Opinion
J-A21045-16 No. 860 EDA 2016
11-03-2016
G.A., Appellant v. J.S., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 10, 2016 in the Court of Common Pleas of Bucks County, Civil Division, No(s): A06-06-61075-C-32 BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
G.A. ("Father") appeals from the Order granting sole legal and primary physical custody of S.A. ("Child"), d/o/b 7/25/05, to J.S. ("Mother"), and directing Father to pay $73,150.00 to Mother in counsel fees. We affirm.
The trial court has set forth an extensive factual and procedural history in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 3/28/16, at 1-8.
Relevantly, Father and Mother, who never married, are the natural parents of Child. In March 2006, Father filed a Custody Complaint seeking primary physical custody of Child. On July 1, 2008, the trial court entered an Order granting Father and Mother shared legal and physical custody of Child. On April 29, 2009, Father filed a Petition for Modification of Custody. Following a custody evaluation and sixteen hearings, the trial court entered a Custody Order granting Mother sole legal custody and primary physical custody, and Father partial physical custody every second and fourth weekend. The Order also granted Mother custody of Child on most Jewish holidays and Father custody of Child on most Christian holidays. The trial court additionally ordered Father to pay $73,150.00 in counsel fees within 90 days of the Order.
Father filed a timely Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Father raises the following questions for our review:
1. Did the trial court commit an abuse of discretion or error of law when it awarded sole legal custody of [Child] to [Mother]?Brief for Appellant at 4 (issues renumbered).
2. Did the trial court commit an abuse of discretion or error of law when it awarded primary physical custody of [Child] to [Mother]?
3. Did the trial court commit an abuse of discretion or error of law when it [o]rdered [Father] to pay an assessment of counsel fees in the amount of $73,150.00?
In custody cases,
our scope [of review] 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).
Additionally,
[t]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature 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) (citation omitted).
We will address Father's first two issues together. Father contends that the trial court committed an abuse of discretion in awarding Mother primary physical and sole legal custody of Child. Brief for Appellant at 32, 35, 37. Father argues that the trial court based its decision upon his refusal to encourage and permit contact with Mother. Id. at 35-37. Father asserts that Mother's testimony was not credible and that Mother's own actions were harmful to Child's best interests. Id. at 35-36. Father claims that Mother disparaged his character and falsely misrepresented his character at the hearings. Id. at 36-37. Father also claims that Mother's history of conduct toward him raises serious concerns as to her ability to make decisions on behalf of Child. Id. at 37-38. Father argues that Mother will exclude him from Child's life. Id. at 38.
In any custody case decided under the Child Custody Act ("Act"), the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338; see also E.D. v. M.P., 33 A.3d 73, 79 (Pa. Super. 2011). Section 5328(a) provides as follows:
See 23 Pa.C.S.A. §§ 5321 et seq. While the Petition for Modification of Custody was filed prior to the effective date of the Act, i.e., January 24, 2011, the Act applies to this case as hearings were held after the effective date. See C.R.F., 45 A.3d at 445 (holding that, if the custody evidentiary proceeding is held after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply even if the modification petition was filed prior to the effective date).
§ 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.
23 Pa.C.S.A. § 5328; see also E.D., 33 A.3d at 79 n.2.(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.
Effective January 1, 2014, the statute was amended to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and involvement with child protective services) and, therefore, was in effect at the time of the hearings in this matter.
"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). 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." 23 Pa.C.S.A. § 5323(d). The trial court may not merely rely upon conclusory assertions regarding its consideration of the section 5328(a) factors in entering an order affecting custody. M.E.V. v. F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014). 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).
In its Opinion, the trial court undertook an analysis of the section 5328(a) factors, and determined that it was in Child's best interests to modify the existing custody Order and to grant Mother primary custody during the school year. See Trial Court Opinion, 3/28/16, at 7-8, 10. Father's arguments challenge the trial court's credibility determinations and the weight given to the statutory factors, specifically section 5328(a)(1), and would require this Court to reassess and reweigh the evidence in Father's favor. It is well-established that we cannot disturb the trial court's credibility determinations or reweigh the evidence. See E.D., 33 A.3d at 76 (stating that "with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge[,] who presided over the proceedings and thus viewed the witnesses first hand"); see also Robinson v. Robinson , 645 A.2d 836, 838 (Pa. 1994) (stating that on issues of credibility and weight of the evidence with regard to custody orders, "appellate courts must defer to the findings of the trial judge[,] who has had the opportunity to observe the proceedings and the demeanor of the witnesses."). Although Father is not satisfied with the weight that the trial court afforded to the statutory factors in rendering its custody decision, our review of the record reveals that the trial court's findings of fact are thoroughly supported by the record, and its conclusions are sound. See C.R.F., 45 A.3d at 443 (stating that this Court cannot reweigh the evidence supporting the trial court's determinations as long as there is evidence to support the findings). Therefore, we conclude that the trial court did not abuse its discretion, and defer to its custody decision. See id.
In his third claim, Father contends that the trial court abused its discretion in ordering him to pay $73,150.00 in counsel fees. Brief for Appellant at 8, 32. Father argues that his conduct was not dilatory, obdurate, or wholly vexatious. Id. at 8, 9-10, 11, 12-14, 15-21, 30. Father asserts that he did not re-litigate any issue, and that his filings were based upon his request for primary custody of Child and the custody evaluator's determination that Child should have a primary parent. Id. at 8-9, 12; see also id. at 13-14 (wherein Father argues that Child is becoming injured by Mother and Father's conflict and that one parent should have primary custody). Father points out that many years have passed since the filing of the Petition for Modification due to the availability of counsel and the court, the length of each hearing, and various legitimate Petitions filed by both parties. Id. at 9-10, 11-12, 15-20, 28-31; see also id. at 29 (wherein Father argues that the trial court erroneously stated that Father sought to turn Child against Mother by prolonging litigation, as such a statement was unsupported in the record). Father specifically claims that all of his pleadings "alleged separate and legitimate factual circumstances and legal issues that typically arise in custody cases. ... [A]ll of [Father's] filings were filed with the sole purposes of promotion of [C]hild's best interest." Id. at 20.
Father also argues that the trial court failed to give weight to Mother's obdurate and vexatious behavior. Id. at 21. Father contends that Mother fabricated encounters between Father and Mother to the custody evaluator and parent coordinator. Id. at 21, 22-23; see also id. at 21-22 (wherein Father argues that Mother's friend stated that Father pushed Mother in the face while Mother was holding Child, and Father called Mother a kike). Father further contends that Mother falsely accused him of being part of the Russian mafia, breaking into Mother's home and car, and having a drinking problem. Id. at 24-27. Father claims that Mother's actions required him to respond by filing pleadings and addressing the issues in court. Id. at 27-28. Father additionally asserts that the trial court justified its award of counsel fees by pointing out that he was able to pay his legal fees, totaling $156,098.58. Id. at 31. Father argues that he should not be penalized based upon his ability to pay the fees. Id. at 31-32.
Pursuant to section 5339, in a custody matter, "a court may award reasonable interim or final counsel fees, costs and expenses to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive or in bad faith." 23 Pa.C.S.A. § 5339. "Our standard of review of an award of counsel fees is well settled: we will not disturb a trial court's determination absent an abuse of discretion." A.L.-S., 117 A.3d at 361. While a separate evidentiary hearing is preferred, "[i]f the record supports a trial court's finding of fact that a litigant violated the conduct provisions of the relevant statute providing for the award of attorney's fees, such award should not be disturbed on appeal." Kulp v. Hrivnak , 765 A.2d 796, 799 (Pa. Super. 2000) (citation omitted).
We note that "[o]bdurate is defined as unyielding or stubborn." In re Padezanin , 937 A.2d at 484. "A suit is 'vexatious,' such as would support an award of counsel fees in a child custody case, if it is brought without legal or factual grounds and if the action served the sole purpose of causing annoyance." A.L.-S. v. B.S., 117 A.3d 352, 362 (Pa. Super. 2015).
The trial court addressed Father's claim as follows:
Father's conduct was indeed repetitive, and his Petitions sought to merely rehash and reargue issues decided years before. [Child] is very much aware of this ongoing battle between the parties. Additionally, the Parent-Coordinators assigned to this case all determined that Father will continually reargue any issue, no matter how insignificant. Father's attempts at obstruction and his dilatory conduct were both well-established and not contradicted, and an award of fees to Mother's counsel was therefore entirely appropriate.Trial Court Opinion, 3/28/16, at 11; see also id. at 2-7 (wherein the trial court details, inter alia, Father's combative behavior and conduct with the Parent-Coordinators, Father's actions toward Mother, and Father's failure to abide by court orders). We conclude that the record in this case supports the trial court's finding that the conduct of Father was obdurate and vexatious. See id. at 11.
Furthermore, Father himself has requested that [the trial c]ourt award full custody to one parent or the other. He believes that a shared custody arrangement would not be in [Child's] best interests. Despite this position, sixteen (16) hearings have been held, lasting for nearly the entirety of [C]hild's ten[-]year life.
Further, contrary to Father's claims regarding Mother's conduct, we conclude that her alleged misconduct did not negate Father's conduct and behavior during the resolution of the custody matter. See 23 Pa.C.S.A. § 5339. Moreover, Father's ability to pay his own counsel fees does not demonstrate that the trial court abused its discretion in awarding Mother counsel fees in this matter. Thus, we will not disturb the trial court's decision to award counsel fees to Mother.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/3/2016
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