J.D. v. J.B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.B. :
:
Appellant : No. 1869 EDA 2020
Appeal from the Order Entered September 14, 2020
In the Court of Common Pleas of Delaware County Civil Division at
No(s): No. 2020 - 003429
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2021
J.B. (“Mother”) appeals from the Order denying her Petition to relocate
to Pennsburg, Montgomery County, and awarding her and J.D. (“Father”)
shared legal custody, and Father primary physical custody of their child, J.D.,
Jr. (“Child”) (a male born in April 2019). We affirm.
In its Opinion, the trial court set forth the relevant factual and procedural
history, which we adopt for the purpose of this appeal. See Trial Court
Opinion, 11/19/20, at 1-14.
Briefly, Child was born in April 2019 to Mother and Father. In May 2020,
shortly after Child’s first birthday, Mother left the residence she shared with
Father in Wallingford, Delaware County, with Child, in order to reside at her
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parents’ home in Pennsburg, Montgomery County.1 On June 3, 2020, Father
filed a custody Complaint and an Emergency Petition for custody, and filed an
Amended Petition for custody a week later. The trial court held a hearing on
June 23, 2020, after which the trial court granted Father’s Emergency Petition,
and granted Mother and Father joint legal custody, with Father having primary
physical custody, and Mother having partial physical custody. On June 26,
2020, Mother filed an Emergency Petition for relocation, and Father filed an
Answer and Counterclaim on June 29, 2020. On June 30, 2020, the trial court
denied Mother’s Petition, and scheduled a relocation trial for a later date.
Mother filed an Emergency Petition to Modify Custody Order on July 10, 2020,
which the trial court denied on July 14, 2020.
The trial court held a custody and relocation trial on July 31, 2020,
where both Father and Mother were represented by counsel, testified, and
presented evidence. On September 14, 2020, the trial court entered an Order
denying Mother’s request for relocation. However, the trial court awarded
Mother and Father shared legal custody, Father primary physical custody, and
Mother partial physical custody every Sunday from 10:00 a.m. to Wednesday
at 4:00 p.m., with exchanges at Father’s residence and Mother being
responsible for all transportation.
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1 Mother filed a Notice of proposed relocation two days prior to vacating the
residence, but the Notice had not been served on Father prior to Mother’s
departure with Child. See N.T., 7/21/20, at 37, 47, 66, 112-13.
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Mother filed a Motion for Reconsideration on October 5, 2020, which the
trial court denied. On October 8, 2020, Mother filed a timely Notice of Appeal,
as well as a Concise Statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises the following issues for our review:2
1. Did the [trial] court abuse its discretion by awarding primary
physical custody to [Father]?
2. Did the [trial c]ourt err in stating that [sic] proximity of
residence factor favors Father[,] when Mother agreed to do all of
the driving transportation?
3. Did the [trial c]ourt err in stating that Mother displayed an
unwillingness to work with Father?
4. Did the [trial c]ourt err in stating that Father was willing to work
with Mother?
5. Did the [trial c]ourt err in stating that Father was awarded
primary physical custody because he was credible in his testimony
regarding his willingness to work with Mother, his conduct prior to
the entry of the Temporary Order was measured and reasonable
and in the best interest of [C]hild, that he remains in the home
____________________________________________
2 Father argues that Mother waived all issues on appeal as a result of
procedural and substantive deficiencies relating to her Concise Statement,
Designation of Contents of Reproduced Record, and appellate brief. Father’s
Brief at 15-24. Our review confirms Mother’s failure to file a Designation of
Contents of Reproduced Record and procedural deficiencies related to Mother’s
brief (in particular, Mother’s Argument section is devoid of the required
distinctive organizational headings separating each issue, as well as citation
to applicable law, except for initial generalized reference, and, when
applicable, citation to where she raised such issues below). Nevertheless, we
decline to find waiver, and proceed with the merits of Mother’s appeal. See
Pa.R.A.P. 2101 (stating that “[b]riefs and reproduced records shall conform in
all material respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they may be
suppressed….”).
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where [C]hild has lived his whole life, that he would only need
child care at night when [C]hild was sleeping and his residence is
in a better school district?
Mother’s Brief at 4 (suggested answers omitted).3
We will address Mother’s issues together. First, Mother argues that the
trial court erred in finding that Father was the more likely party to encourage
and permit frequent and continuing contact between Child and the other
parent. Id. at 11-12. Mother asserts that the trial court ignored testimony
that Mother communicated with Father during the period of time during which
she was not permitting Father to see Child, and that the trial court was
punishing Mother for her uncertainty as to whether Father would have
returned Child to Mother if Mother had allowed Father to see Child. Id. at 11.
Mother asserts that Father’s unwillingness to agree to contact with Mother
____________________________________________
3 While Mother states her issues somewhat differently in her appellate brief
than in her Rule 1925(b) Statement, we nevertheless find that Mother
preserved her challenge to the trial court’s award of primary physical custody
to Father. Mother did not present a challenge to the denial of relocation, as
she failed to raise the issue in her appellate brief. She also failed to preserve
in her Rule 1925(b) Concise Statement and Statement of Questions Involved
separate challenges related to the analysis of custody factors 9 and 10; that
the Order was punitive and lacked relation to Mother’s and Father’s work
schedules; and consideration of school district. See Krebs v. United
Refining Co., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to
preserve issues by raising them both in the concise statement of errors
complained of on appeal and statement of questions involved portion of the
appellate brief results in a waiver of those issues); see also In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017). Accordingly, we will
address such issues only to the extent that Mother incorporates them within
the context of her preserved challenges.
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beyond the court-ordered two nights per week should not have resulted in the
trial court favoring Father in this regard. Id. at 12.
Second, Mother argues that the trial court erred in finding that Father
was better able to provide stability and continuity for Child’s education, family,
and community life. Id. Mother asserts that the trial court should have found
in favor of Mother, because Mother residing with her parents provides an even
greater level of stability for Child. Id. Further, Mother asserts that because
Child is one year old, maintaining the same residence with Father is
inconsequential. Id.
In Mother’s third issue, she argues that the trial court erred in favoring
Father when evaluating the attempts of a parent to turn Child against the
other parent. Id. at 12-13. Mother asserts that the trial court ignored
Father’s testimony that he threatened Mother with not returning Child to her,
and Father’s threats were the reason why she retained Child at her parents’
home. Id. at 13.
In Mother’s fourth issue, she argues that the trial court contradicted
itself in initially concluding that Father was more likely to maintain a loving,
stable, consistent and nurturing relationship with Child, and that Father was
more likely to attend to Child’s daily physical, emotional, developmental,
educational and special needs. Id. at 13-14. Mother asserts that the trial
court’s subsequent Opinion, which stated that the factor favored both parties,
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is important because it weakens the overall support for granting Father
primary custody. Id.
Fifth, Mother argues that the trial court erred in finding that Father was
more available to make appropriate childcare arrangements for Child. Id. at
14-15. Mother asserts that no factual basis existed for awarding Father more
custodial time than Mother, as Mother was willing to do all of the driving
between their residences, and her work schedule is more conducive to caring
for Child. Id. Further, Mother claims that the trial court made no attempt to
work with Mother’s and Father’s work schedules, and had the trial court done
so, each party would have been able to spend more time with Child. Id. at
15.
In custody cases under the Child Custody Act (the “Act”), 23 Pa.C.S.A.
§§ 5321-5340, our 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. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
The discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
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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.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). Further, “[a]n abuse of
discretion is not merely an error of judgment; if, in reaching a conclusion, the
court overrides or misapplies the law, or the judgment exercised is shown by
the record to be either manifestly unreasonable or the product of partiality,
prejudice, bias or ill will, discretion has been abused.” Bulgarelli v.
Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted); see also 23 Pa.C.S.A. §§ 5328, 5338. In assessing the
child’s best interest, the trial court must consider the custody factors set forth
in section 5328(a) of the Act, which provides as follows:
§ 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
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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) and
(2) (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.
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(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). “All of the factors listed in section 5328(a) are
required to be considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted);
see also 23 Pa.C.S.A. § 5323(d) (providing that, when a trial court awards
custody, it must “delineate the reasons for its decision on the record in open
court or in a written opinion or order.”). However, “[i]n expressing the
reasons for its decision, there is no required amount of detail for the trial
court’s explanation; all that is required is that the enumerated factors are
considered and that the custody decision is based on those considerations.”
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation
marks omitted).
With regard to the custody factors, we have stated as follows:
“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). … The record must be clear on appeal that the trial
court considered all the factors. [E.D., supra at 81.]
Section 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.” 23 Pa.C.S.A. § 5323(d). Additionally,
“[S]ection 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 ([Pa. ]2013)….
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In expressing the reasons for its decision, “there is no
required amount of detail for the trial court’s explanation; all that
is required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68
A.3d 909 ([Pa. ]2013). A court’s explanation of reasons for its
decision, which adequately addresses the relevant factors,
complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).
Although the court is required to give “weighted consideration to those
factors which affect the safety of the child” pursuant to 23 Pa.C.S.A.
§ 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 at
339. Critically, 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. See A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa.
Super. 2010) (“In reviewing a custody order … 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.”).
M.J.M., 63 A.3d at 339 (emphasis added).
In its Findings of Fact and Conclusions of Law accompanying its Order,
the trial court comprehensively addressed and analyzed the custody factors
pursuant to section 5328(a). See Trial Court Findings of Fact and Conclusions
of Law, 9/14/20, at 15-27. Specifically, the trial court found that custody
factors 1, 4, 8, 11, 12, and 13 favor Father; custody factors 3, 5, 9, and 10
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favor both Mother and Father, and the remaining custody favors favor neither
party. See id. at 15-27.4
In its Opinion, the trial court summarized its analysis as follows:
The Findings of Fact and Conclusions of Law dated September 14,
2020[,] contains the trial court’s determinations made pursuant
to the applicable statutory factors and which support the Final
Order entered on the same date. The trial court took into
consideration all of the evidence, assessed the credibility of each
witness, and determined the weight that should be afforded the
evidence in light of the statutory custody … factors. The trial court
finally determined that it would be in the best interest of [Child]
to … award primary physical custody to Father.
The testimony of record clearly supports the trial court’s
finding that Father is far more flexible and willing to foster Child’s
relationship with Mother than Mother is with Father. Although
Mother now may advocate for a shared physical custody
arrangement, prior to the [c]ourt’s Order[,] she was rigid in her
opinion that she should have primary custody. In addition, the
trial court found that Mother’s plan for her residence and
employment was not stable and did not present a clear plan for
providing [] Child with necessary consistency in his daily life.
Mother, while currently living in Pennsburg, Montgomery County
with her parents, signed a lease for an apartment in Bryn Mawr,
Delaware County[,] about which she could not provide pertinent
information[,] and obtained a temporary job in Bucks County
requiring travel and extensive amounts of daytime separation
from Child. Father’s residence and place of employment are
within minutes of each other in Delaware County and he has a
regular schedule to which Child is accustomed. The trial court
further found that Mother had engineered unnecessary conflicts
with Father regarding custody and did not in any reasonable
manner attempt to amicably resolve their disagreements prior to
the trial.
Trial Court Opinion, 11/19/20, at 14-16.
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4 We observe that while the trial court indicated that it found custody factors
9 and 10 in favor of Father, its analysis reveals that the trial court actually
found the custody factors in favor of both parties. See Trial Court Findings of
Fact and Conclusions of Law, 9/14/20, at 22-24.
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In each of her issues, Mother disputes the trial court’s findings and
determinations regarding the credibility and weight of the evidence, as well as
the weight attributed to certain factors. Mother, essentially, asks this Court
to re-find facts, re-weigh evidence, and/or re-assess credibility to his view of
the evidence. This we cannot do. See D.R.L. v. K.L.C., 216 A.3d 276, 286
(Pa. Super. 2019) (stating that it is not this Court’s role to re-find facts, re-
weigh evidence, and re-assess credibility). Under our standard of review, the
trial court’s findings of fact and determinations regarding credibility and
weight of the evidence are not disturbed absent an abuse of discretion. See
C.R.F., supra. As we stated in King v. King, 889 A.2d 630, 632 (Pa. Super.
2005), “[i]t is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether, ‘based on the
evidence presented, given [sic] due deference to the trial court’s weight and
credibility determinations,’ the trial court erred or abused its discretion….”
(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)). After a
thorough review of the record, we discern no abuse of discretion by the trial
court. To the extent that Mother challenges the weight attributed to any factor
by the trial court, we likewise discern no abuse of discretion. See M.J.M., 63
A.3d at 339.
In this case, after careful review of the record, we conclude that the trial
court’s findings and determinations are supported by competent record
evidence, and we will not disturb them. See C.R.F., supra. Accordingly, we
affirm the trial court’s Order.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2021
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Circulated 08/09/2021 02:59 PM