appeals from the order, entered in the Court of Common
Pleas of Blair County, denying his petition to modify a custody order and
granting N.(S.)V. (“Mother”) sole legal custody with respect to decision-
making for their minor child, S.S. (“Child”). Upon careful review, we vacate
and remand the case to the trial court to amend the order in accordance with
the dictates of this memorandum.
Father and Mother are the parents of two children, E.S., now an adult,
and Child, who is 16 years of age and the subject of these proceedings. The
parties were married on July 31, 1999, and separated on August 20, 2014.
Their divorce became final on February 28, 2018. By order dated August 4,
2015, Father was awarded primary physical custody of both children, with
Mother receiving partial custody. After Mother moved to modify the custody
arrangement, the court awarded shared (50/50) legal and physical custody to
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the parties on January 31, 2018. Shortly thereafter, on August 28, 2018,
Father filed the instant petition to modify, again seeking primary custody of
both children.1 Three hearings were held. The first two hearings were
conducted by the Honorable Daniel J. Milliron, who subsequently recused
himself after Mother contacted President Judge Elizabeth A. Doyle with
concerns regarding perceived bias on Judge Milliron’s part. The case was
reassigned to the Honorable Hiram A. Carpenter, III, who presided over the
third and final hearing. On September 11, 2020, Judge Carpenter entered an
order, with accompanying opinion, denying Father’s motion, maintaining the
50/50 physical custody arrangement, and granting Mother sole legal custody
of Child with regard to decision-making. This timely appeal ensued, in which
Father raises the following issues for our consideration:
1. Did the trial court err and/or abuse its discretion in failing to
grant primary physical custody of [Child] to [Father] under all
the facts and circumstances of this case and the law applicable
thereto?
2. Did the trial court err and/or abuse its discretion in awarding
to [Mother] sole legal custody for decision[-]making for [Child]
under all of the facts and circumstances of this case and the
law applicable thereto?
3. Did the trial court err and/or abuse its discretion in failing to
address other important aspects of legal custody[,] including,
without limitation, access to educational and medical providers
and records, and the right to be advised of emergency
situations?
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1 In the intervening period between the filing of the motion to modify and the
court’s decision, E.S. attained her majority.
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4. Did the trial court err and/or abuse its discretion in failing to
include in its order necessary and appropriate custody
provisions that were contained in the prior custody order in this
case?
Brief of Appellant, at 7-8 (unnecessary capitalization omitted).
Our well-settled scope and standard of review are 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., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
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) (internal
citations omitted).
Finally,
[t]he parties cannot dictate the amount of weight the trial court
places on the evidence. Rather, the paramount concern of the
trial court is the best interest of the child. Appellate interference
is unwarranted if the trial court’s consideration of the best interest
of the child was careful and thorough, and we are unable to find
any abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009).
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We will address Father’s first two claims together. Father alleges that
the trial court erred in failing to grant him primary physical custody and in
granting Mother sole legal custody of Child with respect to decision-making.
Father alleges that Child thrived while in his primary custody between August
2014 and January 2018, but Child’s academic performance and extracurricular
participation have deteriorated since the court instituted the shared custody
arrangement. Father alleges that Mother’s statements and actions caused his
relationship with E.S. to deteriorate to the point that they currently have no
relationship, and he wishes to prevent a similar deterioration in his
relationship with Child. Father asserts that Mother’s parenting skills are too
permissive and that she has allowed Child to make decisions regarding his
academics and extracurricular activities that are not in Child’s best interests.
Father claims that he is the only parent who attends Child’s school and
extracurricular activities, parent/teacher conferences, and awards
ceremonies. Father ensures that school assignments are completed, monitors
Child’s grades, and communicates with Child’s teachers.
Mother, who filed her appellate brief pro se, counters that “any decline
in [Child’s] grades is more likely because of his being a teenager, the course
work getting more difficult (Father forcing him into honors classes that he
didn’t want to take and against teacher’s recommendation) and considering
the four baseball leagues, ERA [baseball program] and [Boy] Scouts that
[Child] was involved in, that he did not have adequate time to study.” Brief
of Appellee, at 9. Mother argues that she is very supportive of Child and his
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education and activities and that Father attempts to “dictate or control what
[Child’s] interests or activities should be[.]” Id. at 10. Mother asserts that
“it is Father’s own actions that have caused the deterioration of his relationship
with [E.S.]” and that she “tried to warn Father on several occasions that his
behavior was affecting the children.” Id. at 7.
In child custody cases, the paramount concern “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).
Section 5328(a) of the Child Custody Act sets forth the best interest factors
that the trial court must consider in awarding custody:
§ 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) (relating
to consideration of child abuse and involvement with
protective services).
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(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.
(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.A. § 5328(a) (1-16).
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We begin by noting that the relationship between Father and Mother has
been, and continues to be, a contentious one. As the parties acknowledge,
they have very different parenting styles—Father focuses on achievement
and, in doing so, may tend to push Child into things he might not be interested
in doing, whereas Mother has a more laid-back parenting style, placing greater
importance on her children’s happiness. It is this clash in parenting styles
that led to Father filing the instant petition for modification, based on his belief
that Mother’s more laissez faire attitude has led to a decline both in Child’s
academic performance and his interest in extracurricular activities. The trial
court was placed in the difficult position of reconciling the effect of these
disparate personalities on Child’s academic and personal development and
fashioning an order that would serve his best interests going forward.
To that end, the trial court addressed each of the custody factors. The
court concluded that factors one (parent more likely to encourage contact with
other party), three (parental duties performed by each party), four (need for
stability and continuity in child’s life), five (availability of extended family), six
(child’s sibling relationships), seven (well-reasoned preference of child),
eleven (proximity of parties’ residences), twelve (parents’ ability to care for
child), fourteen (history of drug/alcohol abuse by parties), and fifteen
(mental/physical condition of parties) were either non-issues or weighed
equally with respect to both parents. See Trial Court Opinion, 9/11/20, at 13,
16-20, 32-33.
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The court focused its analysis most heavily on factor eight (attempts of
a parent to turn child against other parent), deeming it “by far the most
important consideration in this case.” See id. at 20. In its discussion of this
factor, the court rejected Father’s contention that his “wonderful relationship
. . . with his two children was destroyed by [M]other’s actions within a short
period of time after they were placed in the 50/50 custody arrangement.” Id.
at 22. Rather, the court concluded—based on the extensive testimony in this
matter—that the recent difficulties experienced by Father in his relationship
with his daughter, as well as Child’s current attempts to assert his own
independence, were caused by Father’s own controlling behaviors. 2 See id.
at 23. The court observed:
[F]ather has what seems at first blush to be a wonderful strength
in terms of his willingness to [be] involve[d] with his children in
their activities. If that w[ere] all we were talking about, it is an
involvement that any parent could be justifiably proud to claim.
However, the weakness in [F]ather’s approach is reflected again
and again throughout the record. It is the reality that the children
never get to make any decisions on their own. Worse, they cannot
experiment with an activity, decide they do not like it any longer,
and withdraw. . . . Thus, the admirable quality of parental
involvement and encouragement becomes [a case of F]ather
exhibiting dominance not only in picking their activities but not
letting them out of them when they change their mind[s] or grow
in a new way. It is clear from [E.S.’s] behavior and what we are
now seeing in [Child] that these children are unable to
____________________________________________
2 The court essentially incorporates by reference its discussion of factor eight
into its findings with regard to factor two (present and past abuse committed
by a party), noting that Mother had characterized Father’s behavior towards
E.S. as “abusive” and that Mother believes that “some of the same complaints
she heard from [E.S.] leading to [E.S.’s] estrangement from [F]ather are now
beginning to surface with [Child].” Trial Court Opinion, 9/11/20, at 15.
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communicate this frustration to [F]ather. Once the shared
custody came into effect, however, the children soon saw [their
M]other as empowered and (increasingly) rebelled. It is that
simple and so obvious that no other conclusion is reasonably
possible. . . .
[F]ather has had too much control for too long. It is beyond
obsessive. There comes a time when children have to make their
own decisions about their activities and cannot be the subject of
total parental control. They actually need this opportunity, while
[F]ather has insisted that they remain children subject to his
dictating what they will be doing.
Id. at 24, 25-26 (emphasis in original). The court concluded that factor eight
favored Mother.
Similarly, the court concluded that factor nine (party more likely to
maintain loving, stable, consistent, and nurturing relationship with child)
favored Mother. The court observed that, “given what has happened, nothing
is more important at this juncture than [Child] learning to make some of his
own decisions,” which will “never happen with [F]ather as primary care parent
if he maintains his present attitude[.]” Id. at 30-31. The court concluded
that, while Father’s “never quit” philosophy may result in a “stable
relationship, it is far from the consistent and nurturing relationship which
meets [C]hild’s emotional needs. In fact, it seems to meet [F]ather’s needs.”
Id. at 31.
Likewise, the court weighed factor ten (party more likely to attend to
physical, emotional, developmental, educational, and special needs of child)
in favor of Mother. The court observed that “[F]ather’s approach with [Child],
when he was much younger, may have been successful, . . . [however, Child]
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needs to be empowered to make some decisions ([] even some [F]ather does
not like) in the interest of his total development.” Id.
Finally, the court found factor thirteen (level of conflict and
willingness/ability of parties to cooperate) also favored Mother. The court
acknowledged that “this is a high conflict case” and “there is a tremendous
problem with communication between the parents.” Id. at 32. However, the
court once again concluded that Father’s controlling behaviors bled over into
his ability to communicate not only with Mother, but with his children.
We note that Judge Carpenter is not the first jurist involved in this case
to express concern over Father’s behavior and its effect upon his relationship
with his children. As far back as 2015, Judge Milliron—despite awarding
primary physical custody to Father based largely on his ability to provide
stability—observed that:
Father’s pattern of behavior [] has expressly attempted to alienate
both children from Mother. . . . Father’s conduct in response to
his [w]ife’s departure has been to exercise every opportunity to
punish Mother for this decision. While Mother’s feelings for her
[h]usband and marriage have evolved, her love for her children
has not. Father understands this tight emotional maternal bond
continues and has exercised significant effort to “punish” Mother
in this area. There have been numerous opportunities for Father
to promote or encourage a positive relationship between his
children and their Mother. Instead, Father has allowed his own
interests of punishing Mother to prevail. . . . This [c]ourt is
convinced that if Father does not change his negative conduct
towards Mother, then as the children mature, they themselves will
recognize the detrimental impact of their Father’s behavior.
Trial Court Opinion, 7/28/15, at 6, 7-8, 14.
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We have reviewed the extensive transcripts of testimony in this case
and conclude that Judge Carpenter’s findings in support of his decision to deny
Father’s request for primary physical custody, and to grant Mother sole legal
custody regarding decision-making, are supported in the record. C.R.F., III,
supra. It is clear that Child is now at an age where he must be empowered
to make some of his own decisions, where appropriate, and to take some level
of responsibility for his own destiny. This will not occur in a situation where
he is under the thumb of a parent who—even with the best of intentions—
seeks to control his choices at every turn. Accordingly, we find the court’s
decision to award Mother sole custody “regarding decision[-]making”
appropriate.
However, as Father correctly notes in his final two claims on appeal, the
trial court’s custody order is silent as to other aspects of legal custody
addressed in prior orders, including access to medical, dental, religious, and
school records, addresses, and other vital information concerning Child’s
welfare. See 23 Pa.C.S.A. § 5336(a)(1). Moreover, given the historically
contentious nature of the parties’ relationship and their continuing inability to
successfully communicate, the omission of certain provisions included in the
January 31, 2018 order3 is concerning. Accordingly, we are compelled to
____________________________________________
3 Because the trial court’s September 11, 2020 order rescinded all previous
orders and did not, either explicitly or by reference, incorporate the following
provisions, they are no longer in effect:
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____________________________________________
6. The [Child] shall attend the Hollidaysburg Area School District
unless the parents mutually agree otherwise.
...
8. Each party shall keep the other informed of their current
address and phone number.
...
11. The parties shall not argue or engage in heated discussion in
the presence of [Child].
12. Neither party shall engage in any conduct which presents to
the [Child] a negative or hostile view of the other nor shall they
allow any third party to do or say anything that would impair the
natural love and respect of the [Child] for either party.
13. Each parent shall encourage the [Child] to comply with this
parenting agreement and foster in [Child] a positive view of the
other.
14. The party who has physical custody of the [Child] should
encourage, prepare[,] and have [Child] available at the
designated times and places so visitations can occur smoothly.
Likewise, the party exercising partial custody or visitation rights
should encourage, prepare[,] and return [Child] promptly at the
designated times and places.
15. THE PARTIES MAY DECIDE DIFFERENT TIME ARRANGEMENTS
AND MAKE DECISIONS FOR [CHILD] WHENEVER THEY MUTUALLY
AGREE TO DO SO. NOTHING IN THIS ORDER IS UNDERSTOOD
TO RESTRICT THE ABILITY OF THE PARTIES TO MUTUALLY AGREE
ON ALTERNATIVE PARENTING ARRANGEMENTS. IF FOR ANY
REASON THE PARTIES CANNOT AGREE, THE TERMS OF THE
CONSENT AGREEMENT WILL BE FOLLOWED.
...
17. VIOLATION OF THIS ORDER BY ANY PERSON MAY RESULT IN
CIVIL AND CRIMINAL PENALTIES, INCLUDING PROSECUTION
PURSUANT TO SECTION 2904 OF THE PENNSYLVANIA CRIMES
CODE, INTERFERENCE WITH CUSTODY OF CHILDREN.
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remand this matter to the trial court for the entry of an order clarifying
Father’s right to the information referenced above and including, as the court
deems necessary, the language referenced in footnote 3 hereof.
Order vacated; case remanded with instructions to amend in accordance
with the dictates of this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/04/2021
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18. Jurisdiction of [Child] shall remain with the Court of Common
Pleas of Blair County, Pennsylvania, unless jurisdiction would
change under the Uniform Child Custody Jurisdiction Act.
19. NOTICE OF OBLIGATIONS BEFORE YOU RELOCATE: No party
shall relocate with [Child] unless every individual who has custody
rights consents to the proposed relocation, or the court approves
the relocation. Any party who desires to relocate with [Child] shall
first notify every other individual who has custody rights. The
party who desires to relocate with [Child] must also comply with
23 Pa.C.S. [§] 5337 et seq. (A copy of this statute is available in
the Blair County Custody Office.)
Trial Court Order, 1/31/18, at 15-16 (capitalization in original).
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