Lindsey, H. v. Gault, J.

J-A01003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HERBERT E. LINDSEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSICA E. GAULT :
:
Appellant : No. 1183 MDA 2021
Appeal from the Decree Entered August 18, 2021
In the Court of Common Pleas of Franklin County Civil Division at No(s):
2019-05190
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 1, 2022
Jessica E. Gault (Mother) appeals from the decree modifying custody of
her minor child, N.R. (Child). Mother argues that the trial court abused its
discretion when it failed to award her primary physical custody because Child’s
father, Herbert E. Lindsey (Father), uses corporal punishment when Child is
in his custody, and the punishment is negatively impacting Child. We affirm
based on the trial court’s opinion.
The trial court summarized the relevant facts and procedural history of
this matter as follows:
[Child] is a thirteen-year-old male who resides primarily in
Shippensburg, Pennsylvania, with [Father], Step-Mother, and
three half-siblings. [Child] attends Shippensburg Middle School
and will enter the eighth grade this fall.
Mother resides in Florida and exercises physical custody of [Child]
during the summer and on holidays. [Mother] shares legal
custody with Father. Mother lives in a four-bedroom home with
her husband, mother-in-law, and four children, two of whom only
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live with Mother during the summer. Mother works as a nurse and
moved to Florida to further her nursing degree. Mother does not
have a set work schedule and can select her work schedule to suit
her needs.
Father resides in Shippensburg, Pennsylvania. He has primary
physical custody of [Child]. Father lives in a three-bedroom home
with his wife and four children, including [Child]. Father is a truck
driver and typically works from approximately 4 a.m. until
between 2-6 p.m. on weekdays.
Trial Ct. Op., 8/18/21, at 1-2.
[Mother] filed a Petition to Modify Custody on September 13,
2019, and a Petition for Relocation on October 9, 2019, in Adams
County. This case was transferred from Adams County to this
[c]ourt on December 26, 2019. Mother filed a Petition to Modify
Custody on January 14, 2021, with this [c]ourt requesting primary
physical custody and shared legal custody.
On March 18, 2021 the parties attended conciliation. On March
30, 2021, the Conciliator recommended the two prior Orders from
Adams County remain in effect, except for certain summer and
holiday modifications.
A Pre-Trial Conference was held on May 11, 2021. On August 3,
2021, trial was held on Mother’s Petition to Modify Custody. The
parties testified and [Child] was interviewed in camera.
Trial Ct. Op., 8/18/21, at 1.
At the conclusion of trial, the trial court entered a decree superseding
all prior orders concerning the custody of Child. The decree awarded Father
primary physical custody with specified periods of custody between the
parties, and it granted Mother and Father shared legal custody. On September
8, 2021, Mother filed a timely notice of appeal and statement of matters
complained of on appeal. On October 1, 2021, trial court filed a statement
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pursuant to Pa.R.A.P. 1925(a) incorporating by reference its August 18, 2021
opinion, which was filed in conjunction with the August 18, 2021 decree.
Mother raises the following issue:
Did the trial court err in not granting Mother primary custody as
evidenced by the record in [Child’s] failure to thrive emotionally,
physically, academically, socially, and spiritually so that [Child]
may not now receive the tutoring, counseling, and other support
that [Child] needs to thrive, especially in a school setting, a result
which may be adverse to the long-term welfare and best interest
of [Child]?
Mother’s Brief at 4.
In matters under the Child Custody Act, 23 Pa.C.S. §§ 5321-5340, our
scope and standard of review are as follows:
Our scope is of the broadest type and our standard is abuse of
discretion. This Court 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, this Court must defer to the trial judge who presided
over the proceedings and thus viewed the witnesses firsthand.
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.
Furthermore, we note that 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.
The primary concern in any custody case is the best interests of
the child. The best-interests standard, decided on a case-by-case
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basis, considers all factors that legitimately affect the child’s
physical, intellectual, moral, and spiritual well-being.
B.S.G. v. D.M.C., 255 A.3d 528, 533 (Pa. Super. 2021) (formatting altered
and internal citations omitted). In assessing a child’s best interests, the trial
court must consider the factors detailed in 23 Pa.C.S. § 5328, which are set
forth as follows:
(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).
(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.
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(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. § 5328(a).
Additionally, although neither Mother nor Father sought to relocate,
Mother’s request for modification involved changing Child’s primary residence
from Pennsylvania to Florida, and in such circumstances, the trial court is
permitted to consider the relocation factors set forth in 23 Pa.C.S. § 5337(h).
See D.K. v. S.P.K., 102 A.3d 467, 474 (Pa. Super. 2014) (stating that the
relocation provisions of Section 5337 are not triggered unless one of the
parties is relocating; however, even in cases where Section 5337 is not
triggered per se, the trial court may consider the factors from Section 5337(h)
where a request for modification of custody involves changing the child’s
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residence to a significantly distant location). The factors from Section 5337(h)
that the trial court considered in the instant case are as follows:
(h) Relocation factors.--In determining whether to grant a
proposed relocation, the court shall consider the following factors,
giving weighted consideration to those factors which affect the
safety of the child:
(1) The nature, quality, extent of involvement and duration
of the child’s relationship with the party proposing to
relocate and with the nonrelocating party, siblings and other
significant persons in the child’s life.
* * *
(3) The feasibility of preserving the relationship between the
nonrelocating party and the child through suitable custody
arrangements, considering the logistics and financial
circumstances of the parties.
* * *
(7) Whether the relocation will enhance the general quality
of life for the child, including, but not limited to, financial or
emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or
opposing the relocation.
* * *
23 Pa.C.S. § 5337(h).1
We have reviewed the briefs of the parties, the relevant law, the certified
record before us on appeal, and the trial court’s opinion. As noted, the trial
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1 In its discretion, the trial court considered the factors under Section 5337 in
conjunction with factors set forth and considered under Section 5328. See
A.N. v. L.E.W., 1048 EDA 2021, 2022 WL 34865, at *13 (Pa. Super. filed
January 4, 2022) (unpublished mem.). See generally Pa.R.A.P. 126(b)
(noting that unpublished memorandum decisions of the Superior Court filed
after May 1, 2019, may be cited for their persuasive value).
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court aptly considered all of the factors set forth in 23 Pa.C.S. § 5328(a), and
it engaged in and explained its discretionary review of relevant factors from
23 Pa.C.S. § 5337(h). Moreover, we conclude that the trial court’s opinion
aptly addressed Mother’s concerns relative to Father’s discipline of Child in
addition to her other challenges to the August 18, 2021 decree. Specifically,
the trial court acknowledged the positives and negatives of each parties’
disciplinary methods and carefully weighed those considerations in
conjunction with the factors under Sections 5328 and 5337. We discern no
abuse of discretion nor error of law. See B.S.G., 255 A.3d at 533.
Accordingly, we affirm the August 18, 2021 decree on the basis of the trial
court’s opinion. See Trial Ct. Op., 8/18/21, at 2-11.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/01/2022
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