L.G. n/k/a L.H v. S.T.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
L.G. N/K/A L.H., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 569 EDA 2019
:
S.T. :
Appeal from the Order Entered January 22, 2019,
in the Court of Common Pleas of Lehigh County
Civil Division at No. 2017-FC-0550
BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 19, 2019
L.G. n/k/a L.H. (“Mother”) appeals from the January 22, 2019 custody
order1 that denied Mother’s petition for modification; that denied the petition
for contempt filed on October 4, 2018, and the petition for special relief and
petition for contempt filed on November 15 2018 by S.T. (“Father”); that
denied Mother’s December 5, 2018 petition for contempt; and that awarded
shared legal custody of J.T., male child, born in September 2014 (“Child”) to
1 We note that the trial court executed the order on January 18, 2019, but the
order was not entered on the docket until January 22, 2019. As an appeal is
properly taken from an order that has been entered on the docket, we have
corrected the caption to accurately reflect the date that the order from which
Mother appeals was entered on the docket. See Pa.R.A.P. 903(a) (requiring
that a notice of appeal must be filed within 30 days after “entry of the order
from which the appeal is taken”).
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Mother and Father, primary physical custody of Child to Father, and partial
physical custody of Child to Mother.2 We affirm.
The record reflects that Mother and Father lived together for several
years prior to Child’s birth but never married. Mother and Father ended their
relationship in March 2017. In November 2017, Mother married. Mother
attends a beauty school, where she also teaches. She also works as a hair
stylist from her home. Father resides with his paternal grandmother, two
nephews, and a niece. Father works for a transportation company. Child is
four years old. Mother and Father agree that he has behavioral problems.
Mother and Father have engaged in extensive litigation for several years
with respect to custody of Child. Mother has filed numerous protection from
abuse (PFA) petitions against Father, the first of which caused him to be
evicted from the parties’ residence in December 2015. During the pendency
of that petition, Mother filed her first complaint for custody. Although Mother
obtained temporary protection orders after filing her PFA petitions, the
petitions were ultimately dismissed for failure to appear or insufficient
evidence. Mother’s first complaint for custody was also dismissed when she
failed to appear at a custody conference.
Mother filed her second complaint for custody on April 18, 2017 seeking
sole legal and physical custody of Child. Mother continued to file unsuccessful
2 We note that the order also made Mother solely responsible for providing
transportation to effectuate the custodial schedule.
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PFA petitions against Father. On May 15, 2017, Father filed a response to
Mother’s custody complaint, as well as a counterclaim for custody in which he
sought sole legal and physical custody. During this period, Mother relocated
several times. On May 23, 2017, the trial court entered a temporary custody
order granting shared legal and physical custody. Mother continued to file
unsuccessful PFA petitions. She also continued to relocate. Prior to the
custody trial, the parties filed petitions for contempt alleging violations of the
temporary custody order against each other. Father also filed a petition for
special relief wherein he alleged that Mother was preventing him from seeing
Child and that it would be in Child’s best interest to be with Father.
Following a two-day custody trial, the trial court entered its January 22,
2019 custody order. Mother filed a timely notice of appeal, together with a
concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). The trial court filed a Rule 1925(a)(2)(ii) opinion
wherein it incorporated its January 22, 2019 opinion.
Mother raises the following issues for our review:
[1.] Whether the trial court erred in failing to
appropriately address and weigh each of the
sixteen custody factors as required by
§ 5328(a)?
[2.] Whether the trial court erred in failing to file its
decision within fifteen days of the date upon
which the trial concluded as required by
Pa.R.C[iv].P. 1914.5(d)?
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[3.] Whether the trial court erred by considering
evidence outside of the record in making its
decision?
Mother’s brief at 6.3
Mother first complains that the trial court failed to adequately consider
the 16 custody factors set forth in the Child Custody Act, 23 Pa.C.S.A.
§§ 5301-5366.
With respect to our standard of review, it is well settled that
[w]e review a trial court’s determination in a custody
case for an abuse of discretion, and our scope of
review is broad. Because we cannot make
independent factual determinations, we must accept
the findings of the trial court that are supported by
the evidence. We defer to the trial judge regarding
credibility and the weight of the evidence. The trial
judge’s deductions or inferences from its factual
findings, however, do not bind this Court. We may
reject the trial court’s conclusions only if they involve
an error of law or are unreasonable in light of its
factual findings.
C.A.J. v. D.S.M., 136 A.3d 504, 506 (Pa.Super. 2016) (citation omitted).
Section 5328 of the Child Custody Act sets forth the 16-factor
best-interest test, 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
3 We note that Father did not file a brief.
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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)
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.
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(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.
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(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).
Mother complains that the trial court “fail[ed] to provide any in-depth
analysis” on Factors (a)(2), (a)(3), (a)(6), (a)(8), (a)(9), (a)(10), (a)(11),
(a)(12), and (a)(13) and that it placed “exorbitant emphasis” on Mother’s PFA
filings. (See Mother’s brief at 17-18.) In its opinion supporting its custody
order, the trial court set forth a detailed factual and procedural history,
properly recognized its statutory duty to give weighted consideration to the
custody factors that affect the Child’s safety, and determined that
[o]f the 16 factors, there has been nothing
substantiated in the record as to a history of drug or
alcohol abuse by a party or any member of a
parties [sic] household. 23 Pa. C.S.A. § 5328(a)(14).
Also, there has been no evidence of a mental or
physical condition of a party or member of a party’s
household. 23 Pa.C.S.A. § 5328(a)(15). Each party
has raised safety concerns regarding the other parent.
Mother, however, has filed six Petitions for Protection
from Father. Four of the Petitions were dismissed
because she failed to appear for the final hearing and
two were denied for insufficient evidence.
Consequently, this factor is neutral as to each party.
23 Pa.C.S.A. § 5328(a)(2). Given the tender age of
the [C]hild, the court did not conduct an interview as
to the preference of the Child. 23 Pa.C.S.A.
§ 5328(a)(7). The Child is Mother’s only child. Father
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has a son, age 7, with whom he has regular periods
of partial custody and extended periods of custody
during the summer; the child’s mother resides in
New Jersey. 23 Pa.C.S.A. § 5328(a)(4).
Each of the parties has extended family involved
regularly in the Child’s life. 23 Pa.C.S.A.
§ 5328(a)(5). Maternal Grandmother, who provides
child care, and Maternal Great Grandmother reside
near Mother at her current address. Maternal
Grandfather, [J.G.], who testified on behalf of Mother,
resides in Allentown with his wife and family. Mother
and Child regularly visit with them. Father resides
with paternal Grandmother and his niece and
nephews. Father has siblings who reside in the Lehigh
Valley area and who visit with the Child. Based upon
the parties’ current addresses, they reside
approximately sixty-one miles apart; drive time
one-way is a minimum of an hour and twenty minutes
on a toll road. 23 Pa.C.S.A. § 5328(a)(11).
The court is permitted to consider any other relevant
factor. 23 Pa.C.S.A. § 5328(a)(16). Mother moved
from the Lehigh Valley without consent or prior court
order. Father filed an objection to her relocation. In
May 2017 the parents agreed to a shared physical
custody schedule requiring an exchange every few
days. In doing so, each of the parties acknowledged
that the other parent is fit and able to care for the
Child. Since that time, except those periods precluded
by a protection order, both parents have performed
parental duties on behalf of the Child. 23 Pa.C.S.A.
§ 5328(a)(3). Mother purports that she does the
lion’s share of the care of the Child, but the Court does
not find her credible. Each party has demonstrated
that they are equally able to attend to the daily
physical, emotional, developmental, educational and
special needs of the Child. 23 Pa.C.S.A.
§ 5328(a)(10). Similarly, each party is available to
care for the Child and has provided appropriate
child-care arrangements. 23 Pa.C.S.A.
§ 5328(a)(12).
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Furthermore, the May 2017 Order, although it was as
agreed, did not realistically take into consideration the
logistics of such a frequent exchange, an 8:00 P.M.
exchange for a toddler, and the three hour total round
trip drive. It was inevitable, given their work
schedules and other commitments, that the drive time
and transportation expense would create problems for
the parties who are of limited means. Moreover,
disputes were inevitable because there was no
agreement as to where the Child would schedule
doctor and dentist visits, and ultimately school.
To further complicate matters, the parties are unable
to effectively communicate with one another.
23 Pa.C.S.A. § 5328(a)(13). Although Mother has
been married for more than a year, Father had only
recently met Mother’s wife and perhaps the first time
was at the custody trial. In the court’s interim order,
the parties were ordered to communicate through
Talking Parent. At the time of the trial, Father had yet
to register for Talking Parent.
For nearly two years, the parties have had a roller
coaster ride in parenting due to their agreed custody
arrangement and Mother’s action. At Mother’s hand,
the stability of this family residing in separate homes
has been disrupted, diminishing the ability of each
parent to maintain a loving, stable, stable [sic] and
consistent and nurturing relationship with the Child.
23 Pa.C.S.A. § 5328(a)(9). Mother has taken
measures that ultimately have not been in her own
best interests or that of the Child. The first custody
factor for the court to consider is which party is more
likely to encourage and permit frequent and
continuing contact between the [C]hild and another
party. 23 Pa.C.S.A. § 5328(a)(1). Clearly, Mother
has not encouraged this Child’s relationship with
Father. Although the parties reached an agreement
that they would share physical custody, Mother has
engaged in conduct that has precluded Father from
contact with the Child. Of the six petitions for
protection from abuse, she has never been granted a
final order for protection from abuse from Father on
behalf of the Child nor herself. However, she has used
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the issuance of the temporary order for no contact as
a means to preclude Father’s access to the Child. All
of Mother’s protection from abuse petitions have been
denied for insufficient evidence or dismissed at her
request or due to her failure to appear.[Footnote 1]
Most recently and most alarming, the temporary order
of protection denied Father his periods of shared
custody for more than sixty days. Mother’s petition
included shocking allegations of Father’s sexual
assault of the Child which Mother later simply
withdrew. She has attempted to sabotage Father’s
relationship with his son. 23 Pa.C.S.A. § 5328(a)(8).
Mother has not been forthcoming with Father as to the
address of her residence. Mother’s testimony
regarding Father’s withholding the Child was
contradicted by her own witness, her wife. The record
demonstrates Mother’s willingness to engage the
courts in her falsehoods and Mother’s commitment to
the manipulation of the system at all costs.
[Footnote 1] The Lehigh County Office of
Children and Youth Services has been
involved on multiple occasions; all
investigations have gone unfounded.
In filing a petition for modification of custody, Mother
has opened the door for the court to review the
current circumstances of the Child and determine a
schedule in the Child’s best interests. Her request for
primary custody is denied; primary custody is granted
to Father. Transportation has been an ongoing issue
between the parties; timely pick up and drop off is a
source of much conflict between the parties. Mother
has consistently complained that Father has been late
in the pick-up and drop off of the Child. Mother chose
to move; according to her, it was because she needed
a change of scenery and Father was overwhelming.
Father has been actively involved with the Child,
sharing physical custody. The Child is near school age
and is eligible for Head Start pre-school. A custody
order shifting custody every few days between
households located sixty miles apart and outside the
same school district is no longer in the Child’s best
interests. Modification of the custody order is
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necessary at this time for stability, consistency and
the Child’s education.
The court is required to consider the need for stability
and continuity in the Child’s education, family life and
community life. Overall, Father has established
himself as the more stable of the two parents.
23 Pa.C.S.A. § 5328(a)(4). Each of the parties has
moved multiple times. Most recently Father moved
twice within a few months. He testified that the move
was due to the collapse of the roof, circumstances out
of his control. An eviction action was filed and
judgment was entered against him for non-payment
of rent. Mother has made several moves over the past
eighteen months. She relocated from Allentown to
Glenolden, Pennsylvania; four months later she
moved to Philadelphia, Pa [sic] and then several
months later she moved to Upper Darby,
Pennsylvania. The moves have been the source of
frustration to Father as Mother has not provided
Father with timely proper notice of her moves. While
Father has had similar changes in his address,
however[,] all have occurred within the city of
Allentown, not likely to impact the Child’s education
or sense of community.
Trial court opinion, 1/22/18 at 13-17 (record citations omitted).
Mother’s claim that the trial court failed to appropriately address and
weigh each of the custody factors is belied by the trial court’s opinion that
demonstrates that it fulfilled its statutory duty to determine the best interest
of the Child by giving weighted consideration to all relevant factors that affect
the Child’s safety. Based on our review of the record, the evidence supports
the trial court’s factual findings. Moreover, in light of those factual findings,
the trial court’s conclusions are not unreasonable. We discern no error of law.
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Mother next complains that the trial court violated Pa.R.Civ.P. 1915.4(d)
because it failed to file its custody determination within 15 days of the
conclusion of the custody trial. Rule 1915.4 sets forth rules regarding the
prompt disposition of custody cases. Subsection (d) provides:
(d) Prompt Decisions. The judge’s decision shall be
entered and filed within 15 days of the date
upon which the trial is concluded unless,
within that time, the court extends the
date for such decision by order entered of
record showing good cause for the
extension. In no event shall an extension
delay the entry of the court’s decision more than
45 days after the conclusion of trial.
Pa.R.Civ.P. 1915.4(d) (emphasis added).
Here, the record reflects that the custody trial concluded on
December 21, 2018. Therefore, the 15th day after the trial concluded was
January 5, 2019, which fell on a Saturday. Consequently, in the absence of
an order extending the date for filing the decision, the trial court had until
Monday, January 7, 2019, to file its decision. See Pa.C.S.A. § 1908 (omitting
Saturdays, Sundays, and legal holidays from the computation of a filing
deadline). The record reflects that by order dated January 4, 2019, and filed
on January 7, 2019, the trial court extended the time for it to file its decision
to January 18, 2019, because of its “current court caseload.” (Order of court,
1/7/19.) The record further reflects that although the custody order was
dated January 18, 2019, it was not entered on the docket until January 22,
2019, which was four days after the extension deadline and 33 days after the
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conclusion of trial. Although the order was not filed until four days after the
extension deadline, the extension itself was entered for good cause, and the
custody order was entered within 45 days of the conclusion of trial.
Nevertheless, Mother claims that she suffered prejudice
by the delay in the filing of the trial court’s Order and
Decision because custody was overturned effective
Monday, January 28, 2019. Mother had no notice of
the trial court’s decision until the Order was retrieved
by her counsel once it became available on the
electronic docket on Thursday, January 24, 2018. A
hard copy from the court was not received until even
later in the week.
Being provided with only one day’s notice to the
change in custody was extremely prejudicial to Mother
because it limited the relief she was able to seek from
the trial court. With only one day before custody was
overturned and provided to Father, she was unable to
seek a stay of the Order or other remedies that may
have been available to her due to the limited time
constraints.
Mother’s brief at 27-28.
Mother’s claim of prejudice lacks merit. Pa.R.Civ.P. 1915.10 prohibits a
party in a custody action from filing a motion for post-trial relief to an order
of legal or physical custody. Therefore, because Mother has failed to
demonstrate that she suffered prejudice by the minor filing delay, Mother is
not entitled to relief.
Mother finally complains that the trial court erred by considering
evidence not of record in the custody proceeding when it decided legal and
physical custody. Mother contends that
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the trial court considered Mother’s past filings of
protection from abuse petitions in making the decision
to change custody. In the trial court’s memorandum
it is clear that the court sua sponte conducted an
in-depth analysis of the protection from abuse filings
despite none of those coming in as evidence during
trial.
Mother’s brief at 30.
Mother’s claim is unfounded. The record reflects that at the custody
trial, both Mother and Father testified as to the various PFA petitions Mother
filed against Father. (Notes of testimony, 12/11/18 at 47-49, 73, 95-99,
129-130, 135; 12/21/18 at 7, 18, 26). Additionally, during a colloquy,
Mother’s counsel acknowledged the dismissal of the PFA petition that Mother
filed against Father in Lehigh County and had no objection to the trial court’s
reviewing the transcript of those proceedings. (Notes of testimony, 12/11/18
at 97-98.) Mother’s counsel also had no objection to the trial court’s taking
judicial notice of a PFA petition Mother filed against Father in March 2017.
(Id. at 99.) Indeed, Mother’s counsel had no objection to the trial court’s
reviewing the PFA docket in Delaware County and taking judicial notice of all
of the PFA petitions that Mother filed against Father in Delaware County. (Id.)
Clearly, Mother’s claim that evidence of Mother’s PFA filings against Father
was improperly considered by the trial court because they were outside of the
record is belied by the record and warrants no relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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