S.S. v. T.J.

J-A30012-18
2019 PA Super 182S.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
T.J. : No. 653 WDA 2018
Appeal from the Order April 26, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): FD09-002095-008
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.
OPINION BY SHOGAN, J.: FILED JUNE 10, 2019
Father, S.S., appeals pro se from the order denying his petition for
modification of custody with regard to his two daughters, C.M.S., born in June
of 2006, and C.B.S., born in April of 2009 (collectively “Children”), who are
now living with their Mother, T.J., in South Carolina. We affirm.
The trial court set forth the background of this case as follows:
[Mother and Father married in 2001.] The parties have
been divorced since 2010. [Initially, the parties shared custody
of Children, with Mother having primary physical custody.] They
initially struggled to make their way as a separated family,
resulting in Mother filing a number of Protection from Abuse
petitions after custody exchanges became confrontational.
[Mother sought to relocate with Children to South Carolina with
her fiancé.] By the time of the hearing on Mother’s Relocation
petition in September of 2017, however, the parties had gotten
past the emotions which had led to physical altercations and,
instead, were focused on what was best for the children.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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At the time of the relocation hearing, [C]hildren were in
Mother’s primary care. Father exercised weekend custody and
played a major role in the lives of his children. Mother proposed
relocation in order to follow her fiancé who had been transferred
to South Carolina and to advance her career as a real estate
agent. After [the] hearing, [the trial court] determined that
relocation with Mother was in [C]hildren’s best interest, with
liberal contact and custody being provided for Father. [The trial
court’s September 27], 2017 Order awarded Mother primary
physical custody during the school year, with Father exercising
summer custody as well as long weekends and holidays.
The Order further provided [C]hildren daily phone, text, or
Skype contact with the non-custodial parent, which contact was
to be encouraged and not interfered with by the parent exercising
custody. The Order required the parents to use common sense
when scheduling calls and provided that the calls should not be
“excessively frequent or too long in duration that they disrupt the
child’s schedule.” [Father did not take an appeal from the
September 27, 2017 order.]
In late November of 2017, Father initiated an investigation
by the South Carolina [D]epartment of Social Services, alleging
the girls were being neglected and mistreated. Father alleged he
learned of the abuse from his children. ([N.T., 4/25/18, at] 4).
The accusations were determined to be unfounded and the case
was closed. ([Id. at] 4[8]-49).
In his Petition for Modification of Custody [filed on December
7, 2017], Father alleged that Mother was improperly limiting his
phone contact with the girls to 30 minutes in retaliation for the
child abuse investigation. ([Id. at] 5). He also alleged that the
girls are fearful, are being beaten by Mother, and are intimidated
and threatened by her fiancé. ([Id. at] 5-9).
At the hearing on this matter, Father appeared pro se and
Mother was represented by counsel. Mother and the girls testified
by phone from South Carolina. [On April 26, 2018, the trial court]
entered an Order denying Father’s modification petition. [The trial
court] found [its] analysis of both the relocation factors of 23
Pa.C.S.A. 5337(h) and the custody factors of 23 Pa.C.S.A. 5328
only several months before this hearing were still applicable. [The
trial court] did not find Mother to be in contempt, but directed that
telephone calls could exceed 30 minutes “using common sense.”
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[The trial court] also directed Mother to enroll both girls in
counseling to help them cope with their issues regarding
separation from the Father.
Trial Court Opinion, 7/2/18, at 2-3. Father filed this timely pro se appeal.
Both Father and the trial court complied with Pa.R.A.P. 1925.
Father presents the following issues for our review:
A. WHETHER THE LOWER COURT ABUSED ITS DISCRETION AND
COMMITTED AN ERROR OF LAW IN WEIGHING THE FACTORS BY
GRANTING THE MOTHER PRIMARY CUSTODY OF THE CHILDREN?
B. WHETHER THE LOWER COURT PROPERLY APPLIED THE
FACTORS IN ANALYZING THE BEST INTERESTS OF THE
CHILDREN?
C. WHETHER THE LOWER COURT DEVIATED FROM APPLICABLE
STANDARDS IN ESTABLISHING A SCHEDULE OF WHEN THE
FATHER WOULD BE ABLE TO HAVE [PHYSICAL] CUSTODY OF THE
CHILDREN INDIVIDUALLY AND TOGETHER?
Father’s Brief at 5.
Before addressing the merits of Father’s issues, we must determine
whether those issues are properly before us. The trial court has asserted that
Father’s Pa.R.A.P. 1925(b) statement is not concise and required the trial
court to guess at the issues being presented. We agree.
A concise statement of errors complained of on appeal must be specific
enough for the trial court to identify and address the issues the appellant
wishes to raise on appeal. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.
Super. 2006) (quoting Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super.
2006)). Pennsylvania Rule of Appellate Procedure 1925 provides that a Rule
1925(b) statement “shall concisely identify each ruling or error that the
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appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). See also
Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. Super. 2000) (stating
that “[a] claim which has not been raised before the trial court cannot be
raised for the first time on appeal”).
This Court has considered the question of what constitutes a sufficient
Pa.R.A.P. 1925(b) statement on numerous occasions and has established that
“[an] appellant’s concise statement must properly specify the error to be
addressed on appeal.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.
Super. 2011). “[T]he Rule 1925(b) statement must be specific enough for the
trial court to identify and address the issue an appellant wishes to raise on
appeal.” Id. (brackets, internal quotation marks, and citation omitted).
The compulsory requirement of adhering to Pa.R.A.P. 1925 is captured
in the following excerpt from Kanter v. Epstein, 866 A.2d 394 (Pa. Super.
2004):
In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (Pa.
1999), the Pennsylvania Supreme Court specifically held that
“from this date forward, in order to preserve their claims for
appellate review, [a]ppellants must comply whenever the trial
court orders them to file a Statement of Matters Complained of on
Appeal pursuant to [Pennsylvania Rule of Appellate Procedure]
1925.” Lord, 719 A.2d at 309. “Any issues not raised in a
1925(b) statement will be deemed waived.” Id. This Court
explained in Riley v. Foley, 783 A.2d 807, 813 (Pa. Super. 2001),
that Rule 1925 is a crucial component of the appellate process
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because it allows the trial court to identify and focus on those
issues the parties plan to raise on appeal. This Court has further
explained that “a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent to no Concise Statement at all.” Commonwealth v.
Dowling, 778 A.2d 683, 686-[6]87 (Pa. Super. 2001). “Even if
the trial court correctly guesses the issues Appellants raise[] on
appeal and writes an opinion pursuant to that supposition the
issues [are] still waived.” Commonwealth v. Heggins, 809 A.2d
908, 911 (Pa. Super. 2002).
Kanter, 866 A.2d at 400.
Our law further makes clear that compliance with Pa.R.A.P. 1925(b) is
not simply a matter of filing any statement. Rather, the statement must be
concise and sufficiently specific and coherent as to allow the trial court to
understand the allegation of error and offer a rebuttal. These requirements
are evident in the following language from Dowling:
When a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. When an appellant fails
adequately to identify in a concise manner the issues sought to be
pursued on appeal, the trial court is impeded in its preparation of
a legal analysis which is pertinent to those issues.
. . . While Lord and its progeny have generally involved situations
where an appellant completely fails to mention an issue in his
Concise Statement, for the reasons set forth above we conclude
that Lord should also apply to Concise Statements which are so
vague as to prevent the court from identifying the issue to be
raised on appeal. In the instant case, [a]ppellant’s Concise
Statement was not specific enough for the trial court to identify
and address the issue [a]ppellant wished to raise on appeal. As
such, the court did not address it. Because [a]ppellant’s vague
Concise Statement has hampered appellate review, it is waived.
Dowling, 778 A.2d at 686-687 (citations and quotation marks omitted).
Moreover, as we stated in Reeves:
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There is a common sense obligation to give the trial court notice
as to what the trial court should address in its Rule 1925(a)
opinion. While there is a middle ground that [an appellant] must
travel to avoid having a Rule 1925(b) statement so vague that the
trial judge cannot ascertain what issues should be discussed in the
Rule 1925(a) opinion or so verbose and lengthy that it frustrates
the ability of the trial judge to hone in on the issues actually being
presented to the appellate court, see Kanter v. Epstein, 866
A.2d 394 (Pa. Super. 2004), that is not an onerous burden to place
on [an appellant]. It only requires using a little common sense.
Reeves, 907 A.2d at 2-3.
In addition, we note that, “[a]lthough this Court is willing to liberally
construe materials filed by a pro se litigant, pro se status confers no special
benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d 496, 498
(Pa. Super. 2005) (citing Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.
Super. 2003)). “To the contrary, any person choosing to represent himself in
a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.” Adams, 882 A.2d at 498
(citing Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super. 1996)).
In essence, the purpose of requiring a concise statement of matters
complained of on appeal under Pa.R.A.P. 1925(b) is to allow the trial court to
easily discern the issues an appellant intends to pursue on appeal and to allow
the court to file an intelligent response to those issues in an opinion pursuant
to Pa.R.A.P. 1925(a). Father’s Pa.R.A.P. 1925(b) statement fails in this
regard.
The trial court offered the following comments regarding Father’s
Pa.R.A.P. 1925(b) statement, which compels our conclusion:
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Father filed his Notice of Appeal on May 22, 2018 and filed
what he styled as his Statement of Matters Complained of on
Appeal. His Statement, rather than being concise or directing the
[c]ourt to what Father asserts are errors or abuses of discretion,
is a recitation of Father’s testimony, his interpretation of the
evidence presented at the hearing, and his conclusions as to what
that testimony and evidence “proved.” Accordingly, for the
purpose of drafting this Opinion, I assume that Father believes my
decision was against the weight of the evidence and an abuse of
my discretion.
Trial Court Opinion, 7/2/18, at 4 (footnote omitted).
Our review of the certified record reflects that Appellant’s Pa.R.A.P. 1925(b)
statement contains four points that, as the trial court aptly stated, amount to
a recitation of Father’s testimony, his interpretation of the evidence presented,
and his conclusions as to what that testimony and evidence proved.
Specifically, Father offered the following in his Pa.R.A.P. 1925(b) statement:
A. April 25th, 2018 a final order in the family court from a trial for
custody modification request of an existing custody relocation
order from September of 2017 was entered not granting a
modification.
B. On April 25th in the trial referenced, it was proven that [Mother]
beats the children for punishment and the child youth services of
South Carolina were contacted by the father. The children also
advised [the trial court] that they are afraid of [Mother] due to
her beating them and that they are uncomfortable with [Mother’s]
fiancé [R.], entering their bedroom without knocking and yelling
at them to discipline them. It was also proven that before last
year, [Mother] nor the children lived with [R.]. The children
advised [the trial court] that they want more phone time and
[C.B.S.] also said she wants to see her father more often. The
court was made aware that [C.B.S.] pulled chunks of her hair out
of her head due to being upset with treatment from her mother.
The court was also made aware that [C.B.S.] said she thought
about hurting herself due to the treatment from her mother. It
was proven that [Mother] stopped critical counseling for [C.M.S.],
that is needed for her anxiety. [Mother] testified she is not a
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doctor. All the issues listed in this paragraph contradict the
standing order: factors 9 & 10 listed maintaining a stable, loving
and nurturing relationship with the children. The children are
receiving much more punishment then they ever have, since being
relocated to South Carolina. The facts and transcripts show the
move to South Carolina is not beneficial to the children.
C. In the trial it was also proven that [Mother] used to let the
children call and text their father anytime and stay on the phone
as long as they wanted before the day in November when the
South Carolina child youth services started to investigate her for
suspected abuse. Out of retaliation [Mother] began limiting phone
time to only 30 minutes per day and only between 7-8 pm
between the children and their father, even on weekends. The
children are not allowed to accept calls from their father outside
of the 30-minute timeframe and do not have time to speak to
other family members due to the time constraints. [Mother] also
started taking their phones, bought by the father, so they could
not continue liberal phone contact as the order states. The
confiscation of the phones and time limits also defy the order for
the availability to text anytime and skype or video chat with their
father. This shows interference and clearly that the mother is not
maximizing their contact time nor foster a relationship with the
children and other parent. The current order also states the
mother is to encourage contact: I testified that [Mother] makes
the children abruptly hang up exactly at 30 minutes. It was also
proven the defendant tried to cut short visits for the children to
their father. The current order also states the special needs of the
children are to be met, it was proven otherwise that the children
are not having their needs considered, such as [C.M.S.’s] anxiety
is being ignored and [Mother’s] fiancé yelling at them often upsets
both.
D. The court was made aware that the children used to see their
grandmother everyday and in the order, she was to visit the
children often but has not visited them once since they moved.
Factor 5 listed in the current standing order.
Pa.R.A.P. 1925(b) Statement, 5/22/18, at 1-2.
The ultimate result of Father’s presentation is that any issues Father
wished to raise in this appeal are lost in the midst of the rambling narration
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laid out in his Pa.R.A.P. 1925(b) statement. In short, Father’s statement is
neither concise nor sufficiently specific and coherent to allow the trial court to
understand the specific allegations of error and offer a rebuttal. Rather, due
to the presentation of Father’s Pa.R.A.P. 1925(b) statement, the trial court
was compelled to guess at the issues that Father sought to preserve and raise
on appeal. However, even if the trial court correctly guessed the issues Father
wanted to raise, and wrote its opinion pursuant to that supposition, the issues
are waived. Kanter, 866 A.2d at 400. Given the foregoing, we conclude that
Father’s challenges to the trial court’s order denying modification are waived.
Therefore, we affirm the order.
Even if we were to ignore Father’s waiver of the issues due to his
inadequate Pa.R.A.P. 1925(b) statement and address the claims in his brief,
we would, nevertheless, affirm the trial court’s order.1 Basically, Father’s
____________________________________________
1 We note that, within the argument portion of his brief, Father has
intermingled claims attempting to challenge the propriety of the trial court’s
order permitting Mother to relocate. However, review of such claims is
precluded. It is undisputed that a notice of appeal must be filed within thirty
days of a disputed order. Pa.R.A.P. 903(a). We are mindful that, regarding
late attempts to challenge a support order, we have held that a party may not
use a modification petition as a substitute for an appeal by attempting to
relitigate matters adjudicated by the underlying support order. Florian v.
Florian, 689 A.2d 968, 971-972 (Pa. Super. 1997). See Boullianne v.
Russo, 819 A.2d 577, 580 (Pa. Super. 2003) (explaining that a petition to
modify an order of support cannot be a substitute for an appeal); Beegle v.
Beegle, 652 A.2d 376, 378 (Pa. Super. 1994) (stating “[a]llegations of error
in the factual findings of a lower court are properly addressed by filing
exceptions and an appeal to this Court, not by filing a petition to modify in the
same court that rendered the order.”). Likewise, a party may not use an
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three arguments in his appellate brief rest on the concept that, in light of the
evidence that Father contends is in his favor, the trial court abused its
discretion in denying modification.
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.
§§ 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).
We have stated:
____________________________________________
appeal from the disposition of a petition for modification of custody as a
substitute for an appeal from an underlying order for the purpose of
relitigating matters pertaining to the underlying order. Therefore, in order to
challenge a relocation order, the party must take a timely appeal from the
order.
Our review of the certified record reflects that the trial court entered its
custody order permitting Mother to relocate on September 27, 2017. It is
undisputed that Father did not file an appeal from that order. Because Father
did not pursue a timely appeal of the trial court’s relocation order dated
September 27, 2017, he may not do so now. Therefore, this Court is without
jurisdiction to hear any issue related to appropriateness of that order. Hence,
we are constrained to decline review of any issue as it pertains to the propriety
of the order dated September 27, 2017.
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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.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated
the following regarding an abuse of discretion standard:
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
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.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern is
the best interests of the child. 23 Pa.C.S. §§ 5328, 5338. Section 5323 of
the Act provides for the following types of custody awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
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(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323(a).
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. 23 Pa.C.S.
§ 5338. Section 5328(a) sets forth the sixteen best-interest factors that the
trial court must consider. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.
2011). Trial courts are required to consider “[a]ll of the factors listed in
section 5328(a) ... when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d
647, 652 (Pa. Super. 2011) (emphasis in original).
Further, we have explained:
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, “section
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). . . .
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, [620
Pa. 710], 68 A.3d 909 (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, 822-823 (Pa. Super. 2014).
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We have reviewed the briefs of the parties, the relevant legal authority,
the certified record, and the trial court’s opinion. In addressing Father’s
challenges to the weight of the evidence supporting the trial court’s denial of
modification of custody, the trial court offered the following discussion:
As noted above, I presided over the trial on Mother’s Petition
to Relocate less than a year before the instant matter came before
me. I heard from both parties and interviewed the two girls at that
time as well as in the instant hearing.
At the instant hearing, Father testified that Mother interferes
with his communications with the children to retaliate for him filing
a child abuse complaint against her. He further testified that the
girls are beaten by Mother and neglected in general, including the
cessation of emotional counseling which the younger child had
been receiving. (TR. p. 8).
I interviewed the girls without their Mother present to
determine if Father’s allegations of abuse were well founded. The
girls spoke to me by phone with the younger child doing most of
the talking. The children testified that Mother and her fiancé “yell”
and that they find this scary (TR. p 23), but that nobody in the
home is “being mean” to them (TR. p. 33). The younger child
testified that her Mother had “slapped” her on one occasion. The
children essentially testified that everything is going well but that
they miss Father and wish they could be with him more. Both
acknowledged that, if they lived with Father, they would likewise
miss Mother.
Mother testified that she does not interfere with Father’s
calls out of retaliation but that she sets what she feels to be
reasonable limits on the children’s calls and texts. (TR. p. 50).
She testified that she makes certain that the children have a daily
call with Father. (TR. p. 66-67). She further testified that when
the children misbehave, she takes away their access to all
electronics, including phone, television, and computers, as
punishment. (TR. p. 50). Father introduced screen shots of calls
and texts to demonstrate Mother’s interference but those screen
shots revealed phone calls of over 40 minutes and texts which
were occurring late into the evening on school nights. I did not
find that Mother’s decision to limit such contact was unreasonable
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or in contravention of my Order which required that contact be
exercised with common sense.
Mother testified that she employs corporal punishment
when the children refuse to comply with her directives. Mother is,
as I noted at the previous hearing, more of a disciplinarian than
Father. I found from Mother’s testimony and that of the children
that Mother may be overly strict with the children at times, but
not that she is abusive or that the children are being abused or
neglected. I may not agree that Mother’s use of corporal
punishment is her best course of action but I did not find that
there was any evidence of behavior which would constitute abuse.
Based on the totality of the evidence presented, I did not
find that Father had met his burden of presenting evidence which
would have justified modifying the present custodial arrangement
or holding Mother in contempt. Under cross examination; Father
testified that he has exercised custody of the children for every
holiday and long weekend contemplated by the September 27,
2017 Order and that he speaks with the children every day.
The girls are respectful and good students and appear to be
doing well, although they both naturally feel unhappiness as a
result of separation from their Father. That unhappiness,
however, does not appear to be as dire as Father asserts, but is,
rather, the type of unhappiness that children in separated families
often face.
In particular, the younger girl, who has always suffered from
anxiety, testified that her anxiety caused stomach issues have
gotten better since the move. Mother testified that the child is
using appropriate coping mechanisms which she learned from
therapy and doing quite well with her anxiety. (TR. p. 60). Mother
also testified that, contrary to Father’s assertions, she ended
therapy for the younger girl at the recommendation of Child’s
therapist, not out of neglect. (TR p. 50). After speaking with the
girls, I felt they could both benefit by being given some additional
coping skills from a professional for their issues surrounding the
separation from Father and, accordingly, ordered Mother to
engage a therapist for them.
I did not find that Mother is unreasonably interfering with
Father’s communication with the children; I found that she may
be too rigid with regard to the time constraints placed on phone
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calls. I, therefore, directed that those calls can be longer than 30
minutes, while again stressing common sense be used.
In any relocation case, there will be a period of adjustment
as well as emotional pain caused by the physical distance between
one parent and the children. This case is no different. I
sympathize with Father’s concerns for the well being of his
children from whom he is separated. The evidence, however, did
not demonstrate that the children are being neglected or abused
as Father has asserted or that Mother is thwarting his relationship
with the girls.
Trial Court Opinion, 7/2/18, at 4-7.
After a careful review of the record, we reject Father’s invitation to
substitute our judgment for that of the trial court. We remind Father that 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., 45 A.3d at 443. Therefore, had we not found Father’s issues to be
waived, we would determine that the trial court’s conclusions do not involve
an error of law and are not unreasonable as shown by the evidence of record.
The trial court adequately explained its findings, and they are supported by
the competent evidence in the record.2 Hence, we would sustain the trial
court’s determination pursuant to C.R.F.
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2 To the extent Father alleges that the trial court erred in failing to address
the sixteen factors set forth in 23 Pa.C.S. § 5328(a), we observe that such
analysis was not required by the trial court in this particular instance. Father
is correct that a trial court must analyze the Section 5328(a) custody factors
when making an award of custody. However, this Court has explained that a
discussion of each factor is not necessary where the trial court does “not
change the underlying award of custody” but, rather, “modifie[s] a discrete
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custody-related issue[.]” M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super.
2014).
In M.O., the parties resolved a discrete issue pertaining to vacation
custody time and transportation, and whether the father was required to be
off from work while the children stayed with him, with limited testimony taken
in chambers. The trial court then issued an order without examination of the
sixteen statutory factors. Id. at 1060. Mother appealed, arguing that the
court erred in refusing to expressly consider each of the sixteen factors in
making its decision, and in failing to provide rationale for its decision. Id. at
1061. On appeal, this Court rejected the mother’s argument, noting that the
court had made no award of custody, or even changed the amount of custodial
time either party had with the children, but addressed a subsidiary issue;
accordingly, we found that the trial court was not bound to address the sixteen
statutory factors or its reasons for the award. Id. at 1062-1063. Specifically,
the Court in M.O. stated:
The plain language of Section 5328(a) requires that the
sixteen enumerated factors be considered when the court is
determining a child’s best interest for the purpose of making an
award of custody. 23 Pa.C.S.A. §§ 5323(a), 5328(a). By
contrast, while the court must consider the child’s best interest
when modifying a custody order, the modification provision does
not refer to the sixteen factors of Section 5328. 23 Pa.C.S.A.
§ 5338(a). The cases in which we have applied Section 5328(a)
have involved the award of custody as defined by Section 5323(a)
or have involved a modification that also entailed a change to an
award of custody.
Id. at 1062 (footnote omitted). Subsequently, in A.V., this Court narrowed
the holding of M.O., finding that M.O. was applicable only to cases in which
custody was not directly modified. Id. at 824 n.4.
The instant order entered on April 26, 2018, did not modify the existing
custody order. Instead, the order directed Mother to enroll Children with a
counselor and instructed that phone calls may be longer than thirty minutes
in length. Order, 4/26/18. Hence, this situation is similar to M.O., in that the
trial court did not modify custody, but clarified discrete subsidiary issues that
arose under the prior custody order. M.O., 85 A.3d at 1062-1063; cf. A.V.,
87 A.3d at 824 n.4. Therefore, the trial court was neither required to discuss
the sixteen custody factors, nor to delineate its reasoning on the record.
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J-A30012-18
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2019
____________________________________________
Consequently, even if we had not determined Father has waived all issues, we
would have concluded that there was no merit to this claim of error.
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