Opinion
J-A15042-17 No. 269 MDA 2017
08-15-2017
L.S.L., Appellant v. R.A.L.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered January 20, 2017 in the Court of Common Pleas of Luzerne County, Civil Division, No(s): 13285 of 2010 BEFORE: MOULTON, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
L.S.L. ("Mother") appeals from the Order granting R.A.L. ("Father") sole physical and legal custody of Z.L. ("Child"), and Mother supervised partial physical custody of Child. We affirm.
Also pursuant to the Order, the trial court denied Mother's Petition for Relocation as moot based upon its award of legal and physical custody of Child to Father.
In its Opinion, the trial court set forth a recitation of the protracted procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion and Order, 1/20/17, at 2-9.
Mother and Father were married in June 2008. They each had two children from prior relationships. Mother and Father divorced in June 2012. Currently, Mother lives in Sunapee, New Hampshire, and Father lives in Kingston, Pennsylvania.
Following hearings, the trial court granted Father sole legal and physical custody of Child. The trial court also granted Mother supervised partial physical custody and daily unsupervised phone contact with Child. Based upon this ruling, the trial court found no basis in law to address Mother's Petition for Relocation. Mother filed a timely Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Mother raises the following questions for our review:
I. Whether the [trial] court erred in applying the best interest of the child standard to the factors for determining custody per 23 Pa.C.S.A. § 5328[,] and not granting primary physical and legal custody to [M]other[?]Mother's Brief at 3.
II. Whether the [trial] court erred in failing to apply the factors for determining relocation per 23 Pa.C.S.A. § 5337[,] and not granting the relocation of [C]hild to New Hampshire[?]
III. Whether the [trial] court erred in admitting the guardian ad litem's report[,] and thereafter relying upon it[?]
This Court's standard and scope of review of custody orders is as follows:
The 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.A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and brackets omitted). Additionally, we have explained that
[o]n 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. The test is whether the evidence of record supports the trial court's conclusions.Id. (citations, paragraph breaks and brackets omitted); see also Ketterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) (stating that "[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.") (citation omitted).
In any custody case decided under the Child Custody Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338; see also W.C.F. v. M.G., 115 A.3d 323, 326 (Pa. Super. 2015). In assessing the child's best interest, the trial court must consider the seventeen custody factors set forth in 23 Pa.C.S.A. § 5328(a). W.C.F., 115 A.3d at 326. Section 5328(a) provides as follows:
§ 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.
(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, education 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.
23 Pa.C.S.A. § 5328.(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.
"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., 87 A.3d at 823 (citation and quotation marks omitted).
In her first claim, Mother contends that the trial court should have granted her legal and physical custody of Child. Mother's Brief at 9. Mother argues that the trial court erroneously applied the factors set forth in section 5328. Id. at 9-10. Specifically, Mother challenges the trial court's findings under subsections (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), and (15). Mother's Brief at 11-27.
With regard to subsection (1), Mother asserts that the trial court erred in finding that Father was best suited to encourage contact between Child and the other parent. Id. at 11. Mother claims that the trial court incorrectly found that her request for relocation was an attempt to limit contact between Child and Father. Id. Mother further claims that the trial court failed to consider Father's attempts to limit her contacts with Child. Id. at 11, 12.
With regard to subsection (3), Mother claims that the trial court erroneously found that both parties were capable of providing for the needs of Child, and should have weighed this factor in favor of Mother. Id. at 12. Mother argues that in her limited capacity to parent Child, she has provided Child with clothes. Id. Mother asserts that while Father has performed some parental duties, he relies on babysitters to supervise Child. Id. at 13. Mother further asserts that Father has failed provide a proper car seat for Child, and has dressed Child inappropriately on occasion. Id.
With regard to subsection (4), Mother argues that the evidence does not support the trial court's finding that this factor weighs in favor of Father. Id. Mother asserts that while the trial court pointed to numerous filings by Mother concerning Child's education and family life in weighing this factor in favor of Father, it did not consider Father's filings. Id. at 13, 15. Mother points out that Father failed to provide her with any information involving Child's activities, education, or health. Id. at 13. Mother further asserts that the trial court failed to consider her frequent trips from New Hampshire to see Child. Id. Mother additionally claims that there were abuse allegations made against Father. Id. at 14-15.
With regard to subsections (5) and (6), Mother asserts that the trial court erred in finding these factors to be neutral between the parties, and should have found that the factors weigh in favor of Mother. Id. at 15-16, 17. Mother points out that Child would live with Child's brothers if she lived in New Hampshire. Id. at 16. Mother claims that Father failed to present any evidence, other than his own testimony, demonstrating Child's relationships with his family members. Id. at 17.
With regard to subsection (7), Mother contends that the trial court's finding that Child loved both parents was illogical in light of its ultimate conclusion. Id. Mother argues that her alleged behavior did not have such a negative impact on Child's relationship with Father that she was prevented from having unsupervised contact with Child. Id. Mother also asserts that the trial court should have given more weight to Child's testimony that she wanted to spend more time with Mother and attend school in New Hampshire. Id. at 18.
With regard to subsection (8), Mother contends that the trial court relied on evidence that is not relevant to this case. Id. Mother argues that the only relevant issue raised by the trial court was Mother's accusation that Father could not properly care for Child. Id. at 18-19. Mother again claims that the mere filing of a request for relocation does not evidence her intent to limit contact between Father and Child. Id. at 19.
With regard to subsection (9), Mother asserts that the trial court erred in finding that this factor weighs in favor of Father based solely upon negative actions by Mother. Id. at 19-20.
With regard to subsection (10), Mother argues that the trial court's finding that both parents are able to attend to the daily needs of Child was erroneous. Id. at 20. Mother asserts that there were legitimate concerns regarding Child's car seat and Father's inattention to Child's health care needs. Id. at 20-22; see also id. at 21 (wherein Mother argues that Father's allegations that Mother takes Child on too many unnecessary doctor appointments is not supported by the record). Mother claims that Father did not adequately deal with Child's bullying concerns at school and cannot name any of Child's friends. Id. at 21. Mother additionally argues that Father did not present any evidence of Child's life, and does not exhibit an understanding of the value of Mother's presence in Child's home life. Id. at 20, 22-23. Mother contends that the trial court merely emphasized her actions without considering Father's negative impact on Child. Id. at 23, 24.
With regard to subsection (11), Mother argues that the trial court erred in finding that this factor weighs in favor of Father based solely on the fact that she voluntarily moved to New Hampshire. Id. at 24. Mother asserts that the trial court failed to consider any of the reasons she moved to New Hampshire, including to care for her elderly mother and the fact that her two sons have established educational and social lives in that state. Id.
With regard to subsection (12), Mother contends that the trial court's conclusion that her move to New Hampshire prevented her from making child care arrangements was illogical. Id. at 24-25, 26. Mother argues that the evidence demonstrated that she could provide care for Child when she is not in school. Id. at 25. Mother further claims that Father allows Child to "amuse herself" while he works and uses a large variety of babysitters. Id.
With regard to subsection (13), Mother claims that the trial court erred in weighing the factor in favor of Father. Id. at 26-27. Mother argues that the trial court improperly relied upon prior decisions in the case to find that she was at fault for the animosity between the parties. Id. at 26. Mother contends that she undertook various actions to protect Child. Id. at 27.
With regard to subsection (15), Mother claims that contrary to the trial court's finding that it needed more information about Mother's mental state, she presented evidence indicating that she was receiving treatment from two separate counselors. Id.
In its Opinion, the trial court set forth the relevant testimony from the hearings; found that Mother was non-responsive and evasive during her testimony; addressed the best interests of Child, including an analysis of the best interest factors; and determined that it was appropriate to award Father sole legal and physical custody of Child. See Trial Court Opinion and Order, 1/20/17, at 10-24, 29. We decline Mother's invitation to disturb the trial court's findings and weighing of the evidence, in favor of the findings and inferences that Mother proposes. See M.J.M. v. M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013) (rejecting appellant/mother's argument asking this Court to reconsider the trial court's findings and credibility determinations with regard to the best interest factors); see also C.A.J. v. D.S.M., 136 A.3d 504, 506 (Pa. Super. 2016) (stating that "[w]e defer to the trial [court] regarding credibility and the weight of the evidence."). Further, our review of the record reveals that the trial court's findings of fact and cogent analysis are supported by the record. See C.A.J., 136 A.3d at 506 (stating that this Court cannot reweigh the evidence supporting the trial court's determinations so long as there is evidence to support the findings). Therefore, we conclude that the trial court did not abuse its discretion, and we defer to its custody decision. See Trial Court Opinion and Order, 1/20/17, at 10-24, 29; see also A.V., supra (stating that "[a]ppellate 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.").
In her second claim, Mother contends that the trial court erred by failing to apply the relocation factors at 23 Pa.C.S.A. § 5337. Mother's Brief at 28. Mother argues that a review of the factors would have led the trial court to grant relocation. Id. at 29-32.
We note that with regard to some of the factors listed in section 5337, Mother incorporates her argument from the first issue on appeal. See , e.g., Mother's Brief at 30, 32. It is well-settled that incorporation by reference does not constitute a properly developed argument. See Hrinkevich v. Hrinkevich , 676 A.2d 237, 241 (Pa. Super. 1996); see also Commonwealth v. Briggs , 12 A.3d 291, 342-343 (Pa. 2011). --------
Here, the trial court ordered that, because Father retained both legal and physical custody of Child, "there is no reason or basis in law for the court to address [] Mother's Petition for Relocation." Trial Court Opinion and Order, 1/20/17, at 25. We discern no abuse of discretion, as the issue of relocation became moot based upon the fact that Child would not be moving and would continue to reside in Pennsylvania. See , e.g., D.K. v. S.P.K., 102 A.3d 467, 472 (Pa. Super. 2014) (noting that the relocation provisions set forth in section 5337 must be addressed where a change in residence of the child affected the non-relocating parent's ability to exercise custodial rights).
In her third claim, Mother contends that the trial court erred in admitting and relying upon the guardian ad litem's report. Mother's Brief at 32, 36, 37-38. Mother argues that the report primarily reiterates information that had been established in prior proceedings and was thus irrelevant. Id. at 33-35. Mother further argues that even if the report was relevant, it was cumulative of other evidence and should not have been given any weight by the trial court. Id. at 35, 37. Mother also claims that the guardian did not conduct an extensive and thorough investigation prior to producing the report as required by 23 Pa.C.S.A. § 5334. Mother's Brief at 36-37.
Here, Mother failed to raise this claim in her Rule 1925(b) Concise Statement. Thus, the claim is waived on appeal. See Ramer v. Ramer , 914 A.2d 894, 902 (Pa. Super. 2006) (concluding that mother's claim in a custody case was waived on appeal because it had not been raised in her Rule 1925(b) statement); see also Pa.R.A.P. 1925(b)(4)(vii).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/15/2017
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