E.R.C. v. K.J.C., Jr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.R.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
K.J.C., JR. : No. 1320 MDA 2020
Appeal from the Order Entered September 11, 2020
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
201507957
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: July 30, 2021
E.R.C. (Mother) appeals from the order, entered in the Court of Common
Pleas of Luzerne County, denying her petition to modify a stipulated custody
order. After our review, we affirm based on the opinion authored by the
Honorable Fred A. Pierantoni, III.
Mother and K.J.C., Jr. (Father) are the parents of A.C. (born April 2007)
and M.C. (born December 2011) (minor children). The parties, who live within
walking distance of one another (1.5 miles) and reside in the same school
district, entered into an agreement on January 7, 2018, which the court
entered as a stipulated custody order on February 8, 2018. That order
provided that the parties would share legal custody of the minor children. The
order provided Father with primary physical custody and Mother with partial
physical custody as follows:
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Mother shall have periods of physical custody of the minor children
based upon a two (2)-week repeating cycle as follows:
Beginning Wednesday, January 17, 2018[,] and every other
Wednesday thereafter, Mother shall have physical custody of the
minor children from after school until the following Monday
morning at which time Mother shall transport the minor children
to school (if no school, then to Father’s residence).
Beginning Wednesday, January 24, 2018[,] and on all alternating
Wednesdays thereafter, Mother shall have physical custody of the
minor children from after school until the following morning, at
which time Mother shall transport the minor children to school (if
no school, then to Father’s residence).
Stipulated Custody Order, 2/8/18,at ¶ 5a-b. The order also provided the
parties share holidays and required the parties to engage in co-parenting
counseling. Id. at ¶¶ 6-12, 21.
On February 7, 2019, Mother filed a petition for modification and a
custody trial listing. On September 24, 2019, the court ordered a pretrial
conference for December 6, 2019. The custody trial took place on August 31,
2020.1 Following trial, the court entered an order on September 11, 2020,
denying Mother’s petition for modification and ordering the stipulated custody
order remain in full force and effect. On October 13, 2020, Mother filed this
____________________________________________
1 Trial was originally scheduled for March 31, 2020. Due to the statewide
judicial emergency declared as a result of the COVID-19 pandemic, trial was
delayed until August 31, 2020. See Rescheduling Orders, 4/15/20, 6/24/20,
6/30/20. It is unclear from the record what caused the seven-month delay
prior to the pandemic.
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timely appeal.2 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 abuse its discretion or commit an error of
law in its September 11, 2020 order in that it denies Mother
[shared] physical custody of her minor children?
2. Did the trial court abuse its discretion or commit an error of
law in its September 11, 2020 order in that it confirms that
both parties are to have shared legal and shared physical
custody of their minor children but denies [Mother] actual
shared [] physical custody of the minor children in terms of
time spent with each parent?
3. Did the trial court abuse its discretion or commit an error of
law in limiting Mother’s [] physical custody of her minor
children without any evidence or testimony that Mother’s
time with her minor children should be restricted or unequal
to that of Father?
____________________________________________
2 Generally, a notice of appeal must be filed within 30 days after the entry of
the order from which the appeal is taken. See Pa.R.A.P. 903(a). Here, the
30th day was Monday, October 12, 2020. Our legislature has designated the
second Monday in October, known as Columbus Day, a legal holiday. See 44
P.S. § 11. Thus, Mother’s appeal, filed on Tuesday, October 13, 2020, was
timely. See Pa.R.A.P. 903(a). See also Official Note-Pa.R.A.P. 903, which
provides:
Rule of Appellate Procedure 107 incorporates by reference the
rules of construction of the Statutory Construction Act of 1972, 1
Pa.C.S. §§ 1901 through 1991. See 1 Pa.C.S. § 1908, relating to
computation of time for the rule of construction relating to (1) the
exclusion of the first day and inclusion of the last day of a time
period and (2) the omission of the last day of a time period which
falls on Saturday, Sunday or legal holiday.
Id.
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4. Did the trial court abuse its discretion or commit an error of
law in refusing to interview the minor children in camera as
requested by Mother and failed to give appropriate weight
to the proffered testimony of the minor children that the
custody schedule should be modified to provide Mother with
additional periods of custody?[3]
5. Were the trial court’s conclusions unreasonable as shown by
the evidence of record?
6. Did the trial court abuse its discretion or commit an error of
law by failing to enter a custody order that is in the best
interests of the minor children?
Appellant’s Brief, at 4.
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
____________________________________________
3 Mother failed to raise this issue in
her Rule 1925(b) concise statement of
errors complained of on appeal. See Rule 1925 Statement, 10/13/20. This
claim, therefore, is waived. See In re C.M., 882 A.2d 507, 515 (Pa. Super.
2005).
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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). Further,
The parties cannot dictate the amount of weight the trial court
places on the evidence. . . . 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).
The paramount concern in any custody case under the Child Custody
Act (the 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. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition,
a trial court may modify a custody order if it serves the “best interests of the
child.” See 23 Pa.C.S. § 5338. Section 5328(a) sets forth the 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
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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.
(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.
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23 Pa.C.S. §§ 5328(a) (1)-(16). Moreover, section 5323(d) mandates that,
when the trial court awards custody, it “shall delineate the reasons for its
decision on the record in open court or in a written opinion or order.” Id. at
§ 5323(d).
Initially, we note that Mother argues that the court’s September 11,
2020 order “awarded, granted and ordered both parties to have shared legal
and shared physical custody of their minor children, but denied [Mother]
actual shared physical custody of the minor children[.]” See Appellant’s Brief,
at 10. This is inaccurate. The September 11, 2020 order denied Mother’s
petition for modification, in which she sought shared physical custody, and
ordered the existing stipulated custody order “remain in full force and effect.”
See Order, 9/11/20. The existing order specifically awarded primary physical
custody to Father. See Stipulated Custody Order, 2/8/18, at ¶ 4. We also
note that Mother’s proposal of a shared physical custody arrangement would
give her one additional overnight with the children. See N.T. Custody Trial,
8/31/20, at 38-39 (Q: “So you have a total of six overnights in a two-week,
14-day cycle; right?” A: “That’s right.” Q: And sharing would be one additional
overnight; right? Seven?” A: “That’s correct.”).
After our review of the parties’ briefs, the record, and the relevant law,
we find no error or abuse of discretion in the trial court’s decision. In its
opinion in support of its order, the trial court carefully analyzed and addressed
each section 5328(a) factor and considered the minor children’s best interests.
See Trial Court Opinion, 9/11/20, at 11-15. Though most of the factors were
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neutral, two favored Father. Testimony from trial indicated that Father was
flexible and willing to offer Mother additional periods of physical custody, and
Father has a four-year-old son who is the minor children’s half-brother. The
court did find that Father had two prior convictions for driving under the
influence (in 2006 and 2014), but also found Father’s living situation more
stable, noting that Mother had moved to Florida with her paramour in June of
2016, but had the minor children with her for the summer, and then returned
in December of 2016. See id., at 4-5, 9. See also R.M.G., Jr., supra at
1237 (parties cannot dictate amount of weight trial court places on evidence).
Additionally, the court emphasized that the minor children are thriving
under the present schedule; “according to both Mother and Father, [the minor
children] are thriving physically, intellectually, spiritually, and morally under
the current custody scheme in which Father has assumed the role of primary
caretaker.” Id. at 17. Mother’s testimony confirmed this. See N.T., supra
at 40 (Q: “And would you agree that [the minor children] are both doing very
well academically under the current schedule?” A: “Yes, they are.” Q: “In
fact, your oldest daughter has received [] accolades [] from the school in
terms of math and science[?]” A: “Yes. Both of my children have [received]
straight A’s their entire school li[ves].”).
We agree with the court that Mother has not established that a change
in the current custody arrangement is in the minor children’s best interests,
see Trial Court Opinion, 9/11/20, 19, and we are satisfied that the court’s
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findings are supported by the evidence. We discern no abuse of discretion.
M.A.T., supra.We rely on Judge Pierantoni’s opinion to affirm the custody order. We
direct the parties to attach a copy of that opinion in the event of further
proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2021
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Circulated 07/20/2021 11:47 AM