Opinion
1089 MDA 2023
01-18-2024
J. M. W. v. T. A. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered July 5, 2023 In the Court of Common Pleas of Lebanon County Civil Division at No(s): 2020-20452
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
LAZARUS, J.
T. A. (Mother) appeals from the order, entered in the Court of Common Pleas of Lebanon County, denying her petition for modification of custody. After review, we affirm based on the opinions, authored by the Honorable John C. Tywalk, filed on July 5, 2023 and September 1, 2023.
Mother and J. M. W. (Father) have shared legal and physical custody of their minor daughter (Child) (born 11/2017) since 2021. See Custody Order, 6/9/21. Since that time, the parties have shared physical custody on a four-week-on, four-week-off schedule because Mother was serving in the military and stationed in California. See Order, 6/10/21. Mother has since retired from the military and relocated to Connecticut, where her family resides.
On August 24, 2022, Mother sought modification of the custody order, seeking primary physical custody of Child during the school year. Mother, who is an American of Tibetan ancestry, explained that her main goal in seeking primary physical custody is to ensure that Child will be educated in Mother's Tibetan culture and religion. Mother stated that there is a large Tibetan community in Connecticut, and she wanted to enroll Child in a kindergarten in that area where Child could go to school with other children of Tibetan ancestry.
On March 16, 2023, the court held a hearing on Mother's petition. At the hearing, Mother, Father, and paternal grandmother testified.
Mother lives alone in a single-family home, which she owns, where Child has her own room. Mother lives close to family, including her mother and her brother, who live together. Maternal grandmother's boyfriend also lives there. See N.T. Custody Hearing, 3/16/23, at 8-12. Mother stated that it is "equally important" for Child to be exposed to both her Tibetan and Christian backgrounds. Id. at 30.
Mother works full time as a measurement technician for an energy company, from 7:00 a.m. to 2:30 p.m., Monday through Friday. Her work entails some travel, although she testified that 90% of her travel is about 20 minutes from her home. Id. at 15-16.
Father lives with his parents, both retired teachers, in a single-family home where Child has her own room and a playroom. Id. at 79-84. Father has a flexible work schedule, and he is able to work remotely. Id. at 79. Paternal grandmother, who previously worked at the preschool that Child attended, is available to care for Child when Father is working, and to get Child on and off the school bus for kindergarten. Id. at 113-15, 165. Father's brother and sister-in-law, with whom both Father and Child share a close relationship, also live nearby; Father's sister-in-law who shares a love of horseback riding with Child and pays for Child's horseback riding lessons. Id. at 152-53.
The parties presented extensive testimony on the "cultural exposure" issue, as well as the relative merits of the school systems in both parties' school districts. Following the custody trial, the court gave the parties an opportunity to file briefs on the "cultural exposure" issue, id. at 187, and took the matter under advisement.
On July 5, 2023, the court denied Mother's request for modification and ordered the parties to continue their shared legal custody of Child, ordered Father have primary physical custody of Child and Mother have one weekend per month during the school year, and ordered Mother have primary physical custody of Child during summer. Mother appealed. She raises the following issues for our review:
1. Whether the trial court's conclusions were against the weight of the evidence presented through trial regarding custody factors four, five, ten, twelve, and sixteen.
2. Whether the evidence presented to the court was insufficient to support the decision arrived at by the trial court to give [Father] primary physical custody during the school year and [Mother] to have at least one weekend per month as the parties agree with primary custody during the
summer and [Father] having one weekend in June, one weekend in July, and one weekend in August.Appellant's Brief, at 1-2.
We review a trial court's determination in a custody case for an abuse of discretion, and our scope of review is broad. M.P. v. M.P., 54 A.3d 950, 953 (Pa. Super. 2012). Because we cannot make independent factual determinations, we must accept the trial court's findings that are supported by the evidence. Id. The trial judge's deductions or inferences from its factual findings, however, do not bind this Court. Id. We may reject the trial court's conclusions, but only if they involve an error of law or are unreasonable in light of its factual findings. Id. See also Smith v. Smith, 281 A.3d 304 (Pa. Super. 2022). After our review, we find no abuse of discretion.
When a trial court orders a form of custody, the best interest of the child is paramount. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011). The trial court must consider the following factors when determining the child's best interest:
(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.
(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.23 Pa.C.S.A. § 5328(a)(1-16).
Moreover, on 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. R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009). 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. Id. 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. Id. 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).
Here, Mother argues that she can provide a "more cultural and parochial educational environment than [Father]" and, thus, it is in Child's best interests for Mother to have primary physical custody during the school year. Appellant's Brief, at 3. She contends the trial court failed to properly weigh "how important proper exposure to learning one's culture, language, traditions, and holidays is on a consistent basis[.]" Id. at 4. Mother also argues that "culture/religion should be considered as a factor in determining the best interest of the Child[,]" noting that "Pennsylvania has not yet considered adding cultural and religious exposure/practice to the list of factors[.]" Id. at 16.
The trial court provided a detailed analysis of the custody factors in its decision, giving very careful consideration to Child's Tibetan heritage. See Trial Court Opinion, 7/3/23, at 8-23; see also Rule 1925(a) Opinion, 9/1/23. Though cultural and religious exposure/practice is not specifically set forth in the list of custody factors the court must consider prior to entering a custody order, we point out that subsection 5328(a)(16), "other relevant factors," a "catchall provision," is utilized by a party who presents considerations that he or she believes the court must analyze in determining a child's best interests. See D.K. v. S.P.K., 102 A.3d 467, 477 (Pa. Super. 2014 ("Trial courts should also consider those relevant factors of section 5337(h) that are not otherwise encompassed directly or implicitly by the section 5328(a) factors pursuant to the catchall provision of section 5328(a)(16)."); see also M.J.M. v. M.L.G., 63 A.3d 331, 338 n.10 ("The complexity of the analysis is aptly captured by the Legislature's painstaking listing of 15 mandatory considerations in 5328(a)(1)-(15) and the inclusion of a catchall "any other relevant factor" in 5328(a)(16)."). Here, the court provided a comprehensive evaluation of the cultural exposure concern under subsection 5328(a)(16). The court set forth each of the custody factors and explained in detail which factor favored which party.
After our thorough review of the record, the parties' briefs, and the relevant law, we believe that President Judge C. Tylwalk carefully analyzed the statutory factors with respect to custody, and in particular, Mother's plans to keep her Tibetan culture a priority in Child's life. See 23 Pa.C.S.A. § 5328(a)(16) (other relevant factor). The court's order reflects a meaningful consideration and accommodation of Mother's wishes. We find no error or abuse of discretion in his determination. See M.P., supra. Accordingly, we affirm the trial court's order and direct the parties to attach copies of those opinions in the event of further proceedings.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.