G.F.-K. v. F.X.M

J-A30010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
G.F.-K. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
F.X.M.
Appellee No. 1489 EDA 2014
Appeal from the Order April 14, 2014
In the Court of Common Pleas of Montgomery County
Domestic Relations at No(s): 2011-34372
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 17, 2014
G.F.-K. (“Mother”) appeals from the order of the Court of Common
Pleas of Montgomery County entered on April 14, 2014, which provided,
inter alia, that Mother and F.X.M. (Father) would share legal and physical
custody of their sons, J.M., born in 2006, and W.M., born in 2008. After
careful review, we affirm.
On December 14, 2011, Mother filed a complaint seeking shared legal
and physical custody of the children. The parties entered into a temporary
interim agreed order on February 2, 2012, which provided for shared legal
custody, and established a schedule whereby each parent would have
physical custody every other week. On December 14, 2012, the trial court
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A30010-14
held a hearing on Mother’s custody complaint, but Father and his counsel
failed to appear. The court then issued an order granting shared legal
custody to the parties, and primary physical custody to Mother, with Father
having primary physical custody every other weekend on Saturday from
10:00 a.m. until 8:00 p.m., and Sunday from 8:00 a.m. until 6:00 p.m.
Father also had primary physical custody every Wednesday from after school
until 8:00 p.m.
Father filed an emergency petition for rehearing on December 20,
2012, requesting a protracted custody hearing. He averred that he did not
appear at the December 14, 2012 hearing because prior counsel informed
him that he need not attend, and that prior counsel would appear on his
behalf. However, prior counsel failed to appear.
On January 9, 2013, the court ordered an expedited custody
conciliation conference, and on November 25, 2013 and January 22, 2014,
the court held hearings on Father’s emergency petition for rehearing. At the
hearings, Mother expressed her concerns that the week on/week off
schedule would separate the children from their older brother P.F., who is
Mother’s son from a previous relationship. Mother also testified about her
concerns regarding the presence of mold and lack of cleanliness in Father’s
house. By order filed April 14, 2014, the trial court granted shared legal
custody to the parties, established a comprehensive vacation and holiday
schedule, and included the following provision:
-2-
J-A30010-14
Mother and Father will alternate physical custody of the children
on a weekly basis. Within seven (7) days of the date of this
Order, Father shall permit Mother to walk through Father’s
residence, as previously discussed by the parents. Mother is to
notify Father within forty-eight (48) hours of the walk through as
to whether or not, based on her walk through, she is requesting
that Father have his residence inspected for mold by a
professional inspector. If notified by Mother within forty-eight
(48) hours, Father shall have the residence inspected for mold.
If the inspection indicates that there is mold in the residence,
Father is to comply with all remedial measures to eliminate the
mold forthwith.
Once the above paragraph has been complied with, the parents
will begin shared physical custody of the children on Sunday at
6:00 p.m., and will continue to alternate custody of the children
every Sunday thereafter.
Order, 4/11/14, at 9.
On appeal, Mother raises the following issues for our review:
1. Were [sic] Mother’s concise statement of [the errors]
complained of on appeal inadequate to merit appellate review
resulting in Mother’s waiving any alleged error by the trial
court?
2. Did the trial court abuse its discretion and commit [sic] an
error of law by awarding shared physical custody of the minor
children to Father despite the fact that the record clearly
reflected that it was not in the best interests of the children to
do so?
3. Is [sic] the trial court’s analysis and findings related to factors
three, four, six, and ten of 23 Pa.C.S. § 5328 sustainable and
supported by competent evidence of record?
Appellant’s Brief, at 3.1
____________________________________________
1
We have rearranged the order in which Mother raised the issues in her
brief.
-3-
J-A30010-14
On May 13, 2014, Mother filed her statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), asserting that the court abused its
discretion and committed an error of law by: (1) awarding shared physical
custody to Father when it was not in the best interests of the children; (2)
making unsustainable findings with respect to six of the factors to consider
when awarding custody set forth in 23 Pa.C.S. § 5328(a); and (3) awarding
shared physical custody when Father failed to carry his burden to show that
modification was in the children’s best interests.
In its Rule 1925(a) opinion, the trial court deemed Mother’s issues
waived for vagueness. We disagree. A challenge to a ruling with respect to
specific subsections of section 5328(a) “identifies each ruling or error the
appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Because the factors set
forth in section 5328(a) relate to the determination of the best interest of
the child, an allegation that a party failed to establish a child’s best interest,
or that a court’s order is not in the best interest of a child, is sufficiently
detailed when specific subsections of section 5328(a) are challenged.
Where, as in this case, the trial court order itself addresses the specific
subsections of the Act, we are able to engage in appellate review without
remanding the matter to the trial court. Accordingly, we address Mother’s
remaining issues.
In custody modification cases, our scope and standard of review are as
follows:
-4-
J-A30010-14
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).
Further, this Court has stated:
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)).
Under the Child Custody Act (“Act”), 23 Pa.C.S. §§ 5321-5340, the
paramount concern is the best interests of the child. See 23 Pa.C.S. §§
5328, 5338. Section 5338 of the Act provides that, upon petition, a trial
court may modify a custody order if it serves the “best interest of the child.”
See 23 Pa.C.S. § 5338.
Mother asserts that the trial court abused its discretion and erred as a
matter of law by awarding shared physical custody to Father because the
-5-
J-A30010-14
record indicates that it was not in the children’s best interests to do so. In
support of this contention, she argues that she is the parent who signs the
children up for activities and school events, and that when Father attends an
activity or takes the children to one, he is usually late. She notes that
Father missed a report card conference, did not take the children to the first
day of school and failed to take the children to camp orientation. Mother
further notes that Father smokes in the same vehicle that he uses to
transport the children, and that when their son was five years old and
weighed 55 pounds, Father allowed him to ride in the front seat of his
vehicle.2
As noted above, the question we must answer “is whether the trial
court’s conclusions are unreasonable as shown by the evidence of record.”
Ketterer, supra. None of the evidence cited by Mother leads us to believe
that it was unreasonable for the court to conclude that shared physical
custody of the minor children constituted an abuse of discretion or an error
of law.
Section 5328(a) of the Act sets forth sixteen factors that the court
shall consider when determining the best interests of a child. Mother argues
____________________________________________
2
Mother also argues that since the entry of the court’s April 11, 2014 order,
Father has not allowed his home to be inspected for mold. We fail to discern
how this fact, if true, impacts our review of whether the trial court abused its
discretion or committed an error of law by awarding shared physical custody
based on the record before it.
-6-
J-A30010-14
that the trial court’s findings with respect to four of the factors are not
supported by competent evidence of record.
Mother asserts there was insufficient evidence to support the
conclusion that she and Father both performed “parental duties . . . on
behalf of the child.” 23 Pa.C.S. § 5328(a)(3). She notes that the trial court
recognized that Mother “has been primarily responsible for the children’s
school activities, extracurricular activities and doctors’ appointments.” Trial
Court Order, 4/11/14, at 3. The trial court also stated, “Father has missed
several school appointments and extracurricular events,” id., and, “Father
needs to be more proactive about checking his emails [which Mother sends
to inform him of school appointments and extracurricular activities] and in
utilizing the on-line information available through the children’s school
district so he can be an active participant in the children’s educational
development.” Id.
At the hearing, Father testified that when the children lived with him,
he would bathe them at least every other day and make sure their hands
were clean. N.T. 11/25/13, at 27-28. He would play outdoors with the
children, walk with them in the park, take them to the aquarium, and bring
them to the shore. Id. at 28. He would do homework with the children,
giving special attention to J.M., who was having difficulty with reading and
writing. Id. at 35.
Father’s sister testified that Father attends the children’s baseball
games, and that while the children were living with Father, they would go
-7-
J-A30010-14
bowling and roller skating, and visit the aquarium and the Philadelphia Zoo.
Id. at 189. She also testified that Father enlisted the help of her friend, a
special education teacher, to assist him helping J.M. with his school work.
Id. at 190.
This evidence, which the trial court found credible, reasonably
supports the conclusion that both parties performed parental duties
commensurate with shared physical custody. See C.R.F., supra.Mother next argues that the evidence of record does not support
shared physical custody in light of “the need for stability and continuity in
the child’s education, family life and community life.” 23 Pa.C.S. §
5328(a)(4). She again insists that she is the parent who handles most
aspects of the children’s education. She notes that she lives on a residential
street where there are several neighborhood children for her boys to play
with. In contrast, she states that father lives on a busy street and that he
does not know his neighbors. Mother further avers that when Father had
custody of the children on school days, Father needed his mother’s help to
get the children ready for school and to pick them up.
Father testified that he lives one half-mile from Mother, in the same
neighborhood. He further stated that if he had custody during the school
week he could take the children to school at 8:30 a.m. and pick them up at
3:20 p.m., after which he would stay home to help them with their
homework and cook dinner. N.T. Hearing, 11/25/13, at 182.
-8-
J-A30010-14
Mother’s testimony and evidence about Father’s lack of involvement in
the children’s education and extracurricular activities dated from the period
when he had extremely limited primary physical custody (daytime every
other weekend and one evening after school every week). Accordingly, if
the court found Father’s testimony to be credible, it reasonably supported
the conclusion that awarding shared physical custody to the parents would
promote stability and continuity with respect to the children’s education,
family life and community life.
Mother next asserts that the evidence does not support the court’s
conclusions with respect to “the child’s sibling relationships.” 23 Pa.C.S. §
5328(a)(6). As previously noted, P.F., Mother’s 11-year-old son from a prior
relationship, lives with her. Mother argues that the evidence supports a
strong bond between the children and their older half-brother, which would
be undermined by separating them.
Mother correctly notes that it is the policy of the Commonwealth that
siblings should be raised together barring compelling reasons to the
contrary. Pilon v. Pilon, 492 A.2d 59 (Pa. Super. 1985). “This factor is not
diluted by the fact that the children involved are half-brothers and sisters.”
In re Davis, 465 A.2d 614, 621 (Pa. 1983). Nevertheless, the policy that
siblings should be raised together is a consideration in, rather than a
determinant of, custody arrangements. L.F.F. v. P.R.F., 828 A.2d 1148(Pa. Super. 2003).
-9-
J-A30010-14
In support of her position, Mother cites Wiskoski v. Wiskoski, 629
A.2d 996 (Pa. Super. 1993). In that case, the parties married in Rhode
Island in February 1988, at which time mother had two young children from
a previous marriage. The parties’ son was born in October 1988, and the
family relocated to Carbon County in 1990. The parties separated in
October 1992, and mother returned with the children to Rhode Island. The
trial court issued an order providing that during the school year, father
would have primary physical custody of the parties’ son, who was four years
and nine months old, with mother having primary physical custody during
the non-school summer months. On appeal, this court reversed, noting that
father had offered no reason for separating the children.
The instant case is remarkably different from Wiskoski, where the
trial court’s order had the effect of separating the child from his half--
siblings, who lived hundreds of miles away, for the entire school year except
for one week of Christmas vacation. Here, the order provides that the
children and their half-brother, who are being raised in the same
neighborhood, will live together every other week.
Further, Father testified that between June and October 2012, while
the agreed upon custody order was in effect, Mother allowed P.F. to go to his
house when he had physical custody of the children. Father also took P.F. to
his parents’ house in Ocean City, New Jersey during that period. N.T.
Hearing, 11/25/13, at 23-25.
- 10 -
J-A30010-14
It is clear that the court heard testimony regarding the children’s
relationship with their half-brother, and it considered the issue when
fashioning the week on/week off custody order. We find no abuse of
discretion or error of law in its determination that the order promotes the
best interests of the children, even though it entails some disruption in their
day-to-day contact with their half-brother.
Mother next argues that the trial court’s order fails to consider “which
party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child.” 23 Pa.C.S. §
5328(a)(10). In support of her argument, Mother points to the same facts
that she highlighted in previous portions of her brief, such as Father’s failure
to attend school conferences and activities, and her concerns about the
cleanliness of, and presence of mold in, Father’s house.
Nevertheless, the record contains testimony concerning Father’s
efforts to help the children with their homework and assist J.M. in improving
his reading and writing skills; Father’s active involvement in the children’s
lives when they are in his custody; Father’s ability to arrange his schedule to
drop the children off at school and pick them up; and Father’s efforts to
make sure that the children and the house were clean when he had shared
physical custody. This evidence, which the trial court found credible,
reasonably supports the conclusion that both parties are equally likely to
attend to the children’s needs. See C.R.F., supra.- 11 -
J-A30010-14
In light of the custody order in this case and our review of the record,
it is clear that the sustainable findings of the trial court support the
conclusions of law, and therefore, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
- 12 -