Opinion
J-S08014-17 No. 1347 WDA 2016
03-27-2017
J.C. Appellee v. K.W. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 11, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2013-1130 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J. MEMORANDUM BY SOLANO, J.:
Appellant, K.W. ("Mother") is the mother of the two children ("Children") at issue in this custody proceeding, I.C. (born November 2010) and J.C. (born April 2012). She appeals from the final order resolving Mother's motion to modify custody in favor of Appellee, J.C. ("Father"). Mother contends that the court disregarded record evidence in her favor and that the children's best interests are not served by Father having primary custody. We affirm.
The record sometimes refers to I.C. as B.C., a nickname.
Both this child and Father share the initials "J.C." This memorandum uses "J.C." to refer only to the child.
We state the facts and procedural history as set forth in the trial court's opinion.
Before the court is a custody dispute involving two (2) children, [I].C., age 5, and J.C., age 4. The parties dispute primary physical custody of their daughter and son. Such dispute has been ongoing since February of 2013 and has been the subject of several prior interim and final orders of custody.
On February 28, 2013[, Father] filed a complaint for shared physical and legal custody. On March 27, 2013[, Father] filed a counter-affidavit objecting to a proposed relocation by [Mother]. On April 19, 2013[, Mother] filed an "Emergency Motion to Relocate." In this emergency motion, she represented that she had lost employment at the Meadows Casino and that she had encountered a "housing crisis." [Mother] requested that she be permitted to move with her children from Canonsburg, Washington County to Irwin, Westmoreland County.
On April 19, 2013 the Hon. Gary Gilman granted [Mother] emergency relief permitting her move to Irwin and issued an interim order of custody. Pursuant to the interim order, [Father] had physical custody of the children starting each Thursday evening until Sunday. [Mother] had physical custody of the children at all other times.
On April 26, 2013, [Mother] filed a formal petition seeking relocation of the children to Fort Worth, Texas. On June 6, 2013 [Mother] sought a change to Judge Gilman's interim order. [Mother] requested that the children be in her custody any night that [Father] was not available to have the children reside in his home. Judge Gilman denied this requested relief. However, Judge Gilman directed that the paternal grandparents should not smoke in the presence of the children. On July 26, 2013, [Mother] withdrew her petition to relocate to Texas.
On August 23, 2013 upon the recommendation of a custody conference officer, Judge Gilman issued an order of custody. Pursuant to this order, the parties shared physical and legal custody of the children on a recurring two (2) week schedule. In "Week A" [Father] had physical custody of the children from Thursday until Sunday. In "Week B" [Father] had physical custody from Thursday
until Monday. The children resided with [Mother] at all other times.
On October 1, 2013 [Mother] requested a custody trial de novo "nunc pro tunc." Judge Gilman denied the request as being untimely.
On or about April 16, 2014[, Mother] served notice of her intention to relocate with the children to Baltimore, Maryland. On May 6, 2014[, Father] filed a counter affidavit opposing [Mother]'s intention to relocate from Irwin, Pennsylvania to Maryland. This court conducted a relocation hearing on July 10, 2014. On July 18, 2014, this court issued an opinion and order approving [Mother's] relocation to Baltimore, Maryland. In the same order, this court issued an interim order of custody providing the parties with shared physical and legal custody, with the parties having a two (2) week on and two (2) week off schedule. This court scheduled a further hearing to consider all evidence relevant to a modified order of custody as required by 23 Pa.C.S.A. § 5337(f).
On August 5, 2014 [Father] filed a written request for reconsideration. On September 11, 2014 this court denied [Father]'s request for reconsideration and issued a modified order of custody. The modified order of custody was stipulated to and agreed upon by the parties. The modified order of custody incorporated this court's July 18, 2014 order for shared custody on a two week on two week off schedule and portions of Judge Gilman's order of August 28, 2013.
Within eight months, on March 17, 2015[, Mother] filed a motion seeking to modify the previously agreed upon custody order. On February 18, 2016 upon recommendation of the custody conference officer this court issued a new order of custody. This new order provided for the parties to share legal custody. However, primary physical custody during the school year was awarded to [Father] and periods of partial custody on the first, third and fourth weekend of each month was granted to [Mother]. During the summer break from school the parties returned to sharing physical custody on a two (2)
week on and two (2) week off schedule. On March 3, 2016, [Mother] filed a timely request for a trial de novo.Trial Ct. Op., 8/12/16, at 1-4.
Following a pre-trial conference on April 8, 2016[,] this court scheduled the trial de novo for June 27 and June 28, 2016. The parties appeared and offered testimony of seven witnesses including both parties. Due to the length of testimony [Father]'s testimony could not be completed. The parties returned on July 15, 2016[,] to complete the presentation of evidence which included testimony from [Father], and rebuttal evidence from [Mother].
This was the date the court served its opinion on the parties.
On August 11, 2016, the court issued an eight page final opinion and order establishing the parties' custody of the Children. The court awarded primary physical custody to Father during the school year, with periods of partial custody granted to Mother during the first and third full weekends of each month. Trial Ct. Op., 10/7/16, at 24-25. During the summer months, Mother was provided with seven weeks of custody. Id. at 25. Mother timely appealed and filed a Pa.R.A.P. 1925(a)(2) statement. The court issued a responsive opinion that also incorporated by reference its August 12, 2016 opinion. Id.
Mother was also granted custody during the second weekends of the months of October, January, and March.
Mother raises the following issues:
1. Did the lower court err by finding that the evidence and/or testimony, as shown by the record, favors Father
and supports the finding that Father should have primary physical custody?
2. Did the lower court, more particularly, err in finding that the custody factors in 23 Pa.C.S.A. § 5328 favor Father by determining the following:
Mother's Brief at 11 (citations omitted).a. [Father] has the better ability to provide stability and continuity; . . .
b. [Father's] extended family, weighted in [Father's] favor, provides more support; . . .
c. [Father] will provide the same or similar access to the children as [Mother] did.
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.D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (citation omitted).
We summarize Mother's arguments for both of her issues, which are interrelated. She lists each of the statutory factors that a court must consider in evaluating custody and identifies evidence for most of the factors that in her view, favor awarding custody to her. We conclude Mother is not entitled to relief.
The parties agree that some factors are not at issue, e.g., 23 Pa.C.S. § 5328(a)(2), which states the court should consider whether there was past or present child abuse.
We set forth the statutory factors considered by the court in determining custody:
§ 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) (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. § 5328(a). In addition, "[i]n a custody case where neither parent is relocating, but the children stand to move a significant distance, trial courts should still consider the relevant factors of section 5337(h) in their section 5328(a) best interests analysis." D.K., 102 A.3d at 476. In this respect, "[t]rial 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)." Id. at 476-77. The non-duplicative Section 5337(h) factors are:(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.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.23 Pa.C.S. § 5337(h).
(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
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(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
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(10) Any other factor affecting the best interest of the child.
After careful consideration of the record, which includes almost 700 pages of testimony, the parties' briefs, and the decisions of the Honorable Michael J. Lucas, we affirm on the basis of the trial court's decisions. See Trial Ct. Op., 10/6/16, at 2-5; Trial Ct. Op., 8/12/16, at 8-23 (holding that (1) Mother did not credibly establish economic stability, (2) court properly weighed access to the parties' extended family; and (3) although Father was not the party most likely to encourage the children to speak with the other parent, court tailored its order to assure Mother will have access to the Children and to information about them). We add that the court did not find that all the custody/relocation factors were overwhelmingly in Father's favor. As Mother acknowledges, the court found three factors favored Mother, three factors favored Father, and the remaining factors favored neither party, favored both parties equally, or did not apply. Given the trial court's thorough review and our deferential standard of review regarding credibility and weighing of the above factors, we cannot conclude, based on this cold record, that the trial court's findings are unreasonable. See D.K., 102 A.3d at 478. Accordingly, we affirm the order below. The parties are instructed to include the attached trial court decisions in any filings referencing this Court's decision.
The trial court cited an unpublished memorandum of this Court as persuasive authority. See Trial Ct. Op., 8/12/16, at 6 (citing L.E.C. v. J.A.S., 1598 MDA 2014, 2015 WL 6951152 (Pa. Super., June 29, 2015)). Our current Internal Operating Procedures do not permit such citation and we therefore do not adopt the trial court's reliance on L.E.C. See Reinoso v. Heritage Warminster SPE LLC , 108 A.3d 80, 83 n.4 (Pa. Super.) (en banc), appeal denied , 117 A.3d 298 (Pa. 2015). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/27/2017
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