Lombard, M. v. Strouse, M.

J-A04045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MORGAN LOMBARD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW STROUSE :
:
Appellant : No. 1322 MDA 2022
Appeal from the Order Entered August 23, 2022
In the Court of Common Pleas of Lycoming County Civil Division at
No(s): FC-2019-20324-CU
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 13, 2023
Matthew Strouse (Father) appeals from the order entered in the Court
of Common Pleas of Lycoming County, awarding Morgan Lombard (Mother)
primary physical custody, Father partial physical custody, and both parties’
shared legal custody with respect to their minor son, E.S. (Child), born in
November 2016. After careful review, we affirm.
The record reveals that Father and Mother (collectively, Parents) were
never married. After birth, Parents and Child lived together in a home Father
owns, but separated in February 2019, when Child was two years old. N.T.,
8/4/22, at 4; N.T., 8/18/22, at 79-81.
Mother resides in Jersey Shore, Pennsylvania, with her husband, Fred
Lombard, M.D. (Stepfather), her two daughters with Stepfather, aged sixteen
months and two months at the time of the hearings, and Child. N.T., 8/4/22,
at 3-4. Mother was a registered nurse but stopped working in December 2020.
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Id. at 3. She and Stepfather were married on January 10, 2020, and he is
employed as a primary care physician in Williamsport, Pennsylvania. Id. at
4.
Father resides in Montoursville, Pennsylvania, with his fiancé, her
daughter from another relationship, and Child. N.T., 8/18/22, at 78-79.
Father has lived on the same property since 2010. Id. at 79. He currently
works for a heavy machinery company as the general manager.1 Id. at 80;
N.T., 8/4/22, at 18.
After their separation, Parents verbally agreed to a two, two, three
custody arrangement.2 N.T., 8/4/22, at 7; N.T., 8/18/22, at 84.
Nevertheless, Mother initiated the underlying custody action in April 2019. On
July 3, 2019, the trial court entered an interim order awarding Parents shared
legal and physical custody. See Order, 7/3/19. Subsequently, the trial court
appointed a guardian ad litem (GAL) for Child. The GAL interviewed the
parties and various individuals close to the parties, and filed a report with the
court prior to the initial custody trial. See Report of Guardian Ad Litem,
11/25/19. By agreed-upon order dated December 3, 2019, the trial court
directed, inter alia, that Parents would share legal and physical custody of
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1 Father’s family previously owned the business, but the family sold it in
August 2021. N.T., 8/18/22, at 80. When his family owned the business,
Father was the vice president and general manager. Id.
2 A two, two, three custody arrangement involves a two-week, repeating
schedule wherein the child spends two days with one parent, the next two
days with the other parent, then three days with the first parent. The schedule
switches the following week and repeats thereafter.
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Child on a two-week, repeating schedule.3 See Order, 12/3/19, at 1-3
(unpaginated).
Approximately one year later, on January 28, 2021, Mother filed a
petition to modify custody and requested primary physical custody of Child.
See Mother’s Petition for Modification of Custody, 1/28/21. Prior to trial, on
March 19, 2021, Mother filed a petition for a psychological custody evaluation.
The parties agreed to have the evaluation performed by Penelope J. Miller,
Ph.D., a licensed clinical psychologist. Dr. Miller performed the evaluation on
June 3, 2021, and provided a report to the court. The court scheduled trial
for December 20, 2021, but the case was continued to February 7, 2022,
because Dr. Miller would be out of the country on that date.
Thereafter, on January 31, 2022, Father filed a counter petition seeking
primary physical custody of Child.4 See Father’s Petition for Modification of
Custody/Petition for Special Relief, 1/31/22, at 1 (unpaginated). The next
day, Father requested a continuance because Mother filed a proposed order
asking for sole legal custody, which she did not initially request in her petition
for modification. The parties agreed to continue the trial to July 2022. See
Order 2/8/22. Subsequently, the court entered an order on April 8, 2022,
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3 The custody order implemented a similar pattern to the two, two, three
custody arrangement.
4 Father also requested the court enter an order directing that Child be enrolled
in one of two schools for the start of kindergarten that fall. See Father’s
Petition for Modification of Custody/Petition for Special Relief at 1-2
(unpaginated).
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directing that Eric Bernstein, Psy.D., perform a custody evaluation. See
Order, 4/8/22.5 Dr. Bernstein subsequently provided the court with his
custody evaluation report dated June 26, 2022.
Meanwhile, on June 29, 2022, Mother filed an amended petition to
modify custody to request both primary physical and sole legal custody of
Child. See Mother’s Amended Petition for Modification of Custody, 6/29/22,
at 1 (unpaginated). The trial court, once again, rescheduled the trial for
August 2022.
On August 4, 16, and 18, 2022, the court held a trial on the competing
modification petitions. Mother testified on her own behalf and presented the
following witnesses: (1) Courtney Weidler, Mother’s friend and neighbor; (2)
Benjamin Weidler, Mother’s neighbor; (3) Stepfather; and (4) Jeannine Renee
Sheddy, maternal grandmother. Father testified on his own behalf and
presented testimony from: (1) Julie Route, Father’s sister; (2) Joseph
Strouse, paternal grandfather; (3) Claire Strouse, paternal grandmother; (4)
Marissa Moore, mother of one of Child’s friends; (5) Melissa Hamm, director
of the Early Childhood Learning Center, where Child attends daycare; and (6)
Elizabeth Sauers, Father’s fiancé. Further, the parties stipulated to the
admission of four reports: (1) the 2019 GAL report; (2) the
psychological/custody evaluation by Dr. Miller; (3) the custody evaluation by
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5 The court noted that the parties agreed “they would benefit from having a
custody evaluator, however, could not agree on who that evaluator would be.”
Order, 3/25/22. The court then chose Dr. Bernstein from a list of qualified
evaluators the parties provided. See id.
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Dr. Bernstein; and (4) the Bruce Chambers, Ph.D., critique of Dr. Bernstein’s
custody evaluation.6, 7 See N.T., 11/18/22, at 196. Following arguments at
the August 18, 2022, hearing, the court placed its ruling on the record in
Mother’s favor. See N.T., 8/18/22, at 224-39. Thereafter, on August 23,
2023, the court issued a custody order awarding Mother primary physical
custody during the school year, and Father partial physical custody every
other weekend and every Wednesday from after school until 6:30 p.m. See
Order, 8/23/22, at 2-3 (unpaginated). The court awarded shared physical
custody, one week on/one week off, during the summer. Id. at 3. The court
also directed the parties share legal custody.8 Id. at 1-2.
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6 The parties additionally presented, and the court admitted, numerous
exhibits. Because most were not included in the certified record, including,
but not limited to, all of the expert reports and the GAL report, this Court
informally requested that the Lycoming County Court of Common Pleas
provide the exhibits in a supplemental record, and the trial court complied.
We remind counsel, however, that “[i]t is an appellant’s duty to insure that
the certified record contains all documents necessary for appellate review.”
In re O'Brien, 898 A.2d 1075, 1082 (Pa. Super. 2006) (footnote omitted);
see also Pa.R.A.P. 1921 Note (stating, “Ultimate responsibility for a complete
record rests with the party raising an issue that requires appellate court access
to record materials.”) (citation omitted).
7 Father retained Dr. Chambers to rebut the custody evaluation report
provided by Dr. Bernstein. See Chambers’ Review Critique of Dr. Bernstein’s
Custody Evaluation, 7/4/22.
8 While the parties share legal custody in most respects, the order specifies
that Mother has sole legal custody regarding Child’s medical and dental
treatment while Father has sole legal custody regarding Child’s extracurricular
activities. See Order, 8/23/22, at 1-2 (unpaginated).
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On September 15, 2022, Father timely filed a notice of appeal.9 The
trial court filed a Rule 1925(a) opinion on October 12, 2022.
Father presents the one issue for review:
Whether the court improperly weighed the custody factors in
reaching its decision[?]
Father’s Brief at 410 (unnecessary capitalization omitted).
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9 We note that Father failed to concurrently file a concise statement of errors
complained of on appeal with his notice of appeal pursuant to Pa.R.A.P.
1925(a)(i) and (b). See In Re K.T.E.L, 983 A.2d 745, 747 (Pa. Super. 2009)
(holding that the failure to file a concise statement of errors complained of on
appeal with the notice of appeal will result in a defective notice of appeal, to
be disposed of on a case-by-case basis). However, approximately one week
later, on September 23, 2022, Father filed the Rule 1925(b) statement. Since
the delay was not prejudicial to any of the parties and did not impede the trial
court’s ability to issue a thorough opinion, we conclude the procedural error
was harmless. See Graves v. Graves, 265 A.3d 688, 692 n.7 (Pa. Super.
2021) (mother’s filing of Rule 1925(b) statement more than one month after
notice of appeal was not prejudicial to the parties, and court issued opinion
addressing claims presented in Rule 1925(b) statement).
10 We note that Father listed the following four redundant, but similarly vague,
issues in his Pa.R.A.P. 1925(b) statement:
1. Whether the [c]ourt improperly applied the custody factors in
reaching its decision[?]
2. Whether the [c]ourt improperly weighed the custody factors in
reaching its decision[?]
3. Whether the [c]ourt’s decision was against the weight of the
evidence presented at trial[?]
4. Whether the [c]ourt erred in granting Mother primary physical
custody of the child when the weight of the evidence presented
was against a decision of that nature[?]
Father’s 1925(b) Concise Statement of Matters Complained of on Appeal,
9/23/22.
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Our scope and standard of review related to Father’s claim is well-
settled:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it. . . . However, this broad
scope of review does not vest in the reviewing court the duty
or the privilege of making its own independent
determination. . . . Thus, an appellate court is empowered
to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings; and
thus, represent a gross abuse of discretion.
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
The test is whether the evidence of record supports the trial
court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations omitted).
The primary concern in custody cases is the best interests of the child.
“The best-interests standard, decided on a case-by-case basis, considers all
factors that legitimately affect the child’s physical, intellectual, moral, and
spiritual well-being.” B.S.G. v. D.M.C., 255 A.3d 528, 533 (Pa. Super. 2021).
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Child custody actions are governed by the Child Custody Act (“Act”), 23
Pa.C.S. §§ 5321-5340. When determining an award of custody, a trial court
is required to consider the 16 custody factors set forth in the Act:
§ 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 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.
(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.
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(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.
(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. § 5328(a).
This Court has emphasized that the trial court, as the finder of fact,
determines “which factors are most salient and critical in each particular case.”
M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (citation omitted).
Further, we have explained that Section 5323(d) “requires the trial court to
set forth its mandatory assessment of the [16] factors prior to the deadline
by which a litigant must file a notice of appeal.” A.V., 87 A.3d at 823 (citation
& quotation marks omitted). However:
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. A court’s
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explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
Id. (citations & quotation marks omitted).
The trial court placed its findings with respect to the Section 5328(a)
custody factors on the record in open court. See N.T., 8/18/2022, at 227-32.
Instantly, the trial court weighed factors (1), (8), and (13) in Mother’s favor,
but determined factors (3), (4), (5), (6), (9), (10), and (12) were neutral
between the parties. Further, the court found factors (2), (7), (11), (14),
(15), and (16) inapplicable in the present case. Notably, the trial court found
factors (1) and (8) particularly determinative because the court concluded
Mother was credible in “every regard” and that Father’s testimony was not
credible “because it was evasive, . . . he repeatedly said I don’t know or I
don’t remember, and [he] wouldn’t give straight answers to simple questions.”
N.T., 8/18/22, at 227, 230.
Turning to the merits of this appeal, Father baldly asserts that the trial
court abused its discretion in fashioning the custody order. Father’s Brief at
18. He emphasizes that although a majority of the custody factors either
favored both him and Mother equally, or were inapplicable to the present case,
the court disregarded those factors and focused solely on the three factors it
found favored Mother. Id. at 18, 21. Rather, he argues, it was in Child’s best
interest to “maintain[ ] the status [quo] and continu[e] the shared physical
custody of” Child. Id. at 22.
In support, Father cites W.C.F. v. M.G., 115 A.3d 323 (Pa. Super.
2015). In that case, this Court reversed a trial court’s order awarding primary
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physical custody to the mother where the court concluded that “the statutory
factors weighed heavily in favor of granting [the f]ather primary custody.”11
Id. at 331. Father’s reliance on W.C.F. is misplaced here, however, because
the court found none of the Section 5328(a) factors weighed in Father’s favor
and fashioned a reasonable custody order in light of its findings.
Primarily, Father is not entitled to relief on this claim because the trial
court thoroughly considered all of the Section 5328(a) factors. The law is
well-settled that the trial court determines which factors are most salient,
weighs the evidence, and makes credibility findings. M.J.M., 63 A.3d at 339.
Here, the court made credibility findings for Mother and against Father.
Accordingly, we discern no abuse of discretion.
Father specifically challenges the court’s findings with respect to factors
(1), (8), and (13). We begin with factor (8) ─ the attempts of a parent to turn
the child against the other parent ─ since the court found this the most salient
and critical factor. See N.T., 8/18/22, at 230. Father argues that the trial
court incorrectly believed he was making statements to Child about Mother
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11 In W.C.F., the trial court stated that while the Section 5328(a) factors
favored the father more than the mother, it would not change primary custody
because: (1) the father had not been the primary custodian previously; (2)
the father did not request primary custody in his complaint; (3) the change
would be “disruptive for the child;” and (4) the child would be in childcare
rather than with a family member during the week. W.C.F., 115 A.3d at 329-
30 (citation omitted). On appeal, however, this Court determined the trial
court’s decision was “manifestly unreasonable[,]” considering its findings that
the mother refused to cooperate with the father and was responsible for
parental alienation. See id. at 331-32. Moreover, this Court also noted that
the father had requested primary custody in an amended complaint. See id.at 330 n.2.
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and Stepfather because the only evidence to support this proposition was from
Mother and no other evidence supported her contention. Father’s Brief at 19.
Father contends the trial court dismissed the testimony by him and his family
regarding statements reported to them by Child, and therefore, the court’s
findings were biased and unsupported in the record. Id. at 19-20.
Father merely questions the trial court’s credibility determinations and
the weight the trial court attributed to the evidence presented. This we cannot
do. See A.V., 87 A.3d at 820; M.J.M., 63 A.3d at 339.
Regarding Section 5328(a)(8), the trial court stated the following:
I am absolutely convinced that [Father attempts to turn
Child against Mother and Stepfather]. The remarks that [Child]
makes to both [Mother and Stepfather] make clear that’s what’s
going on here and Father’s response to it is to simply say, Mother’s
the one who is doing it. So everything he’s doing, he denies and
says it’s all her. I don’t believe it and I don’t find Father’s
testimony credible as to that or almost anything he said because
it was evasive, because he repeatedly said I don’t know or I don’t
remember, and wouldn’t give straight answers to simple
questions. And the fact that he would acknowledge that he plays
games with the [c]ourt’s orders by parsing the language makes
clear that’s . . . exactly the kind of game playing he’s been playing
with [Mother] since [they] separated.
N.T., 8/18/22, at 230-31.
We discern no error. Significantly, the trial court emphasized specific
analysis provided in the reports admitted into evidence. Regarding the GAL
report, the trial court highlighted the following:
“I am concerned that Father is engaged in a pattern of
behavior intended to annoy Mother and is not always acting in
[C]hild’s best interest. So far I do not think he has done anything
that has turned [C]hild away from Mother but Father’s attitude
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towards Mother is troubling and could end up being harmful to
[C]hild as he gets older.” Turned out to be prophetic because I
think that’s exactly what we are now dealing with.
N.T., 8/18/22, at 224, quoting GAL Report, 11/25/19, at 10. Regarding Dr.
Miller’s report, the trial court agreed that Father is “incapable of coparenting”
and that it appears Father is “‘quite angry at [Mother] and wants to win at any
cost.’” N.T., 8/18/22, at 225, quoting Dr. Miller’s Psychological/Custody
Evaluation, 6/3/21, at 5. The trial court also highlighted excerpts of Dr.
Bernstein’s report, quoting the following, inter alia:
I, too, question [Father’s] motives as he appears more
competitive and possessive of custody than focused on [Child’s]
needs. He appears to focus more on gaining advantage and
encouraging [Mother’s] struggle with [Child] than supporting her
as a coparent.
* * *
When comparing their efforts, [Father] appears more focused on
competition and gaining advantage. While [Mother] may be overly
controlling and micromanaging [Father’s] parenting, unlike with
[Father’s] apparent motive, she seeks to support him and his
needs.
* * *
By [Mother’s] report [Father] inappropriately coaches [Child]
against [Stepfather] and his family, he exposes [Child] to adult
issues. While [Father] similarly would accuse [Mother] of such
actions, [Child’s] show of rejection against [Mother’s] authority
tips the scales in favor of [Mother’s] report as more persuasive.
N.T., 8/18/
22, at 225-27, quoting Dr. Bernstein’s Custody Evaluation, 6/26/22, at 17-18.
The court concluded “Dr. Bernstein’s concerns are this [c]ourt’s concerns. . .
.” N.T., 8/18/22, at 227. Finally, the court considered the report of Dr.
Chambers, Father’s expert, but determined the following:
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Dr. Chambers’ report really is a several page critique of Dr.
Bernstein’s opinion, but Dr. Chambers was not asked to, and did
not meet with any of the parties or with [Child] and the [c]ourt
gives Dr. Chambers’ opinion little weight in light of the fact that
Dr. Bernstein’s report is consistent with Dr. Miller’s findings as well
as the GAL’s report from 2019 and this [c]ourt’s own conclusions
after sitting through two and a half days of testimony.
Id.The trial court’s findings are also supported by the trial testimony.
Mother testified on direct examination that Child says bizarre things he could
only learn from an adult:
Q. And do you observe things with [Child] that lead you to
believe he is struggling?
[Mother]. I do, yes.
Q. And what kind of things do you see with [Child]?
[Mother]. Well, he still doesn’t always enjoy going with
[Father]. He says a lot of things that are just bizarre and off the
wall that he would never know exist unless somebody is, you know
telling him that. He is ─ he acts out almost every exchange day
he’ll act out with me. He doesn’t have to listen at my house. I
used to follow [Father’s] rules but now I don’t. I follow my rules
but he doesn’t have to follow my rules. Stuff like that. . . .
[Child] is questioning now who his family is, you know. He’s
saying [S]tepfather is just a random person in his family and we
just found that odd because he didn’t say random. I mean, it was
just a bizarre thing to say.
He is struggling, like, the other thing when he asked if our
dog could have the last name Strouse because when his . . . oldest
younger sister was being born he was told he was going to be the
only Strouse in our house so he wanted the dog to be a Strouse
as well so he wasn’t the only one living there. There [are] things
like that.
N.T., 8/4/22, at 21-22. Mother also testified that Child has expressed concern
about being taken away:
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Q. [Does] he still express concern about being taken away?
[Mother]. He does. He still will say that. He says, “I’m not
allowed to tell anyone I want to live with you or I’ll never see
[Father] again, the [j]udge will take me away.” . . . I don’t know
if he thinks the [j]udge is coming to my house or [Father’s] house
or where the judge is coming.
Id. at 23.
Stepfather also testified regarding his concerns with Child’s behavior
and statements:
Q. Do you see any things with [Child] that cause you
concern?
[Stepfather]. I have more recently . . . . I’ve seen more
things that are concerning to me. . . . [H]e’s been probably a little
bit more, you know, defiant at times and . . . it’s part of the reason
why we wanted to pursue, out of an abundance of caution, some
counseling just to make sure there wasn’t anything that we
needed to be worried about. So we have all the resources for him
that he would need just in case.
But I’ve seen him . . . struggle to sort of communicate with
us about things that were clearly bothering him . . . and things
that he would say that could only come from an adult and not from
a five-year-old’s imagination.
Q. And what do you mean by that?
[Stepfather]. [M]ost recently . . . I was playing with him in
the basement and I was kind of commenting on all the cool toys
he had and how much . . . fun our basement is, and then out of
nowhere he would say, well, that’s because [Father] gives you
guys money . . . to buy me toys here. And I was just kind of like
taken back by that. I was kind of like where could he possibly
come up with that, you know. . . .
N.T., 8/16/22, at 134-35.
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Additionally, during cross-examination, the court chastised Father for
his “refusal or inability” to answer clear questions and his questioning the
instructions of an order:
Q. And so since we were in court in February of 2022, it’s
one, two, three ─ six activities counting swimming lessons twice
that you signed him up for, right?
[Father]. I don’t count it as six but okay.
Q. You count it as five?
[Father]. Sure.
Q. Okay.
[Father]. I don’t count [vacation bible school] as an activity
either.
Q. Well the order was pretty clear it was one [activity] per
season, right?
[Father]. What’s a season? A T-ball season? A soccer
season? A swim season? A summer, fall, winter, spring? Are we
doing solstice?
THE COURT: [Father], your refusal or inability to answer
clear questions is not helping you.
[Father]: I’m sorry, Your Honor. I’ll try to answer them
more clearly. I need clear direction as well.
THE COURT: The question was isn’t an order clear that says
one activity per season, isn’t such an order clear? And apparently
that’s not clear to you because you don’t understand what could
possibly be meant by season. Do we mean fall? Winter? Spring?
Summer? Do we mean the soccer season? Seriously? Is that ─
[Father]: It deserves interpretation.
THE COURT: Do we seriously game every order we issue?
Is that what this is about? . . .
N.T., 8/18/22, at 184-85.
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Accordingly, because we conclude the documentary and testimonial
evidence supports the trial court’s finding that the Section 5328(a)(8) factor
favors Mother, we discern no abuse of discretion.
Regarding Section 5328(a)(1) ─ which party is more likely to encourage
and permit continuing contact between the child and other party ─ Father
contends that the trial court also erred in determining that this factor favored
Mother. Father’s Brief at 18. Father argues that the court incorrectly
concluded that he engaged in acts to undermine Mother’s authority and
disparaged her in front of Child. Id. He insists that this conclusion is not
relevant to this factor and is not supported by the record. Id. He further
asserts that Mother’s testimony regarding her desire to spend more time with
Child for family activities and the fact that Mother repeatedly referred to Child
as “my child,” support his proposition that the trial court erred in finding that
the Section factor (1) favored Mother. Id. at 18-19.
With respect to Section 5328(a)(1), the trial court stated on the record:
The [c]ourt believes that Father has engaged in a repeated act of
attempting to undermine Mother’s authority and disparage her to
[Child]. There are accusations back and forth about withholding
specific periods of custody. The [c]ourt’s greater concern is the
efforts that [F]ather has made to undermine Mother.
As I was listening to Father’s testimony . . . there were a
few things that I can only describe as gaslighting. [Father] was
being asked about an exchange in Our Family Wizard where
[Mother] is . . . repeatedly attempting to get him to answer a
simple question about whether or not [Child] is going to
participate in the Christmas play and he won’t respond. And his
response to counsel’s question about that is [Mother’s] constant
follow-ups are just an example of her OCD and anxiety. So he
ignores her and ignores her and ignores her so she has to
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repeatedly ask for a simple answer and his response is . . . that’s
just her OCD and anxiety, it’s not because I’ve been ignoring her
for the last four weeks.
N.T., 8/18/22, at 227-28.
Mother testified that Father has ignored her while exchanging Child and,
at times, has responded to her through Child. N.T., 8/4/22, at 12-14. On
direct examination, Child’s maternal grandmother confirmed that Father
sometimes ignores Mother at exchanges, in front of Child:
Q. Have you seen [Mother] attempting to communicate with
[Father] at custody exchanges?
[Maternal Grandmother]. Yes.
Q. And what kind of things have you seen her attempting
to communicate about?
[Maternal Grandmother]. [J]ust simple things sometimes,
like, hey, here’s his hat, here’s his lunch box, he needs this and
this. And [Father] does not communicate verbally back or he’ll
ignore her.
Q. And does he do that in the presence of [Child]?
[Maternal Grandmother]. Yes.
Id. at 77-78. Mother also testified that Father has ignored her requests for
information regarding Child’s activities, namely T-ball and a Christmas play.
Id. at 27-30.
Regarding the Christmas play, Father testified as follows on cross-
examination as follows:
Q. . . . The first message you received from [Mother]
regarding [Child’s] Christmas play was on November 17, 2021,
correct?
[Father]. That’s what the page says, yes.
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* * *
Q. And it looks like you failed to respond to that question?
[Father]. I don’t think that an immediate response was
necessary. The level of urgency on a message like this is not very
high and I don’t think it requires an immediate response. In
hindsight, I think I probably should have. This is part of my
reflection that I’ve done through this process. I probably should
have said I acknowledge you sent me the message, I’ll get back
to you when I have an answer.
* * *
Q. And then my client emailed you again on November 21st
asking about whether you planned to take him to the school play,
correct?
[Father]. That’s what the page says, yes.
Q. Then you responded with, “Why do you ask?” Right?
[Father]. That’s what the page says, yes.
Q. And she wanted ─ she said, “Well, because obviously I’d
like to attend if he’s going to be there and it’s your Saturday so I
need to make arrangements.” And again, you didn’t let her know
whether he was going to be at the play, correct?
[Father]. It doesn’t look like I responded to her until
[December] 3rd.
Q. All right. And the exhibit that you prepared for the
[c]ourt, you would agree with me you left out all of these other
exchanges, the first one being November 17th, 2021?
[Father]. Well, what I noticed about the exhibit 34 is that it
appears to be a screen shot from a phone which wouldn’t have
been a report from a Wizard app so that’s one of the differences
that I notice.
* * *
Q. So, it was just coincidental that you only included one
from her on December 1st asking and you responding on
December 3rd about his attendance and leaving out that the play
was on December 4th?
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[Father]. I disagree. I think this more indicates [Mother’s]
OCD and anxiety about these things. This is not of an urgent play,
a Christmas play. . . .
N.T., 8/18/22, at 169-71.
Thus, we conclude, again, the record supports the trial court’s finding
that Father does not provide straight answers to Mother’s inquiries despite
numerous messages from Mother, and, in fact, did not provide her with
information regarding the Christmas play until the day before it occurred.
Further, we find no support in the record for Father’s argument that
Mother’s desire to spend more time with Child for family activities equates to
her discouraging contact between him and Child. Similarly, Mother referring
to Child as “my child” during the proceedings is unpersuasive as there is no
evidence that Mother said this to discourage contact between Father and Child.
Therefore, Father’s argument is without merit.
Finally, regarding the Section 5328(a)(13) factor ─ the level of conflict
between the parties and their willingness to cooperate with one another ─
Father contends that the court erred in finding this factor also favored Mother
because no evidence was presented that she made greater efforts than Father
to cooperate. Father’s Brief at 20. On the contrary, Father argues that he
presented evidence that he had suggested counseling upon Parents’ initial
separation, but that Mother refused. Id. at 20-21. Father also asserts that
he invited Mother to participate in mediation to resolve their custody issues,
but Mother refused that as well. Id. at 21. Father concludes that there was
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no evidence, other than Mother’s “self-reporting,” that she attempted to work
with Father. Id.
Regarding factor (13), the trial court stated that there is “[s]ubstantial
conflict in this case[, but it] is convinced that Mother has made greater efforts
to cooperate with Father and Father has [not] reciprocated and so that factor
favors Mother.” N.T., 8/18/22, at 232. The court did not elaborate further
regarding this factor, and we observe no error. Father is again asking this
Court to reweigh evidence and make credibility determinations. As related
supra, the trial court did not find Father credible and found Mother to be
credible. Additionally, Mother and Stepfather testified in various instances
that they support Child’s relationship with Father, including purchasing gifts
from Child for Father and his family, and encouraging Child to go with Father
during exchanges when Child says he does not want to go. See N.T., 8/4/22,
at 8, 33-35; N.T., 8/16/22 at 75, 99, 144.
Based on the testimony, and our review of the certified record, we
conclude that the court reasonably weighed the Section 5328(a)(1), (8), and
(13) factors. Accordingly, we discern no error or abuse of discretion by the
trial court in weighing the custody factors and entering its August 23, 2022,
order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/13/2023
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