Ebersole, C. v. Metzgar, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COREY EBERSOLE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUZANNA METZGAR :
:
Appellant : No. 63 WDA 2021
Appeal from the Order Dated December 10, 2020
In the Court of Common Pleas of Butler County Domestic Relations at
No(s): F.C. No. 20-90063-C
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 28, 2021
Suzanna Metzgar (Mother) appeals from the order, entered in the Court
of Common Pleas of Butler County, granting the parties shared legal custody
of S.A.E. (Child) (born 6/14), granting Corey Ebersole (Father) primary
physical custody during the school year, granting Mother partial physical
custody during the school year (every other weekend), and granting the
parties shared physical custody during the summer. After our review, we
affirm.
Mother and Father had a two-year relationship, during which Child was
born. The relationship ended in September of 2015. At that time, Child was
approximately fifteen months old. Child has been diagnosed with cerebral
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* Retired Senior Judge assigned to the Superior Court.
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palsy, asthma, hypotonia,1 and has had multiple types of seizures. Child also
suffers from developmental, physical, and cognitive delays.
On October 1, 2015, Father filed a custody complaint and requested
shared custody. The parties attended custody conciliation on November 5,
2015; on December 29, 2015, the parties entered into a temporary shared
custody arrangement, which the court entered as an interim order. See
Consent Order, 12/29/15. Pursuant to that order, the parties shared physical
custody of Child on a four-week rotating schedule. The first four weeks Father
had custody every weekend (Friday to Monday); the second four weeks Father
had custody Friday to Monday on week 1, Friday to Tuesday on week 2, Friday
to Monday on week 3, and Friday to Tuesday on week 4. The parties shared
legal custody of Child.
The court held a custody hearing on April 27, 2016. On May 16, 2016,
the court entered a final order granting Mother and Father shared legal
custody of Child and granting Mother primary physical custody of Child subject
to Father’s partial custody rights, as follows:
a. Father shall have physical custody of the first, third,
fourth and fifth weekends of a five-week cycle, from
Friday at 5:00 p.m. until Monday at a mutually agreeable
time. On the second weekend, Father shall have custody
from 5:00 p.m. Friday until 5:00 p.m. Saturday. The first
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1 Hypotonia is a medical term used to describe decreased muscle tone and
strength, a common finding with cerebral palsy and other neuromuscular
disorders. https://www.ninds.nih.gov/Disorders/All-Disorders/Hypotonia-
Information-Page (last visited 6/9/21).
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five-week cycle shall commence on the first Friday
following the entry of this custody order.
b. Father also shall be entitled to two additional five-day
periods of custody during the year, of [] which he shall
notify Mother at least 60 days in advance. During these
periods, Father shall ensure that [Child] attends any
regularly scheduled therapy.
Order, 5/16/16.2 The order also provided for shared physical custody on
holidays on an alternating schedule. Id.
On February 10, 2020, Father filed a petition to modify custody. In his
petition, Father sought primary physical custody of Child, who was now of
school age, stating that change of custody would be in Child’s best interests,
that “Father can, has and will continue to furnish [C]hild with a suitable and
proper environment[,]” and that “Father can, has and will provide [C]hild with
love, affection, care, treatment, and all other necessary parental duties and
obligations which the [C]hild needs and deserves.” Petition for Modification of
Custody, 1/7/20, at 2. Father also cited “Mother’s unwillingness to co-parent
with Father.”3 Id.
Mother filed a counter petition for modification, seeking primary physical
custody of Child and primary legal custody with respect to medical decision-
making. See Counter Petition for Modification, 3/18/20, at 3. Mother also
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2 The order, entered by the Honorable James J. Panchik, set forth a
comprehensive analysis of the statutory custody factors, 23 Pa.C.S.A. §
5328(a)(1)-(16), pursuant to the Child Custody Act, 23 Pa.C.S.A. §§ 5328–
5340.
3 We note the May 2016 order did not require the parties to attend co-
parenting counseling.
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cited “Father’s unwillingness to co-parent with Mother and properly care for
[C]hild during his periods of physical custody.” Id.
On November 9, 2020, a custody trial was held before the Honorable
Kelley T.D. Streib. At trial, Father, Father’s fiancée, Mother, and Mother’s
sister testified. On December 10, 2020, Judge Streib issued findings of fact,
analyzed the statutory custody factors, and entered the order granting the
parties shared legal custody, granting Father primary physical custody of Child
during the school year, granting Mother partial physical custody during the
school year (every other weekend and every weekend if she can adjust her
work schedule), and granting the parties shared physical custody in the
summer. The court also ordered the parties to engage in co-parenting
counseling. See Order, 12/10/20.
Mother filed a timely appeal on January 8, 2021. Both Mother and the
trial court have complied with Pa.R.A.P. 1925.
Mother raises the following issues on appeal:
1. Did the trial court commit an abuse of discretion and/or error
of law when it ordered that Father should have primary custody
of the minor Child[,] vastly reducing Mother’s custody time with
[] Child?
2. Did the trial court commit an abuse of discretion and/or an
error of law when it ordered Mother should have partial custody
of the Child on an every other weekend basis, ignoring Mother’s
contracted work schedule that provides she must work every
weekend, thus causing Mother extraordinarily limited time with
the minor Child?
3. Did the trial court commit an abuse of discretion and/or an
error of law when it ordered that Father should have primary
custody of the minor Child focusing on the distance between the
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parties’ residences as reason for change from Mother having
primary custody of the minor Child to Father having primary
custody of the minor Child instead of a less drastic change in
custody, such as a 50/50 arrangement?
4. Did the trial court commit an abuse of discretion and/or an
error of law when it ordered that Father have primary custody of
the minor Child, but failed to discuss and/or consider the possible
effect on the Child such a drastic change in custody may have?
5. Did the trial court commit an abuse of discretion and/or an
error of law when it determined that “[b]oth parties have available
childcare and the ability to make childcare arrangements.
However, Father has [the] full time support of his fiancé[,]” when
Mother provides the childcare for the minor Child during the week,
making her childcare arrangements a nonissue?
Appellant’s Brief, at 8-9.
We address Mother’s claims together. Our scope and standard of review
is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
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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). Further,
The 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).
Mother argues the court erred in basing the change in custody “on the
conflict between the parties, the distance between the parties’ residences, and
the parties’ respective childcare availability.” Appellant’s Brief, at 12. Mother
claims the evidence did not justify changing custody, particularly where
Mother had primary custody for the Child’s first six years. Id. Mother also
argues that the evidence did not support a “drastic change in custody” and
was not in Child’s best interest. Id. See 23 Pa.C.S.A. § 5328(a) (factors to
consider when awarding custody).
Prior to the termination of their relationship, Mother and Father resided
together in Freeport, Armstrong County. They now reside approximately 34
miles from one another; Father lives in in Pittsburgh, Allegheny County, and
Mother lives in the Sarver area of Butler County. Both parties reside with their
respective fiancés.
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At the time of trial, Child was enrolled in kindergarten at Buffalo
Elementary School in the Freeport Area School District in Butler County (50%
remote for the 2020-21 school year), and the school was preparing an
Individualized Education Program (IEP) for him. Child receives physical and
occupational therapy at school.
Father is employed as an analyst at FedEx Ground. He usually works
from 7:00 a.m. until 3:00 p.m.; his schedule is flexible, and he can work from
home. Father’s fiancée is a teacher in the South Fayette School District; she
is bonded to Child and is available to pick Child up from school. See Findings
of Fact, 12/10/20, at 2.
Mother is a registered nurse in the cardiac intensive care unit at UPMC
Presbyterian Hospital in Pittsburgh. Mother’s work schedule varies, but she
works extended weekend shifts when she does not have custody of Child. The
trial court found Mother “was not credible in her assertion that there were no
work opportunities available for weekday shifts.” Id. at 3.
The paramount concern in any custody case under the Child Custody
Act is the best interests of the child. C.G. v. J.H., 193 A.3d 891, 909 (Pa.
2018. In ordering any form of custody, the court shall determine the best
interest of the child by considering all relevant factors. See 23 Pa.C.S.A. §§
5328, 5338. Section 5328(a) sets forth the factors that the trial court must
consider in awarding custody:
§ 5328. Factors to consider when awarding custody
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(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) (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.
(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.
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(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).
In its opinion in support of its order, the trial court carefully analyzed
and addressed each factor pursuant to section 5328(a) and the Child’s best
interests as follows:
(1) Father is more likely to encourage contact between Mother and
Child; Mother used COVID-19 pandemic as a means to thwart
Father’s parenting time; Mother attempts to micromanage
Father’s parenting time and exclude him from Child’s medical
appointments;
(2) and (2.1) Inapplicable; no evidence of abuse;
(3) Neutral; each parent performs parental duties
(4) Father’s home life historically more stable (court pointed to
Mother’s prior relationships).
(5) Mother has ample extended family available in the area;
(6) Inapplicable; Child has no siblings;
(7) Neutral; parties agreed Child was unable to give a well-reasoned
preference due to his age, maturity, and special needs.
(8) Father is less likely to turn Child against Mother; Mother makes
subtle attempts to undermine Father’s parenting and to affect
Child’s opinion of Father;
(9) Neutral; both Mother and Father maintain a loving relationship
with Child;
(10) Neutral; both parties attend to Child’s physical, emotional,
developmental, educational, and special needs;
(11) Neutral; court noted this is a major issue because, but for the
distance between Mother’s and Father’s residences, a shared
custody arrangement would be appropriate and in Child’s best
interest;
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(12) Neutral; both parties have available childcare and the ability to
make childcare arrangements;
(13) Father is more willing to co-parent with Mother;
(14) Inapplicable; no evidence of drug or alcohol abuse;
(15) Inapplicable; neither party has physical or mental limitations;
(16) With respect to Child’s special needs, court favored Father’s
approach to meeting Child’s special needs and at the same time
letting him be a child; court noted Mother is overprotective;
Father’s residence is closer to Children’s Hospital and many of his
medical providers.
See Trial Court Opinion, 12/10/20, at 2-5.
A few issues exacerbate this custody dispute. First, although Child is
doing well and progressing, it is clear Mother and Father have different
parenting approaches. Both have good intentions and want what is best for
Child, but Mother is overprotective4–which is understandable with a special
needs Child–and Father cannot seem to meet Mother’s standards of care or
protection. As an example, Father testified at trial that he bought Child a
bicycle with training wheels and Child was riding it well. Father stated:
A: Shannon (Father’s fiancée) and I both were impressed with his
ability to be able to ride the bike at the local park. I mean, he
was smiling from ear to ear. He loved it. He was ecstatic. And
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4 At the start of the COVID-19 pandemic, Mother, an ICU nurse, filed an
emergency motion for special relief seeking to preclude Father from his
custody time. In her petition, Mother expressed “extreme concerns with
regard to the child being transported between the residences during the
COVID-19 pandemic as the child suffers from multiple physiological conditions
that would make him more susceptible to the virus if he were to be exposed
to the same.” Mother’s Emergency Petition for Special Relief, 3/19/20, at ¶
4. Judge Streib denied this petition. See Order, 3/19/20. Thereafter, Mother
was exposed to the virus, was tested, and was required to quarantine for 14
days, at which point Father kept Child for the quarantine period. Despite
Mother working as a front-line health care professional during the pandemic,
Father did not seek to preclude Mother from her custody time. See N.T.
Custody Trial, supra at 60.
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then he went back to [Mother’s] for the week, and I don’t know
what happened. He came back and we tried to get him to ride the
bike again, and he was scared. He was scared. You know, I really
feel that [Mother] alienated his opinion and destroyed his
confidence on the bike. I mean, he does have an adaptive Rifton
bike at her place, or essentially a three-wheeler or a trike. It’s
much easier to pedal. But I feel with continued practice and
confidence, we would have been able to take those training
wheels off his bike eventually. I mean, I still have it. It’s
something that, you know, I would like to revisit again down the
road with him.
Q: So, had [Mother] said things to you directly about [Child’s]
use of the pedal bike at your house?
A: She did. She didn’t feel it was safe. And I felt he had– I mean,
I learned how to ride a bike as a kid. [] I got cuts, bruises, cuts
and scrapes. You know, he fell off his bike. And I feel that [Mother]
just beat it into [Child’s] brain that it’s not safe; [“]I don’t want
you to ride that.[”]
Q: Is it fair to say that her expression of disagreement with his
use of the bike, to you, and [Child’s] fear of the bike happened
somehow contemporaneously?
A: Yes.
Q: Is that why you believe that she influenced [Child] to not want
to ride the bike anymore?
A: She did. Yeah. [Mother’s] opinion is– you know, weighs heavily
on [Child].
N.T. Custody Trial, 11/9/20, at 52-53 (emphasis added).
Second, Mother’s hostility has been documented and acknowledged by
the court in the May 2016 order. Judge Panchik, who entered the May 2016
custody order, stated the following in his section 5328(a) analysis:
[T]here is a clear indication in the written communications
between the parties that Mother at times will use [Child] as a way
to get back at Father and his family members [] if she is angry. []
Although it is clear that Mother provides well for [Child] and takes
a significant interest in his health and well-being, it also is clear
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to the [c]ourt from the evidence presented that she is the source
of the vast majority of the conflict between the parties. Mother
routinely uses insults, threats, profanity, and harassing and
belligerent language in her communications with Father. [] To the
extent that the parties’ conflict could inhibit their ability to
co-parent, communicate, cooperate, and share parenting
responsibilities, the [c]ourt finds that Mother’s vindictive
and retributive manner is the primary cause of such
conflict.
See Memorandum, 5/16/16, at 6, 9-10 (emphasis added). In her custody
analysis for the current order, Judge Streib stated that “[d]uring the custody
trial, Mother showed visible animosity when discussing Father.” Findings of
Fact, 12/10/20, at 4. The conflict may not have been damaging to Child when
he was an infant, but that is no longer the case.
Finally, Child is of school age now. Given the distance between the
parties’ residences, Mother’s suggestion of a 50/50 custody schedule is simply
not practical during the school year. Mother does argue, however, that since
she only works on weekends and is available during the week to get Child to
school and back (or on the bus and off the bus), the custody order ignores her
work schedule (12-hour weekend shifts/24 hours per week) and results in
“extraordinarily limited time with [Child].” Appellant’s Brief, at 20. Mother
testified that: she only works weekends; her weekend shift work is considered
full-time; at present there are no full-time weekday shifts available; and if she
were to switch to a weekday schedule, she would take a cut in pay. See N.T.
Custody Trial, supra at 136-37. If Mother works 12-hour shifts every
weekend, the custody order essentially precludes her from custodial time
unless she changes her work schedule to weekday work.
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Although we would be inclined to agree with Mother’s argument on this
point, Judge Streib specifically found Mother’s testimony with respect to her
work schedule not credible. See Findings of Fact, supra at 3. Notably,
despite testifying that weekday hours were not available, see N.T. Custody
Trial, supra at 136, she subsequently testified that she had not looked into it.
See N.T. Custody Trial, supra at 137 (“Q: So have you looked into whether
you could get more hours by working during the week? A: No.”). In fact,
Judge Streib found that Mother’s testimony as to her work schedule “was
defensive and shaded” and “motivated to keep the custody arrangement
status quo.” Rule 1925(a) Opinion, 2/9/21, at 3-4.
It is well established that this Court is bound by the credibility
determinations of the trial judge, “who viewed and assessed the witnesses
first-hand.” R.L.P. v. R.F.M., 110 A.3d 201, 207-08 (Pa. Super. 2015).
The 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.
Id. at 208. See also J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)
(with regard to issues of credibility and weight of evidence, we defer to
presiding trial judge). Although this Court has a broad scope of review, we
are “not free to nullify the fact-finding function of the trial judge and must
defer to [her] findings where they involve the credibility of witnesses.” Nancy
E.M. v. Kenneth D.M., 462 A.2d 1386, 1388 (Pa. Super. 1983).
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Additionally, with respect to Mother’s argument that the court “based
the change in custody” on the parties’ conflict, the distance between their
residences, and their respective childcare availability, Appellant’s Brief, at 12,
we point out that the court analyzed each of the statutory custody factors,
and concluded five of the sixteen factors favored Father, one favored Mother,
and the remaining ten were either neutral or inapplicable. This Court has
stated that the trial court is required to consider all of the section 5328(a)
factors when entering a custody order. J.R.M. v. J.E.A., 33 A.3d 647, 652
(Pa. Super. 2011). Although the trial court is required to give “weighted
consideration to those factors which affect the safety of the child” pursuant to
section 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). 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.” Id., citing A.D. v. M.A.B., 989
A.2d 32, 35-36 (Pa. Super. 2010). See also R.M.G., Jr., supra at 1237
(“The parties cannot dictate the amount of weight the trial court places on
evidence.”). Here, Judge Streib determined Father was more likely to
encourage contact between Mother and Child. 23 Pa.C.S.A. § 5328(a)(1).
The record, including the parties’ testimony and evidence of text messages
between the parties, supports the court’s finding that Mother attempted to
limit Father’s custody time, that she micromanaged Father’s custody time,
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and that she excluded Father from medical appointments. See Trial Court
Opinion, 12/10/20, at 2.
Further, it was within the court’s discretion to weigh Mother’s negative
factors and Father’s positive factors as it saw fit in determining what type of
order would meet Child’s best interests. The record supports the court’s
analysis and its order. The court acknowledged this was a significant change
for all involved, but stated it focused on “the totality of the circumstances”
and the “effects on Child in considering the sixteen factors and Child’s best
interest.” Rule 1925(a) Opinion, supra at 5.
Mother’s claims on appeal collectively challenge the trial court’s findings
of fact and determinations regarding the credibility of witnesses and weight of
the evidence presented at trial. Mother essentially questions the court’s
conclusions and assessments and asks this Court to reweigh the evidence and
reach an alternative conclusion. This we cannot do. It is well settled that this
court cannot reverse a trial court’s decision merely because the record could
support a different result. See In re Adoption of T.B.B., 835 A.2d 387, 394
(Pa. Super. 2003). When we review a custody order, “the test is whether the
trial court’s conclusions are unreasonable as shown by the evidence of record.”
P.J.P. v. M.M., 185 A.3d 413, 417 (Pa. Super. 2018).
Our thorough review of the record in this case demonstrates that
competent record evidence supports the trial court’s factual findings, and its
modified custody order is reasonable in light of those findings. We find no
abuse of discretion. C.R.F., III, supra; M.A.T., supra. See also R.M.G.,
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supra at 1237 (“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.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2021
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