E.R.C. v. K.J.C., Jr.

J-A12016-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.R.C. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : K.J.C., JR. : No. 1320 MDA 2020

Appeal from the Order Entered September 11, 2020 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 201507957

BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.: FILED: July 30, 2021

E.R.C. (Mother) appeals from the order, entered in the Court of Common Pleas of Luzerne County, denying her petition to modify a stipulated custody order. After our review, we affirm based on the opinion authored by the Honorable Fred A. Pierantoni, III.

Mother and K.J.C., Jr. (Father) are the parents of A.C. (born April 2007) and M.C. (born December 2011) (minor children). The parties, who live within walking distance of one another (1.5 miles) and reside in the same school district, entered into an agreement on January 7, 2018, which the court entered as a stipulated custody order on February 8, 2018. That order provided that the parties would share legal custody of the minor children. The order provided Father with primary physical custody and Mother with partial physical custody as follows:

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Mother shall have periods of physical custody of the minor children based upon a two (2)-week repeating cycle as follows:

Beginning Wednesday, January 17, 2018[,] and every other Wednesday thereafter, Mother shall have physical custody of the minor children from after school until the following Monday morning at which time Mother shall transport the minor children to school (if no school, then to Father’s residence).

Beginning Wednesday, January 24, 2018[,] and on all alternating Wednesdays thereafter, Mother shall have physical custody of the minor children from after school until the following morning, at which time Mother shall transport the minor children to school (if no school, then to Father’s residence).

Stipulated Custody Order, 2/8/18,at ¶ 5a-b. The order also provided the parties share holidays and required the parties to engage in co-parenting counseling. Id. at ¶¶ 6-12, 21.

On February 7, 2019, Mother filed a petition for modification and a custody trial listing. On September 24, 2019, the court ordered a pretrial conference for December 6, 2019. The custody trial took place on August 31, 2020.1 Following trial, the court entered an order on September 11, 2020, denying Mother’s petition for modification and ordering the stipulated custody order remain in full force and effect. On October 13, 2020, Mother filed this ____________________________________________

1 Trial was originally scheduled for March 31, 2020. Due to the statewide judicial emergency declared as a result of the COVID-19 pandemic, trial was delayed until August 31, 2020. See Rescheduling Orders, 4/15/20, 6/24/20, 6/30/20. It is unclear from the record what caused the seven-month delay prior to the pandemic.

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timely appeal.2 Both Mother and the trial court have complied with Pa.R.A.P. 1925.

Mother raises the following issues on appeal:

1. Did the trial court abuse its discretion or commit an error of law in its September 11, 2020 order in that it denies Mother [shared] physical custody of her minor children?

2. Did the trial court abuse its discretion or commit an error of law in its September 11, 2020 order in that it confirms that both parties are to have shared legal and shared physical custody of their minor children but denies [Mother] actual shared [] physical custody of the minor children in terms of time spent with each parent?

3. Did the trial court abuse its discretion or commit an error of law in limiting Mother’s [] physical custody of her minor children without any evidence or testimony that Mother’s time with her minor children should be restricted or unequal to that of Father?

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2 Generally, a notice of appeal must be filed within 30 days after the entry of the order from which the appeal is taken. See Pa.R.A.P. 903(a). Here, the 30th day was Monday, October 12, 2020. Our legislature has designated the second Monday in October, known as Columbus Day, a legal holiday. See 44 P.S. § 11. Thus, Mother’s appeal, filed on Tuesday, October 13, 2020, was timely. See Pa.R.A.P. 903(a). See also Official Note-Pa.R.A.P. 903, which provides:

Rule of Appellate Procedure 107 incorporates by reference the rules of construction of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1901 through 1991. See 1 Pa.C.S. § 1908, relating to computation of time for the rule of construction relating to (1) the exclusion of the first day and inclusion of the last day of a time period and (2) the omission of the last day of a time period which falls on Saturday, Sunday or legal holiday.

Id.

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4. Did the trial court abuse its discretion or commit an error of law in refusing to interview the minor children in camera as requested by Mother and failed to give appropriate weight to the proffered testimony of the minor children that the custody schedule should be modified to provide Mother with additional periods of custody?[3]

5. Were the trial court’s conclusions unreasonable as shown by the evidence of record?

6. Did the trial court abuse its discretion or commit an error of law by failing to enter a custody order that is in the best interests of the minor children?

Appellant’s Brief, at 4.

Our scope and 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., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

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 ____________________________________________

3 Mother failed to raise this issue in her Rule 1925(b) concise statement of errors complained of on appeal. See Rule 1925 Statement, 10/13/20. This claim, therefore, is waived. See In re C.M., 882 A.2d 507, 515 (Pa. Super. 2005).

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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.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (internal citations omitted). Further,

The parties cannot dictate the amount of weight the trial court places on the evidence. . . . 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.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009).

The paramount concern in any custody case under the Child Custody Act (the Act) is the best interests of the child. C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors. 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 interests of the child.” See 23 Pa.C.S. § 5338. Section 5328(a) sets forth the factors that the trial court must consider in awarding custody:

§ 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

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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) (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.

(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.

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23 Pa.C.S. §§ 5328(a) (1)-(16). Moreover, section 5323(d) mandates that, when the trial court awards custody, it “shall delineate the reasons for its decision on the record in open court or in a written opinion or order.” Id. at § 5323(d).

Initially, we note that Mother argues that the court’s September 11, 2020 order “awarded, granted and ordered both parties to have shared legal and shared physical custody of their minor children, but denied [Mother] actual shared physical custody of the minor children[.]” See Appellant’s Brief, at 10. This is inaccurate. The September 11, 2020 order denied Mother’s petition for modification, in which she sought shared physical custody, and ordered the existing stipulated custody order “remain in full force and effect.” See Order, 9/11/20. The existing order specifically awarded primary physical custody to Father. See Stipulated Custody Order, 2/8/18, at ¶ 4. We also note that Mother’s proposal of a shared physical custody arrangement would give her one additional overnight with the children. See N.T. Custody Trial, 8/31/20, at 38-39 (Q: “So you have a total of six overnights in a two-week, 14-day cycle; right?” A: “That’s right.” Q: And sharing would be one additional overnight; right? Seven?” A: “That’s correct.”).

After our review of the parties’ briefs, the record, and the relevant law, we find no error or abuse of discretion in the trial court’s decision. In its opinion in support of its order, the trial court carefully analyzed and addressed each section 5328(a) factor and considered the minor children’s best interests. See Trial Court Opinion, 9/11/20, at 11-15. Though most of the factors were

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neutral, two favored Father. Testimony from trial indicated that Father was flexible and willing to offer Mother additional periods of physical custody, and Father has a four-year-old son who is the minor children’s half-brother. The court did find that Father had two prior convictions for driving under the influence (in 2006 and 2014), but also found Father’s living situation more stable, noting that Mother had moved to Florida with her paramour in June of 2016, but had the minor children with her for the summer, and then returned in December of 2016. See id., at 4-5, 9. See also R.M.G., Jr., supra at 1237 (parties cannot dictate amount of weight trial court places on evidence).

Additionally, the court emphasized that the minor children are thriving under the present schedule; “according to both Mother and Father, [the minor children] are thriving physically, intellectually, spiritually, and morally under the current custody scheme in which Father has assumed the role of primary caretaker.” Id. at 17. Mother’s testimony confirmed this. See N.T., supra at 40 (Q: “And would you agree that [the minor children] are both doing very well academically under the current schedule?” A: “Yes, they are.” Q: “In fact, your oldest daughter has received [] accolades [] from the school in terms of math and science[?]” A: “Yes. Both of my children have [received] straight A’s their entire school li[ves].”).

We agree with the court that Mother has not established that a change in the current custody arrangement is in the minor children’s best interests, see Trial Court Opinion, 9/11/20, 19, and we are satisfied that the court’s

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findings are supported by the evidence. We discern no abuse of discretion. M.A.T., supra.

We rely on Judge Pierantoni’s opinion to affirm the custody order. We direct the parties to attach a copy of that opinion in the event of further proceedings in this matter.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/30/2021

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