A.C. v. A.C.

J-A23023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
A.C.,
Appellee No. 360 WDA 2014
Appeal from the Order entered January 31, 2014,
in the Court of Common Pleas of Armstrong County,
Civil Division, at No(s): 2009-0713-CIVIL
BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 25, 2014
inter alia, granted parties shared legal custody of their three children
affirm.
The trial court convened a one-day custody trial on November 19,
2013. The trial court detailed its factual findings as follows:
Mother and Father are the parents of three minor children:
[B.C. (DOB: 9/01), J.C. (DOB: 3/04), and L.C. (DOB 12/06)]
marriage, which ended by a decree of divorce entered December
4, 2012. The parties physically separated in March 2009 and
about April 17, 2009. The Consent Order provides that Mother
shall have primary physical custody of the Children, and Father
shall have partial physical custody three weekends each month
from Friday at 6:00 p.m. until Sunday at 8:00 p.m. Each party
also is entitled to one uninterrupted week of custody during the
summer, and the holidays are shared equally. Father filed his
J-A23023-14
Petition for Modification of Custody on or about January 18,
2013, but the parties continue to follow the terms of the Consent
Order.
Mother is 31 years old and currently resides with her
Heights, Pennsylvania, where Mother and the Children have
resided since 2010. Mother also has a child with Mr. U[.]
([C.U.]). Mother is employed at the Get Go convenience store in
Sarver, Pennsylvania, where she works approximately 32 hours
per week, mostly at night. She also works weekends on
does not have a vehicle. If she is working at a time when she
has custody of the Children, Mr. U[.] provides childcare. Mother
is content with the current custody schedule, although she would
like the option to have custody of the Children when Father is at
work. Mother has driven on several occasions without a dr
license, including to transport the Children, but this has not
occurred for a year or more. Mother drinks alcoholic beverages
only on occasion. She and Mr. U[.] are living together but are
not married or engaged.
her moved with the
Children to Ford City to stay with her mother, [K.K.]. She then
resided in an apartment in Ford City and enrolled the school-
aged Children at Lenape Elementary School. Mother then moved
to Natrona Heights to reside with Mr. U[.] and enrolled the
Children in school in the Highlands School District. Mother and
Mr. U[.] then separated, and Mother moved with the Children to
the Marion Center area, enrolling the Children in that school
district. Mother moved in with her then-
she resided for 2 months. While the Children were enrolled in
matters. In 2010, Mother then moved back to Natrona Heights
to her current residence with Mr. U[.].
Mother left the marital residence in March 2009 because of
threatened her with a hunting rifle. She later withdrew the
action to permit Father to keep his hunting firearms. She also
filed a PFA action immediately after leaving the residence in
2009. Mother alleged that Father had choked her in the
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her has had
suicidal tendencies in the past.
Mother has encouraged the Children to become involved in
extra-curricular activities in the Highlands School District, but
reports that Father would not transport the Children to weekend
activities because it interfered with his custody time. The
Children are involved in band and chorus, but do not participate
in sports or other activities. [B.C.] was enrolled in boy scouts at
one point, but ceased participation because he could not attend
a Saturday activity d
Both [B.C.] and [J.C.] have Individualized Education
[J.C.] also has a speech impediment and has been diagnosed
with ADHD. Mother has resisted medicating [J.C.] for the
condition because she believes that ADHD is overly-diagnosed.
that [J.C.] was having increased difficulty in school, she agreed
to have him re-evaluated.
J[.U.] is 51 years old. He resides with Mother in Natrona
Heights, Pennsylvania with the Children and his own child to
Mother, [C.U.]. Mr. U[.] works at Allegheny Steel Distributors,
where he has been employed for many years. His working hours
generally are from 8:00 a.m. to 5:00 p.m., Monday through
Friday. He has a step-son and a biological daughter from his
previous marriage. Mr. U[.] smokes cigarettes on a regular
believe that he drinks excessively. He was arrested in 2011 for
Driving Under the Influence. He received Accelerated
Rehabilitative Disposition, the terms of which he completed in
2012. Mr. U[.] currently is married to another woman, but their
divorce is pending.
s childcare
abilities are his anger-management problems and the fact that
he reportedly has been emotionally unstable in the past,
threatening suicide in front of Mother on at least one occasion.
She also believes that Father is emotionally distant from the
Children.
former marital residence in Homer City, Pennsylvania with his
fiancée, K[.S.]. Father and Ms. S[.] plan to get married on June
7, 2014. Father has no other children. [B.C.] and [J.C.] share a
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Father is employed with Rosebud Mining Company, where he
works during the week and every other Saturday.
He believes that Mo
schoolwork and educational development. Father introduced
progress reports of the Children indicating that they have
difficulty completing assignments. Both [B.C.] and [J.C.] have
IEPs and Mother has, on at least one occasion, not attended the
IEP meetings and was not available by telephone. Father also
believes that Mother has been negligent in making sure that the
Children regularly attend doctor and dentist appointments.
Father contends that he has taken the Children to all of their eye
doctor and dental appointments because Mother would not do
so. He also claims that Mother failed to ensure that the Children
received all of their regularly-scheduled immunizations.
Father further contends that Mother lacks sufficient
discipline skills with the Children. Father believes that Mother
uses corporal punishment too often and leaves the Children
ADHD should be medicated. He denies having ever choked
Mother or held a gun to her head and does not believe that any
all parenting duties along with his fiancée, Ms. S[.]. Father
cooks, does laundry, cleans, helps the Children with their
schoolwork when they bring it, and engages in sporting activities
and they assist him in providing childcare on a regular basis.
K[.S.] is 31 years old an
with Father at his residence in Homer City, Pennsylvania. She
initially moved in with Father in July 2009, and then moved out
in 2010. She completed post-secondary education at Indiana
University of Pennsylvania and graduated with a degree in
sociology in 2007. She has never been married and has no
children. She reports having a good relationship with the
Children and is willing to significantly modify her lifestyle if
Father is awarded primary physical custody. Ms. Smail works at
been employed for over 10 years. She currently is a front-end
manager and generally works during the week and occasionally
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on Saturdays. She provides childcare for the Children when
will provide childcare.
[B.C.] is 12 years old and resides primarily with Mother in
Natrona Heights, Pennsylvania. He attends Highlands Middle
School in Natrona Heights. He enjoys hunting with Father and
boy scouts. [B.C.] stated Mr. U[.] often smokes in the same
room with him and that the smoke affects his asthma. He
currently uses an inhaler to help with his respiratory problems.
[B.C.] gets along moderately well with Mr. U[.], but admits that
he gets along better with Ms. S[.]. [B.C.] would rather spend a
majority of his time with Father. [B.C.] cannot recall any
incidents of violence or abuse between Mother and Father.
[J.C.] is nine years old and is in the fourth grade at
Grandview Elementary School in Tarentum, Pennsylvania. [J.C.]
[J.C.] also likes Ms. S[.] better than Mr. U[.]. [J.C.] stated that
Mother uses her belt as a form of discipline when the boys are
misbehaving.
The [trial c]ourt did not interview [L.C.].
Trial Court Memorandum, 1/31/14, at 1-8.
On January 31, 2014, the trial court issued its memorandum and order
awarding the parties shared legal custody, with Father having primary
physical custody. Mother filed a timely appeal and concise statement of
matters complained of on appeal, in which she presents the following issues:
1. DID THE TRIAL COURT ERR IN FINDING THAT THE
BEST INTEREST OF THE MINOR CHILDREN WAS FOR
FATHER TO HAVE PRIMARY CUSTODY?
2. DID THE TRIAL COURT ERR IN APPLYING THE SIXTEEN
FACTORS SET FORTH IN §5328 OF THE PENNSYLVANIA
CHILD CUSTODY LAW?
3. DID THE TRIAL COURT ERR IN RENDERING DECISIONS
NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE
AND FINDINGS OF RECORD?
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Withi
Id. at
6. Although Mother has three sections in the argument portion of her brief,
the second and third sections merely incorpo
Id
issues together.
This Court has summarized our scope and standard of review in
custody cases as follows:
[O]ur scope is of the broadest type and our standard of
review 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 first hand.
or inferences from its factual findings. Ultimately, the test
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.
E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (citation omitted).
Further, with any child custody case, the paramount concern is in the
best interests of the child. J.R.M. v. J.E.A., 33 A.2d 647, 650 (Pa. Super.
2011) (citation -by-case
assessment of all the factors that may legitimately affect the physical,
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intellectual, moral and spiritual well- Id. Several such
factors are enumerated at 42 Pa.C.S.A. section 5328(a)
listed in section 5328(a) are required to be considered by the trial court
J.R.M., 33 A.2d at 652. As noted above,
the weight accorded each of these factors is for the trial court. E.D., supra.Here, Mother takes issue with the weight the trial court assigned to
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Id. at 15. We disagree.
Our review of the 188 pages of the notes of testimony from the
memorandum supporting its custody award, the trial court properly
observed:
The primary concern in any custody case is the best
interests of the child. This standard considers all factors that
moral and spiritual well-
custody arrangements has the burden to show that modification
an obligation to consider all relevant factors that could affect the
-
Trial Court Memorandum, 1/31/14, at 8-9 (citations omitted).
The trial court then discussed its factual findings as they relate to each
custody factor enumerated at 23 Pa.C.S.A. § 5328(a). After considering
each of these factors, the trial court concluded:
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Considering all of these factors together, and giving
best interest would be served by the parties continuing to
share legal custody of the Children. We further find that it
est interest for Father to
maintain primary physical custody, with liberal partial
custody to Mother.
Trial Court Memorandum, 1/31/14, at 15.
The trial court explained:
Although we do not doubt that Mother cares deeply for the
Children, and can provide for their basic daily needs, we believe
that Mother has demonstrated a pattern of conduct over the past
several years that is fraught with poor decision-making. Mother
has not provided the Children with a stable, consistent, secure
living environment. Instead, she seems to make decisions
involving the Children based on how it will affect her personal
doubt are due in no small part to their having been exposed to
several different schools, school districts, and father-figures over
the past several years. Moreover, Mother currently is living with
Mr. U[.], who is married himself. Mother has a child with Mr.
U[.], but is neither engaged nor planning to marry him.
Father, on the other hand, has lived in the former marital
residence consistently and has maintained a constant
relationship with Ms. S[.], who he will marry in just a few
months. Father also is gainfully employed. The two Children
who the Court interviewed expressed a preference to reside with
not perfectly clear in articulating their reasons for preferring to
live with Father, but they were very clear in indicating that they
have a much better relationship with Ms. S[.] than with Mr. U[.].
to provide additional childcare during times when Father works
or is otherwise unavailable.
Neither party presents a direct physical, psychological, or
gainful employment, stable and functional household, and
consistent lifestyle will provide the Children with a living
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arrangement in which their behavioral, educational, and
emotional needs can be better served. Moreover, Mother does
own her home. Father has demonstrated a willingness and
everyday needs, including
their medical care, which it seems was neglected at times by
Mother.
In sum, we find that Father is more capable going forward
of providing the Children with the consistent, supportive,
financially-secure living environment that they will need to
educational and medical needs as they grow older. We do not
make any findings that either parent is incapable of providing
childcare for the Children or poses a threat to them. We simply
find that an analysis of the relevant custody factors supports an
award of primary physical custody to Father.
Trial Court Memorandum, 1/31/14, at 16-18.
Our review of
stability and continuity for the Children in awarding Father primary custody.
Although Mother takes issue with the weight the trial court accorded the
evidence, we may not substitute our judgment for that of the trial court.
E.D., supraOrder affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
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