Opinion
J-S62044-15 No. 945 WDA 2015
10-21-2015
S.K.W. Appellee v. J.C.S. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 14, 2015
In the Court of Common Pleas of Crawford County
Civil Division at No(s): F.D. No. 2014-50
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, J.C.S., appeals from the order entered in the Crawford County Court of Common Pleas, which granted primary physical custody of the parties' minor child, G.O.S. ("Child"), to Appellant, subject to periods of partial custody by Appellee, S.K.W. We affirm.
The relevant facts and procedural history of this appeal are as follows. The parties began a same-sex relationship in 2007 or 2008. Appellee moved into Appellant's home around one year later. Appellant is the biological mother of Child, who was born in 2010, and Child's younger twin siblings. Appellee became an adoptive parent of Child in July 2011. The parties subsequently had relationship difficulties, and Appellee moved out of Appellant's home in August 2013. Following the separation, Appellee initially had informal visits with Child on Monday evenings and one day each weekend.
Appellee filed a custody complaint on February 18, 2014, seeking shared legal and physical custody of Child and Child's siblings. On September 23, 2014, Appellee amended the complaint to request shared custody of Child only. Following a mediation conference, the court entered an initial custody order on December 5, 2014, which, inter alia, granted Appellant primary physical custody of Child. Appellee was granted partial physical custody of Child, which entitled Appellee to visit Child each week on Monday from 4:00 p.m. to 7:00 p.m. and on either Saturday or Sunday from 10:00 a.m. to 6:00 p.m.
On December 15, 2014, Appellee filed a motion for a de novo hearing. Following that hearing, the court entered a custody order on May 14, 2015, which again granted Appellant primary custody of Child, subject to periods of partial custody by Appellee. Specifically, the new order granted Appellee custody of Child on the first, third, and fourth weekend of every month, as well as from 4:00 p.m. to 7:00 p.m. on each weekday (Monday through Thursday) that Appellant is working. On June 11, 2015, Appellant filed a timely notice of appeal and concise statement of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).
Appellant is a firefighter who works a twenty-four hour shift and is off for forty-eight hours before beginning a new shift.
Appellant raises the following issues for review:
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN FAILING TO CONSIDER APPELLANT'S EMPLOYMENT SCHEDULE IN FASHIONING A CUSTODY ORDER WHICH NOW RESULTS IN...CHILD BEING WITH HER SIBLINGS AND...APPELLANT ONLY TWO, NONCONSECUTIVE, WEEKEND DAYS EACH MONTH.
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN ITS APPLICATION OF THE CUSTODY FACTORS TO THE FACTS AND CIRCUMSTANCES OF THIS CASE, AS FOLLOWS:
A. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DETERMINING THAT [APPELLEE] WAS MORE LIKELY TO ENCOURAGE AND PERMIT FREQUENT AND CONTINUING CONTACT BETWEEN...CHILD AND APPELLANT.
B. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DETERMINING THAT...CONSIDERATION OF THE FACTORS OF WHICH [OF] THE PARTIES PERFORMED PARENTAL DUTIES ON BEHALF OF...CHILD ONLY "SLIGHTLY" FAVORED...APPELLANT.
C. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN NOT APPROPRIATELY CONSIDERING THE NEED FOR STABILITY AND CONTINUITY IN...CHILD'S EDUCATION, FAMILY LIFE AND COMMUNITY LIFE.
D. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DETERMINING THAT THE CONSIDERATION OF...CHILD'S SIBLING RELATIONSHIPS ONLY "SLIGHTLY" FAVORED...APPELLANT.
E. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DETERMINING THAT THE CONSIDERATION OF WHICH PARTY IS MORE LIKELY TO PROVIDE A MORE LOVING, STABLE, CONSISTENT AND
NURTURING RELATIONSHIP WITH...CHILD DID NOT FAVOR EITHER PARTY.
F. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DETERMINING THAT THE CONSIDERATION OF WHICH PARTY IS MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL AND SPECIAL NEEDS OF...CHILD DID NOT [FAVOR] EITHER PARTY. [A]PPELLEE ADMITTED THAT SHE DID NOT PROVIDE ANY SUPPLIES SUCH AS DIAPERS FOR [CHILD] AND DID NOTHING TO SUPPORT [CHILD] AFTER THE PARTIES SEPARATED. IN FACT...APPELLEE FAILED TO PROVIDE ANY SUPPORT UNTIL...APPELLANT FILED A CHILD SUPPORT ACTION AGAINST HER.
G. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DETERMINING THAT THE CONSIDERATION OF THE ABILITY OF THE PARTIES TO COOPERATE WITH ONE ANOTHER SLIGHTLY FAVORED...APPELLEE.
(Appellant's Brief at 3-4).
WHETHER THE [TRIAL] COURT'S INFERENCES AND DEDUCTIONS WERE UNSUPPORTED BY EVIDENCE OF RECORD AND WERE USED IN A PUNITIVE MANNER IN AWARDING APPELLEE SIGNIFICANTLY MORE CUSTODIAL TIME WITHOUT CONSIDERATION OF THE STATUTORY FACTORS AND WHICH RESULTED IN MEANINGFUL TIME WITH APPELLANT AND CHILD'S SIBLINGS BEING SIGNIFICANTLY DECREASED.
In reviewing a child custody order:
[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court 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, this Court must defer to the trial judge who presided over the proceedings and thus viewed 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.S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation omitted). Additionally,
[O]ur Legislature adopted a new Child Custody Act ("Act"), effective on January 24, 2011. See 23 Pa.C.S.A. §§ 5321-5340. The new Act applies to "disputes relating to child custody matters" filed after the effective date of the new law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 33 A.3d 73, 76 (Pa.Super. 2011), we held that the Act applied to any proceeding, including a petition for relocation, initiated by a filing made after the effective date of the Act.Id. With respect to a custody order, Section 5328(a) provides:
§ 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).
23 Pa.C.S.A. § 5328(a). In 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." M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A court's explanation of reasons for its decision, which adequately addresses the relevant custody factors, complies with Section 5323(d). Id. In a child custody proceeding:(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.
[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.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal citations omitted).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.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Anthony J. Vardaro, we conclude Appellant's issues merit no relief. The trial court comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed June 25, 2015, incorporating its Memorandum, filed May 14, 2015, at 2-7) (examining each relevant factor under applicable statute; concluding shared custody arrangement as ordered is in Child's best interest). Accordingly, we affirm on the basis of the trial court's opinion, incorporating its May 14, 2015 memorandum.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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