Opinion
J-S02007-20 No. 1524 MDA 2019
03-11-2020
B.F. v. E.J. f/k/a/ E.F. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 21, 2019
In the Court of Common Pleas of Franklin County Civil Division at No(s): 2015-3589 BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.:
E.J. f/k/a E.F. (Mother) appeals from the custody order entered August 21, 2019, that awarded Mother and B.F. (Father) shared legal custody of A.F. (born in October of 2013) (Child). The August 21st order also awarded primary physical custody of Child during the school year to Father, with partial physical custody to Mother. During the summer months, the parties were awarded physical custody of Child on alternating weeks. After review, we affirm.
The relevant scope and standard of review in custody matters are as follows:
[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.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker , 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,
on 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.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014). Moreover, "when making a custody award, '[t]he court shall delineate the reasons for its decision on the record in open court or in a written opinion or order.'" M.J.M. v. M.L.G., 63 A.3d 331, 335 (Pa. Super. 2013). The court also is required to consider the factors contained in 23 Pa.C.S. § 5328(a) when awarding custody.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court's conclusions. Ketterer v. Seifert , 902 A.2d 533, 539 (Pa. Super. 2006).
Mother raises the following issue for our review:
Did the Lower Court abuse its discretion and not consider the child's best interests by relying upon two factors as grounds to change custody of a minor child who had been in the Mother's primary care since the parties' separation?Mother's brief at 6.
Here, in its opinion, the trial court set forth a procedural history of the case and provided facts within the context of responding to the custody factors set forth in section 5328(a). In addressing the custody factors, the court explained its reasons for issuing the August 21, 2019 order now on appeal. Most notably, the court mentions the high conflict and contentiousness of this custody case caused by Mother that has not lessened over the life of this matter.
The main thrust of Mother's argument is that the trial court relied heavily on two of the factors, namely, factors (a)(1) and (a)(13), both of which it found weighed heavily against Mother and noted that the other factors generally were not weighted in favor of either party over the other. It is apparent that Mother's argument is essentially requesting that this Court re-find facts and re-weigh the evidence. However, our standard of review requires that we "accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations." C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). Rather, 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." E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011). We do not conclude that that is the situation here. The trial court's findings are based on competent evidence contained in the record and its conclusions are not unreasonable.
The pertinent language of 23 Pa.C.S. § 5328(a) provides:
(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.
. . .
(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.
We have reviewed the certified record, the parties' briefs, the applicable law, and the thorough, well-reasoned opinion authored by the Honorable Todd M. Sponseller of the Court of Common Pleas of Franklin County, dated August 21, 2019. We conclude that Judge Sponseller's opinion properly disposes of the issue presented by Mother in this appeal. Accordingly, we adopt the trial court's opinion as our own and affirm the custody order on that basis.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/11/2020
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