J.D. v. J.B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : J.B. : : Appellant : No. 1869 EDA 2020

Appeal from the Order Entered September 14, 2020 In the Court of Common Pleas of Delaware County Civil Division at No(s): No. 2020 - 003429

BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2021

J.B. (“Mother”) appeals from the Order denying her Petition to relocate to Pennsburg, Montgomery County, and awarding her and J.D. (“Father”) shared legal custody, and Father primary physical custody of their child, J.D., Jr. (“Child”) (a male born in April 2019). We affirm.

In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 11/19/20, at 1-14.

Briefly, Child was born in April 2019 to Mother and Father. In May 2020, shortly after Child’s first birthday, Mother left the residence she shared with Father in Wallingford, Delaware County, with Child, in order to reside at her

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parents’ home in Pennsburg, Montgomery County.1 On June 3, 2020, Father filed a custody Complaint and an Emergency Petition for custody, and filed an Amended Petition for custody a week later. The trial court held a hearing on June 23, 2020, after which the trial court granted Father’s Emergency Petition, and granted Mother and Father joint legal custody, with Father having primary physical custody, and Mother having partial physical custody. On June 26, 2020, Mother filed an Emergency Petition for relocation, and Father filed an Answer and Counterclaim on June 29, 2020. On June 30, 2020, the trial court denied Mother’s Petition, and scheduled a relocation trial for a later date. Mother filed an Emergency Petition to Modify Custody Order on July 10, 2020, which the trial court denied on July 14, 2020.

The trial court held a custody and relocation trial on July 31, 2020, where both Father and Mother were represented by counsel, testified, and presented evidence. On September 14, 2020, the trial court entered an Order denying Mother’s request for relocation. However, the trial court awarded Mother and Father shared legal custody, Father primary physical custody, and Mother partial physical custody every Sunday from 10:00 a.m. to Wednesday at 4:00 p.m., with exchanges at Father’s residence and Mother being responsible for all transportation. ____________________________________________ 1 Mother filed a Notice of proposed relocation two days prior to vacating the

residence, but the Notice had not been served on Father prior to Mother’s departure with Child. See N.T., 7/21/20, at 37, 47, 66, 112-13.

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Mother filed a Motion for Reconsideration on October 5, 2020, which the trial court denied. On October 8, 2020, Mother filed a timely Notice of Appeal, as well as a Concise Statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Mother raises the following issues for our review:2

1. Did the [trial] court abuse its discretion by awarding primary physical custody to [Father]?

2. Did the [trial c]ourt err in stating that [sic] proximity of residence factor favors Father[,] when Mother agreed to do all of the driving transportation?

3. Did the [trial c]ourt err in stating that Mother displayed an unwillingness to work with Father?

4. Did the [trial c]ourt err in stating that Father was willing to work with Mother?

5. Did the [trial c]ourt err in stating that Father was awarded primary physical custody because he was credible in his testimony regarding his willingness to work with Mother, his conduct prior to the entry of the Temporary Order was measured and reasonable and in the best interest of [C]hild, that he remains in the home ____________________________________________

2 Father argues that Mother waived all issues on appeal as a result of procedural and substantive deficiencies relating to her Concise Statement, Designation of Contents of Reproduced Record, and appellate brief. Father’s Brief at 15-24. Our review confirms Mother’s failure to file a Designation of Contents of Reproduced Record and procedural deficiencies related to Mother’s brief (in particular, Mother’s Argument section is devoid of the required distinctive organizational headings separating each issue, as well as citation to applicable law, except for initial generalized reference, and, when applicable, citation to where she raised such issues below). Nevertheless, we decline to find waiver, and proceed with the merits of Mother’s appeal. See Pa.R.A.P. 2101 (stating that “[b]riefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed….”).

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where [C]hild has lived his whole life, that he would only need child care at night when [C]hild was sleeping and his residence is in a better school district?

Mother’s Brief at 4 (suggested answers omitted).3

We will address Mother’s issues together. First, Mother argues that the trial court erred in finding that Father was the more likely party to encourage and permit frequent and continuing contact between Child and the other parent. Id. at 11-12. Mother asserts that the trial court ignored testimony that Mother communicated with Father during the period of time during which she was not permitting Father to see Child, and that the trial court was punishing Mother for her uncertainty as to whether Father would have returned Child to Mother if Mother had allowed Father to see Child. Id. at 11. Mother asserts that Father’s unwillingness to agree to contact with Mother ____________________________________________ 3 While Mother states her issues somewhat differently in her appellate brief

than in her Rule 1925(b) Statement, we nevertheless find that Mother preserved her challenge to the trial court’s award of primary physical custody to Father. Mother did not present a challenge to the denial of relocation, as she failed to raise the issue in her appellate brief. She also failed to preserve in her Rule 1925(b) Concise Statement and Statement of Questions Involved separate challenges related to the analysis of custody factors 9 and 10; that the Order was punitive and lacked relation to Mother’s and Father’s work schedules; and consideration of school district. See Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to preserve issues by raising them both in the concise statement of errors complained of on appeal and statement of questions involved portion of the appellate brief results in a waiver of those issues); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017). Accordingly, we will address such issues only to the extent that Mother incorporates them within the context of her preserved challenges.

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beyond the court-ordered two nights per week should not have resulted in the trial court favoring Father in this regard. Id. at 12.

Second, Mother argues that the trial court erred in finding that Father was better able to provide stability and continuity for Child’s education, family, and community life. Id. Mother asserts that the trial court should have found in favor of Mother, because Mother residing with her parents provides an even greater level of stability for Child. Id. Further, Mother asserts that because Child is one year old, maintaining the same residence with Father is inconsequential. Id.

In Mother’s third issue, she argues that the trial court erred in favoring Father when evaluating the attempts of a parent to turn Child against the other parent. Id. at 12-13. Mother asserts that the trial court ignored Father’s testimony that he threatened Mother with not returning Child to her, and Father’s threats were the reason why she retained Child at her parents’ home. Id. at 13.

In Mother’s fourth issue, she argues that the trial court contradicted itself in initially concluding that Father was more likely to maintain a loving, stable, consistent and nurturing relationship with Child, and that Father was more likely to attend to Child’s daily physical, emotional, developmental, educational and special needs. Id. at 13-14. Mother asserts that the trial court’s subsequent Opinion, which stated that the factor favored both parties,

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is important because it weakens the overall support for granting Father primary custody. Id.

Fifth, Mother argues that the trial court erred in finding that Father was more available to make appropriate childcare arrangements for Child. Id. at 14-15. Mother asserts that no factual basis existed for awarding Father more custodial time than Mother, as Mother was willing to do all of the driving between their residences, and her work schedule is more conducive to caring for Child. Id. Further, Mother claims that the trial court made no attempt to work with Mother’s and Father’s work schedules, and had the trial court done so, each party would have been able to spend more time with Child. Id. at 15.

In custody cases under the Child Custody Act (the “Act”), 23 Pa.C.S.A. §§ 5321-5340, our 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. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

The discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature

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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)). Further, “[a]n abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation omitted).

“When a trial court orders a form of custody, the best interest of the child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (citation omitted); see also 23 Pa.C.S.A. §§ 5328, 5338. In assessing the child’s best interest, the trial court must consider the custody factors set forth in section 5328(a) of the Act, which provides as follows:

§ 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

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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.

(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.

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(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.A. § 5328(a). “All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted); see also 23 Pa.C.S.A. § 5323(d) (providing that, when a trial court awards custody, it must “delineate the reasons for its decision on the record in open court or in a written opinion or order.”). However, “[i]n 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.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation marks omitted).

With regard to the custody factors, we have stated as follows:

“All of the factors listed in [S]ection 5328(a) are required to be considered by the trial court when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). … The record must be clear on appeal that the trial court considered all the factors. [E.D., supra at 81.]

Section 5323(d) provides that a trial court “shall delineate the reasons for its decision on the record in open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “[S]ection 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328(a) custody] factors prior to the deadline by which a litigant must file a notice of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 ([Pa. ]2013)….

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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.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68 A.3d 909 ([Pa. ]2013). A court’s explanation of reasons for its decision, which adequately addresses the relevant factors, complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).

Although the court is required to give “weighted consideration to those factors which affect the safety of the child” pursuant to 23 Pa.C.S.A. § 5328(a), we have acknowledged that the amount of weight a court gives any one factor is almost entirely discretionary. M.J.M. v. M.L.G., 63 A.3d at 339. Critically, as we stated in M.J.M.:

It is within the trial court’s purview as the finder of fact to determine which factors are most salient and critical in each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010) (“In reviewing a custody order … 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.”).

M.J.M., 63 A.3d at 339 (emphasis added).

In its Findings of Fact and Conclusions of Law accompanying its Order, the trial court comprehensively addressed and analyzed the custody factors pursuant to section 5328(a). See Trial Court Findings of Fact and Conclusions of Law, 9/14/20, at 15-27. Specifically, the trial court found that custody factors 1, 4, 8, 11, 12, and 13 favor Father; custody factors 3, 5, 9, and 10

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favor both Mother and Father, and the remaining custody favors favor neither party. See id. at 15-27.4

In its Opinion, the trial court summarized its analysis as follows:

The Findings of Fact and Conclusions of Law dated September 14, 2020[,] contains the trial court’s determinations made pursuant to the applicable statutory factors and which support the Final Order entered on the same date. The trial court took into consideration all of the evidence, assessed the credibility of each witness, and determined the weight that should be afforded the evidence in light of the statutory custody … factors. The trial court finally determined that it would be in the best interest of [Child] to … award primary physical custody to Father.

The testimony of record clearly supports the trial court’s finding that Father is far more flexible and willing to foster Child’s relationship with Mother than Mother is with Father. Although Mother now may advocate for a shared physical custody arrangement, prior to the [c]ourt’s Order[,] she was rigid in her opinion that she should have primary custody. In addition, the trial court found that Mother’s plan for her residence and employment was not stable and did not present a clear plan for providing [] Child with necessary consistency in his daily life. Mother, while currently living in Pennsburg, Montgomery County with her parents, signed a lease for an apartment in Bryn Mawr, Delaware County[,] about which she could not provide pertinent information[,] and obtained a temporary job in Bucks County requiring travel and extensive amounts of daytime separation from Child. Father’s residence and place of employment are within minutes of each other in Delaware County and he has a regular schedule to which Child is accustomed. The trial court further found that Mother had engineered unnecessary conflicts with Father regarding custody and did not in any reasonable manner attempt to amicably resolve their disagreements prior to the trial.

Trial Court Opinion, 11/19/20, at 14-16. ____________________________________________

4 We observe that while the trial court indicated that it found custody factors

9 and 10 in favor of Father, its analysis reveals that the trial court actually found the custody factors in favor of both parties. See Trial Court Findings of Fact and Conclusions of Law, 9/14/20, at 22-24.

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In each of her issues, Mother disputes the trial court’s findings and determinations regarding the credibility and weight of the evidence, as well as the weight attributed to certain factors. Mother, essentially, asks this Court to re-find facts, re-weigh evidence, and/or re-assess credibility to his view of the evidence. This we cannot do. See D.R.L. v. K.L.C., 216 A.3d 276, 286 (Pa. Super. 2019) (stating that it is not this Court’s role to re-find facts, re-weigh evidence, and re-assess credibility). Under our standard of review, the trial court’s findings of fact and determinations regarding credibility and weight of the evidence are not disturbed absent an abuse of discretion. See C.R.F., supra. As we stated in King v. King, 889 A.2d 630, 632 (Pa. Super. 2005), “[i]t is not this Court’s function to determine whether the trial court reached the ‘right’ decision; rather, we must consider whether, ‘based on the evidence presented, given [sic] due deference to the trial court’s weight and credibility determinations,’ the trial court erred or abused its discretion….” (quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)). After a thorough review of the record, we discern no abuse of discretion by the trial court. To the extent that Mother challenges the weight attributed to any factor by the trial court, we likewise discern no abuse of discretion. See M.J.M., 63 A.3d at 339.

In this case, after careful review of the record, we conclude that the trial court’s findings and determinations are supported by competent record evidence, and we will not disturb them. See C.R.F., supra. Accordingly, we affirm the trial court’s Order.

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Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/16/2021

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