Opinion
J-S95031-16 No. 2458 EDA 2016
03-09-2017
A.D.H. v. M.H., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered July 11, 2016 in the Court of Common Pleas of Bucks County, Civil Division, No(s): A06-15-60073-C BEFORE: STABILE, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
M.H. ("Father") appeals from the Custody Order finding A.D.H. ("Mother") in contempt of the trial court's prior interim custody Order (the "Interim Custody Order"), and awarding Mother primary physical custody of the parties' four children ("Children"), and Father having partial physical custody in accordance with a schedule. We vacate and remand.
Mother and Father have twelve-year-old twin boys and ten-year-old twin girls.
In its Opinion, the trial court set forth the factual and procedural history underlying the instant appeal, which we adopt as though fully restated herein. See Trial Court Opinion, 9/14/16, at 1-7.
On appeal, Father presents the following claims for our review:
I. Is it proper for a trial court to grant primary physical custody to one parent after finding the custody factors either to favor the other parent or weigh equally between both parents? Specifically, is it proper for a trial court to grant primary physical custody to the parent whom it found (i) alienated [Children]
from the other parent, (ii) "poisoned" the relationship between the other parent and [Children,] and (ii) "clearly" was in contempt of the Custody Order?Brief for Appellant at 6. We will address Father's claims together, as they are related.
II. Is it proper for a trial court to grant primary physical custody to one parent and award less physical custody time to the other parent than (i) either parent requested[,] and (ii) the custodial evaluator recommended, after finding that all of the custody factors either favor the other parent or weigh equally between both parents[,] and that the primary physical custodian parent "clearly" was in contempt of the [prior, Interim] Custody Order?
Father first claims that the trial court improperly awarded primary physical custody of Children to Mother, after finding that most of the 23 Pa.C.S.A. § 5328(a) factors weighed in Father's favor, and the remaining factors favored neither party. Brief for Appellant at 30. Father compares the instant case to the circumstances presented in W.C.F. v. M.G., 115 A.3d 323 (Pa. Super. 2015). In W.C.F., Father argues, this Court reversed a trial court's order awarding the mother primary physical custody, concluding that the award was unreasonable in light of the court's factual findings. Brief for Appellant at 31. Father contends that this Court's decision in W.C.F. mandates the "identical result here, given the similarities between the facts of the two cases." Id.
In his second claim, Father argues that the trial court improperly awarded him less custodial time than what was (a) awarded in the Interim Custody Order, (b) recommended in the Court Conciliation & Evaluation Service ("CCES") Report, and (c) requested by Mother. Id. at 39. According to Father, the trial court failed to render any findings that would justify a reduction in Father's custodial time. Id.
In reviewing a trial court's 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 firsthand. 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.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (citation omitted).
[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial court, which 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.W.C.F., 115 A.3d at 327.
To determine the child's best interest, the trial court must consider the factors set forth in Section § 5328(a):
(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) (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.23 Pa.C.S.A. § 5328(a).
(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.
In W.C.F., the case upon which Father relies, this Court found that the trial court had abused its discretion in granting mother primary custody, where the trial court's consideration of the statutory factors weighed heavily in favor of father. W.C.F., 115 A.3d at 331. This Court concluded that the trial court had improperly given weighted consideration to mother's status as primary caregiver, when the legislature did not include giving weighted consideration to this factor in Section 5328(a). Id. at 331. Ultimately, this Court concluded that the trial court had abused its discretion in denying Father primary custody, "where all factors point otherwise." Id. at 330.
In this case, at the close of testimony, the trial court reviewed each of the factors required by Section 5328(a), finding that all but one of the factors weighed in favor of each parent equally, or in favor of Father:
(1) "Mother is not prepared emotionally, mentally, or psychologically to encourage continuing contact. In fact, she wants no contact .... Father is more likely to encourage that contact." N.T., 7/11/16, at 204. The trial court found that Mother continued to withhold Children for visitation "in clear contravention of the Court Order." Id. at 194. The trial court
further pointed out Mother's efforts to frustrate visitation, by sending one, two, three or none of Children. Id. at 193.
(2), (2.1) "There is no abuse committed by a party." Id. at 205.
(3) Both parents are "equally capable" of performing parental duties. Id. at 205-06.
(4), (5), (6) Father and Mother both have the support of extended family members. Id. at 206.
(7) The trial court noted Children's preference not to see Father, but found that the preference is "not well-reasoned. That well has been poisoned by [M]other." Id. at 206.
(8) The trial court discussed Mother's attempts to alienate Children from Father. Id. at 176. Mother calls Father "a weirdo or something similar in front of the [C]hildren." Id. at 194. Mother has told Children that Father wants to send her to jail. Id. at 199. The trial court stated, "It is clear to me that all four [C]hildren, especially [their daughter, A.], are enmeshed and aligned with Mother to the point where they see Father as the intruding enemy. Mother's cause is their cause." Id. at 202.
(9), (10) The trial court found that Father wishes to co-parent, but Mother "won't allow it." Id. at 207. "Both parents can attend to the daily physical needs and emotional needs of [C]hildren." Id.
(11) The trial court found that Mother and Father's residences are geographically close to each other. Id. at 205-06.
(12) The court found that the parties have made, and will continue to make, appropriate child care arrangements. Id. at 206-07.
(13) The case is high-conflict, but there is no evidence that Father's behavior in any way placed Children at risk. Id. at 207. The trial court set forth examples of Mother's unwillingness to cooperate with Father, including that Mother refused to give Father one child's soccer equipment, causing the child to miss practice. Id. at 183. Mother refused to allow Father to take Children to see the Harlem Globetrotters, and to a family member's first communion. Id. at 183, 186. In March 2015,
"Father did not see the [C]hildren. For approximately three weeks[,] he was denied time with them ...." Id. at 185. Over a period of five months, Mother denied Father visitation 27 times. Id. at 193. Other times, Mother sends "one, or two, or three, or sometimes none of the [C]hildren. So you're separating siblings, you're empowering them ...." Id.
(14) There is no history of drug or alcohol abuse.
(15) The trial court acknowledged Father's infidelity and pornography fixation, but found that neither impacted custody. Id. at 178, 180, 204, 208.
(16) The trial court noted the recommendation, made in the CCES Report, that Mother should continue to have primary custody, as she was primary provider of care, custody and control over Children from the time of their birth. Id. at 200.
Upon review, we conclude that the trial court's Custody Order is unreasonable in light of the above statutory findings. See W.C.F., 115 A.3d at 332 (recognizing that, "[w]hile prudence dictates that this Court exercise its authority sparingly in child custody cases, we may rectify a manifestly unreasonable custody order.").
In its Opinion, the trial court stated that it "made it clear at the July 11th, 2016 hearing that awarding Father a lengthy period of additional custody would cause even more turmoil in the [C]hildren's lives, and would not be in their best interests." Trial Court Opinion, 9/14/16, at 8 (citing N.T., 7/11/16, at 41). However, our review discloses no mention of the trial court's statement on page 41 of the Notes of Testimony.
Here, as in W.C.F., the trial court weighed almost all of the statutory best interest factors in favor of Father, or in favor of both parties equally. The trial court's resulting Custody Order (awarding Father only partial custody on alternating weekends) was manifestly unreasonable, in light of the court's own assessment of the statutory factors. We conclude that under these circumstances, the trial court abused its discretion in awarding Father only partial physical custody, on alternating weekends. The trial court's own findings would support an award of increased, if not shared physical custody of Children. Accordingly, we vacate the trial court's Custody Order, and remand for an order consistent with the trial court's own findings.
As in W.C.F., parental alienation was a critical issue between the parties, and the trial court found that Mother was unlikely to promote Children's relationship with Father. --------
Order vacated. Case remanded for entry of a custody order in accordance with this Memorandum. Superior Court jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/9/2017
Image materials not available for display.