Lynn, D. v. Lynn, K.

J-A28039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID EUGENE LYNN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KRYSTLE MARIE LYNN N/K/A : No. 804 MDA 2021
KRYSTLE MARIE MARUSIN :
Appeal from the Order Entered June 3, 2021
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2019 FC-41770
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 1, 2021
Appellant David Eugene Lynn (Father) appeals from the Custody Order
entered in the Civil/Family Division of the Court of Common Pleas of
Lackawanna County on June 3, 2021. Following a careful review, we affirm.
The trial court set forth the facts and procedural history herein as
follows:
This case involves a custody dispute between [Father] and
[Appellee], Krystle Marie Marusin, (hereinafter “Mother”)
regarding their Minor Children, K.L. and M.L. (hereinafter “Minor
Children”).[1] By way of background, the parties were before this
[c]ourt on October 26, 2020, for a hearing on Mother’s Motion for
Appointment of Guardian ad Litem (hereinafter “GAL”) for the
Minor Children, which was filed on October 8, 2020. (Motion
10/08/20). At that time, the parties reached an agreement which
was adopted as an Order of Court and filed on October 27, 2020.
____________________________________________
*Former Justice specially assigned to the Superior Court.
1K.L. was born in September of 2009, and M.L. was born in February of
2016.
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(Stipulated Order, 10/27/20). Pursuant to the Stipulated Order
dated October 27, 2020, the parties have shared legal and
physical custody of the Minor Children. Id. In addition, the parties
agreed to hold Mother’s Motion for GAL in abeyance and Father
agreed to ensure the Minor Children refer to his fiancée by her
first name. Id.
On April 5, 2021, Mother filed a Petition for Emergency
Special Relief wherein she aver[red] concerns with the safety of
the Minor Children at Father’s place of employment. (Petition,
04/5/21). The Honorable Judge Jarbola denied Mother’s Petition
for Emergency Special Relief but scheduled the matter for a
conciliation conference before the Custody Master. (Order,
04/5/21). The parties appeared before the Custody Master on
April 14, 2021 via video conference. (Order, 04/14/21). At that
time, the parties were unable to reach an agreement. Id. The
matter was scheduled for a hearing before this [c]ourt on Mother’s
Petition for a GAL that was held in abeyance and Mother’s denied
Petition for Special Relief on whether the Minor Children are safe
at Father’s place of employment. Id.
A hearing commenced before this [j]urist on June 3, 2021,
via video conference. This [c]ourt heard testimony from Mother
and Father. (Transcript, 06/03/21). After the hearing, this
[c]ourt issued an Order dated June 3, 2021, ordering that the
Minor Children shall not be permitted at either parties’ place of
employment absent a limited circumstance requiring their
appearance. (Order, 06/03/21). In the event the parties must
appear at their place of employment with the Minor Children, the
Minor Children shall not be present at either parties’ place of
employment for longer than an hour in duration. Id.[2] Further,
this [c]ourt ordered that Father shall ensure the Minor Children
refrain from calling Father’s fiancé[e] by terms relating to Mother.
Id. In addition, this [c]ourt appointed Brenda Kobal, Esq. as the
GAL for the Minor Children in this matter. Id.
On June 21, 2021, Father filed a Notice of Appeal of this
[c]ourt’s Order dated June 3, 2021 as well as Errors Complained
on Appeal. (Notice, 06/21/21). On July 8, 2021, Father’s
[c]ounsel provided this [c]ourt with a Docketing Statement
containing issues raised on appeal, which will be addressed by this
[c]ourt below.
____________________________________________
2 Father’s place of employment is a mechanic’s garage. No testimony was
presented pertaining to mother’s workplace.
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Trial Court Opinion, filed 7/20/21, at 1-3.
In his brief, Appellant raises two issues for our review:
1. Whether the [t]rial [c]ourt abused its discretion by ordering
that Appellant/Father shall ensure that the minor children refrain
from calling Father’s fiancée by terms relating to Mother but not
limited to Mom.
2. Whether the [t]rial [c]ourt abused its discretion by ordering
that the minor children shall not be permitted at either parties’
place of employment for longer than an hour duration.
Father’s Brief at 4.
This Court’s standard of review of a child custody order 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.
Graves v. Graves, 2021 WL 4839479 at *3 (Pa.Super. Oct. 18, 2021).
Furthermore:
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.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)).
Father contends the trial court’s determinations as to the name by which
the Minor Children refer to Father’s fiancée and the amount of time that they
are permitted to spend at his place of employment are unsupported by the
record and, therefore, manifestly unreasonable and a gross abuse of
discretion. Father’s Brief at 7, 10. Father reasons that the testimony at the
June 3, 2021, hearing failed to show the Minor Children’s referring to his
fiancée as mom and spending more than one hour in his place of employment
are contrary to the children’s best interest. Id. at 10. Following our review
of the entire record, we disagree.
Mother testified regarding the ways in which she perceived Father had
attempted to alienate the Minor Children from her including his insistence that
their conversations be on speaker phone, his telling the children that Mother
had ended the marriage and cares more for herself than she cares for them,
and his violating the provision in the Custody Order prohibiting the Minor
Children from calling Father’s fiancée mom. N.T. 8, 10-12, 15-16. Mother
also explained that she feared for her children’s safety when they are at
Father’s mechanic’s garage for an entire day. She was especially concerned
for M.L.’s safety not only due to the nature of the materials found in the garage
but also because of M.L.’s friendly and trusting nature with strangers which
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could lead to her being harmed if unsupervised for even a short period of time.
Id. at 21-22.
In his brief, Father stresses he testified that he encourages the Minor
Children to know “their mother is their mother” and that she is a “good
person.” Brief of Appellant at 10 citing N.T. 6/3/21, at 39. Father reasons
this testimony is in contravention to the trial court’s finding that Father’s
encouraging the children to refer to his fiancée as mom fails to promote a
positive relationship between Mother and them.
Ignoring Mother’s testimony, Father also states the record is devoid of
any evidence to support the trial court’s conclusion that such reference
confuses the Minor Children. Father contends that, conversely, the record
illustrates they are comfortable referring to his fiancée in that manner. Brief
for Appellant at 10. In addition, Father believes it is his right as a parent to
have his children periodically present at his place of employment, especially
in light of the global pandemic. He explains that when the children are at his
workplace, he is not performing manual labor and stays in the front office
portion of the establishment with them. Id. at 11-12.
The trial court heard Mother’s testimony as well as Father’s contrary
statements and thoroughly considered the necessary factors for determining
the best interests of the Minor Children prior to entering its June 3, 2021,
Order. The court detailed its reasons for its holdings as follows:
The fundamental consideration in any child custody case is
the best interest of the child. Ellerbe v. Hooks, 416 A.2d 512, 513
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(Pa. 1980). “Upon petition, a court may modify a custody order to
serve the best interest of the child.” 23 Pa.C.S.A. § 5338 (Westlaw
2021). The Pennsylvania Statute, 23 Pa. C.S.A. §5328, sets out
the following specific factors for courts to consider when issuing a
custody order:
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 parry
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.
(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.
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(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 parry's household.
(16) Any other relevant factor.
23 Pa. Cons. Stat. Ann. § 5328 (Westlaw 2021)
During the hearing, Mother testified that Father continues
to allow the Minor Children to call his fianc[é]e “mom” even after
he stipulated in the Order dated October 27, 2020, that he would
ensure the Minor Children call his fiancé[e] by her first name.
(Transcript, 06/03/21, p.12). Mother testified that Father started
having the Minor Children call his fianc[é]e by “mom” after only
dating for seven (7) months. Id. at 13. Mother further testified
that she has attempted to speak to Father regarding this issue
and he became irate and told her, “[I]t's a violation of his rights.”
Id. Father testified that, “My girls need to know that their mother
is their mother, and she's a good person. Like, no matter what, at
the end of the day, that's their mother.” Id. at 41. However, Father
also testified that recently he has not corrected the Minor Children
when they are referring to his fianc[é]e as “mom” and has spoken
to the Office of Youth and Family Services regarding his rights to
have the Minor Children refer to his fianc[é]e as "mom." Id. at 42.
This [c]ourt found that it is in the best interest of the Minor
Children to ensure they are not referring to Father's fianc[é]e as
“mom.” Mother has shared custody of the Minor Children and
plays [a] significant role in their lives. Further, this [c]ourt found
that having the Minor Children refer to Father's fianc[é]e as
“mom” is confusing to them considering their young ages. Father's
actions fail to promote a positive relationship between the Minor
Children and Mother for the emotional well-being of the Minor
Children. Therefore, this [c]ourt issued an Order directing Father
to ensure that the Minor Children refrain from referring to his
fianc[é]e as “mom.”
Mother also testified regarding her concerns for the safety
of the Minor Children at Father's place of employment, his
mechanic’s garage. Mother testified that the Minor Children watch
television in the waiting room of the garage while Father is
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working in the bay area for eight (8) hours with no other
employees at the garage. Id. at 23. Mother also expressed
concerns with the minor child, M.L., having unsupervised contact
with customers in the waiting room area given the fact that she is
a very trusting five-year-old who would leave the garage with a
stranger. Id. at 24. Mother testified that, on at least one (1)
occasion, she has arrived at Father’s garage and the minor child,
M.L., was outside of the waiting room door by herself. Id. at 12.
Mother expressed concerns with Father using his workplace as a
babysitter during his periods of custody and requested this [c]ourt
to limit the time the Minor Children could be at Father's work. Id.
at 25.
Father testified that, “[T]hey (Minor Children) are here
(Father's garage) about once a month if that...They’re not here
unsupervised either.” Id. at 40. However, Father testified that he
is the only person working at his mechanic’s garage and runs the
whole garage by himself. Id. Father testified that, once again, he
contacted the Office of Youth and Family Services about his right
to have the Minor Children at his business. Id.
This [c]ourt found that a mechanic's garage is not an
appropriate place for the Minor Children for eight (8) hours while
Father is working. This [c]ourt believes that it is inappropriate for
a minor child to be at any workplace for eight (8) hours. Therefore,
this [c]ourt determined that it is in the best interest of the Minor
Children to not be permitted at either parties’ place of employment
for longer than an hour duration.
Trial Court Opinion, filed 7/20/21, at 3-6.3
In making the aforesaid arguments, Father essentially asks this Court
to ignore the aforementioned testimony read in its totality and to reexamine
the trial court’s credibility findings made following the hearing which we
cannot do. See Ketterer, supra.____________________________________________
3 The Minor Children’s Guardian Ad Litem submitted a brief in support of
affirmance for this Court’s review and in doing so she indicated that she
concurs with the trial court’s legal analyses and conclusions. See Brief in
Support of Affirmance Submitted by Guardian Ad Litem for Minor Children K.L.
& M.L.
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Upon our review, we conclude that the trial court did not abuse its
discretion in determining it is in the best interest of the Minor Children to
ensure they are not referring to Father’s fiancée as mom and that they are
not spending more than one hour at either parent’s place of employment.
Thus, we affirm the Order from which this appeal arose.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2021
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