Opinion
1854 EDA 2021 J-A04002-22
04-19-2022
JACLYN HELFRICH N/K/A JACLYN BORCHICK v. RYAN HELFRICH Appellant
Joseph D. Seletyn, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 11, 2021 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2019-FC-0669
Joseph D. Seletyn, Esq. Prothonotary
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM
LAZARUS, J.
Ryan Helfrich (Father) appeals from the order, entered in the Court of Common Pleas of Lehigh County, granting Jaclyn Helfrich n/k/a Jacklyn Borchick (Mother) primary physical custody of the parties' three minor children K.F.H. (age 11), L.Q.H. (age 9), and L.S.H. (age 9), during the school year, granting Father partial physical custody during the school year (alternating weekends and weekly dinner), granting the parties shared physical custody during the summer on a week-on/week-off basis, and denying Father's counterclaim for shared physical custody during the school year. After our review, we affirm based on the opinion authored by the Honorable Michele A. Varricchio, see Pa.R.A.P. 1925(a) opinion, 10/5/21, which incorporates Judge Varricchio's July 30, 2021, Memorandum of Factors (analysis of statutory custody factors). See N.T. Hearing, 6/7/21, at 60-71.
The court awarded the parties shared legal custody, both in the original January 14, 2021 order, and in the current order. We note this for Mother's benefit as her testimony indicates she had previously been under the misapprehension that she was the final decision-maker. N.T. Custody Trial, 7/13/21, at 181. To reiterate, the parties "shall consult and cooperate with one another on the major decisions affecting the Children's lives, including, but not limited to, medical, religion and educational decisions." See Custody Order, 8/11/21, at ¶ 2; Custody Order, 1/14/21, at ¶ 2. Mother may believe she is the "better parent," as she testified at trial, but as Father wisely stated, "both of us play an important role with our children." N.T. 7/13/21, at 260. It is in the children's best interest that neither parent obstruct the role the other plays in their children's lives. See Order, 8/11/21, at ¶ 9 ("The parents shall foster and encourage the children's love, affection and respect for the other parent and shall refrain from any attempt, directly or indirectly, to estrange the children from a parent.").
The parties were married in 2009, separated in 2019, and divorced in 2021. On January 14, 2021, the trial court entered a custody order, which granted Mother primary physical custody of the children, subject to Father's partial physical custody on alternating weekends and weekly dinners.
On April 5, 2021, Mother filed a petition for special relief, indicating that she had moved to an apartment in the Saucon Valley School District and wanted the children's educational records moved so the children could be enrolled in the new school district. Father filed an answer and counterclaim, alleging that he was living in the marital residence, located in Parkland School District, and requesting 50/50 shared physical custody during the school year so that the children could continue to go to school in the Parkland School District.
See Father's Amended Answer and Counterclaim to Mother's Petition for Special Relief for Release of Educational Records., 6/3/21, at 4-5 ¶ 22-23.
Mother admitted that she moved without obtaining a court order. See N.T., Custody Trial, 7/13/21, at 135. See also Custody Order, 1/14/21, at ¶ 16 ("In the event either party desires to relocate, he/she shall provide Notice as required by 23 Pa.C.S.A. § 5337 and Pa.R.C.P. 15-4-4. No relocation shall occur unless every individual who has custody rights to the Children consents, or the court approves the proposed relocation."). The distance between the two school districts is approximately 19 miles, and about a 20-minute drive. See N.T. supra, at 203. Father presents no issue of relocation on appeal, see 23 Pa.C.S.A. § 5337, but raises Mother's move as part of his claim that he should have been awarded 50/50 shared custody, arguing that the court improperly weighed the statutory factors, in particular, factor 11 (the proximity of the residences of the parties). 23 Pa.C.S.A. § 5328(a)(11). Appellant's Brief, at 27.
After a hearing on June 7, 2021, the court denied Mother's petition for special relief and scheduled a custody trial on Father's counterclaim for shared physical custody.
Following a three-day trial, the court entered the August 11, 2021 order denying Father's request for shared physical custody and providing Father with partial physical custody during the school year and shared physical custody during the summer on a week-on/week-off basis. Father filed a timely appeal and a contemporaneous Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
See Pa.R.A.P. 1925(a)(2) (in children's fast track appeal, concise statement of errors complained of on appeal shall be filed and served with notice of appeal).
Father raises the following issues for our review:
1. Whether the trial court committed an error of law and abuse of discretion in issuing the order entered on August 11, 2021 and providing Mother with primary physical custody during the school year as it failed to appropriately weigh the factors identified in 23 Pa.C.S.A. § 5328 in light of the facts and evidence of record elicited at trial in this matter, specifically, factors 3, 4, 8, 9, 11, 13, and 16?
2. Whether the trial court committed an error of law and abuse of discretion in issuing the order entered on August 11, 2021 as it is contrary to the best interests and permanent welfare of the subject children as it requires that the children change school districts and does not provide them with sufficient time with Father?
3. Whether the trial court committed an error of law and abuse of discretion as the court clearly exhibited unwarranted bias against Father for his prior criminal history, which Mother was aware of prior to marrying and having children with Father, and which never impacted the children or Father's ability to appropriately care for the children in any manner?
4. Whether the trial court committed an error of law and abuse of discretion in permitting and relying upon testimony from Corporal Richard Webb, a neighbor, regarding potential retaliation and potential harm to the children as a result of Father's criminal activity[, ] as said testimony was entirely speculative and irrelevant and should have been excluded?
5. Whether the trial court committed an error of law and abuse of discretion in failing to appropriately assess the impact on the children spending Mother's alternating weekends with Mother and her paramour, thereby spending the same amount of time with Father as Mother's paramour, as well as Mother's cavalier decision to introduce the children to her paramour only four (4) months after her separation from Father and only two (2) months after meeting him online?Appellant's Brief, at 4-6 (footnote added).
Father acknowledged his federal felony drug conviction in 2003, prior to the parties' marriage, for which he served one year in federal prison. He served no prison time for his 2019 state offense (possession with intent to deliver marijuana), for which he entered a guilty plea to possession and was sentenced to probation. N.T. Custody Trial, 7/13/21, at 221, 235-36. Father's claim that the court was biased against him due to his criminal convictions is not borne out in the record. Further, the court could properly consider criminal convictions under section 5328(a)(16) (any other relevant factor), and, in particular, under section 5329 of the Child Custody Act, which provides:
§ 5329. Consideration of criminal conviction
(a) Offenses.--Where a party seeks any form of custody, the court shall consider whether that party or member of that party's household has been convicted of or has pleaded guilty or no contest to any of the offenses in this section or an offense in another jurisdiction substantially equivalent to any of the offenses in this section. The court shall consider such conduct and determine that the party does not pose a threat of harm to the child before making any order of custody to that party when considering the following offenses: Section 13(a)(1) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to the extent that it prohibits the manufacture, sale or delivery, holding, offering for sale or possession of any controlled substance or other drug or device.23 Pa.C.S.A. § 5329(a).
In any custody case decided under the Child Custody Act, 23 Pa.C.S.A. §§ 5321 et seq., the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. 23 Pa.C.S.A. § 5338; see also E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011). Section 5328(a) sets forth the statutory factors that the trial court must consider when making a "best interest of the child" analysis under the statute. 23 Pa.C.S.A. § 5328(a).
§ 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.
(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).
Our scope and standard of review is as follows:
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.C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted). See also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015). This Court has held that
the 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) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). Further, on issues of credibility and weight, we defer to the trial court, which has had the opportunity to observe the proceedings and the demeanor of the witnesses. R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009).
Father argues the trial court improperly weighed various custody factors, suggesting that some favored him or were neutral, and others should have been weighed against Mother. However, "[t]he 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. (internal citations omitted). This Court's interference is "unwarranted" where the court considered the best interests of the children and engaged in a careful and thorough analysis. Id.
Here, the trial court analyzed the statutory factors and clearly considered the children's best interests. The court acknowledged that the change in schools was a disruption for the children, but stated that despite that, "[this court has] heard only good things from the [children] about them enjoying the other kids there, that they're able to maintain Facetime and connection with the kids that they have in their old neighborhood, and that they've formed new relationships [in] their new neighborhood." N.T. Custody Trial, 7/30/21, at 10. Further, the court noted that despite the disruption from the school and neighborhood change, maintaining primary custody in Mother was vital to the children's stability. Id. at 12. The court also noted that Mother had some valid reasons to place the children in the Saucon Valley School District. See N.T., supra at 191 (Mother testified, "[M]y job is there. My family is there. My support system is there. I have several coworkers who live very close."); N.T. Custody Trial, 7/21/21, at 61-63, 65, 117 (Mother testified Saucon Valley School District was full-time in-person learning during pandemic, as opposed to Parkland, which was hybrid learning; Saucon Valley was smaller school, with smaller class sizes; Mother testified to shorter commutes to work, and to nearby presence of her parents and sister, all of whom provided some childcare for children).
After our review of the parties' briefs on appeal, the record, and the relevant law, we are unable to conclude that the court abused its discretion or committed an error of law. Ketterer, supra. Judge Varricchio's opinion and memorandum provide a detailed examination of the evidence and a sufficient analysis of the section 5328(a) custody factors, with a primary focus on the best interests of the children. See Trial Court Opinion, supra at 4-6 (court incorporated its memorandum setting forth analysis of custody factors; court did not err in permitting testimony of Corporal Richard Webb, Jr., a neighbor and State Police Officer, as Father introduced the testimony and, further, at no time did Father seek to have any of the testimony stricken; court considered impact of children spending weekends with Mother and her paramour, interviewed children on this issue, and considered all aspects of how Mother's relationship affected children).
We affirm the court's order based on Judge Varricchio's opinion. We direct the parties to attach a copy of the opinion and memorandum in the event of further proceedings.
Order affirmed. Judgment Entered.
No. 2019-FC-0669
CIVIL
ASSIGNED TO: The Honorable Mtchele A. Varricchio
PA.R.A.P. 1925(A) OPINION
Michele A. Varricchio, J.
AND NOW, this 5th day of October, 2021, the undersigned enters the following opinion pursuant to Pennsylvania Rules of Appellate Procedure 1925(a):
On July 13, 2021, July 21, 2021, and July 28, 2021, the Court held a custody trial in regard to the minor Children, Kali F. Helfrich, born January 24, 2010, Lincoln Q. Helfrich, born March 8, 2012, and Logan S. Helfrich, born March 8, 2012 (Children). On July 30, 2021, the Court filed, as a Memorandum of Factors, the analysis of factors and decision set forth on the record on July 28, 2021. On August J1, 2021, in accordance with the Memorandum of Factors, the Court entered a Final Custody Order, which during the school year vested primary physical custody of the Children with Jaclyn Helfrich n/k/a Jaclyn Borchick (Mother) and partial physical custody on alternating weekends with Ryan Helfrich (Father). The August 11, 2021 Final Custody Order further provided that during the summer break from school, Mother and Father shared physical custody on an alternating week-on/week -off schedule.
On September 10, 2021, Father timely filed a Notice of Appeal to the Superior Court of Pennsylvania at Docket Number from the August 11, 2021 Final Custody Order. Because this is a Children's Fast Track Appeal, Father contemporaneously filed his Statement of Errors Complained of on Appeal to Pursuant to Pa.R, A.P. 1925(a)(2) (Concise Statement).
In his Concise Statement, Father raised five main allegations of error, as well as seven subparts, related to the August 11, 2021 Order and Memorandum Opinion, which are reproduced here verbatim:
1. The Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on August 11, 2021 and providing Mother with Primary Physical Custody during the School Year as it failed to appropriately weigh the factors identified in 23 Pa. C.S.A. § 5328 in light of the facts and evidence of Record elicited at Trial in this matter, specifically as follows:
a. Custody Factor 3, the parental duties performed by each party on behalf of the child should have been found to be neutral as opposed to weighed in favor of Mother. It appears that the Court weighed this factor heavily in favor of Mother as the Court noted that the ruling was largely based on maintaining Primary Custody with Mother, finding that she has had the main job of performing the parental duties regarding the Children. Finding this factor in favor of Mother essentially punishes Father for being the main breadwinner and provider during the parties' marriage. The Court also appears to prejudice Father for somehow failing to secure the Marital Home in the Parties' Divorce sooner as it slated that the Court does not yet have a long track record of Father in the Marital Residence as a single Parent. That delay was not in any way related to Father's procrastination as Father's Petition for Exclusive Possession was filed on December 12, 2019. Further, the issue of possession and ownership of the Marital Home could not be resolved until the Divorce Master's Hearing of March of 2021;
b. Custody Factor 4, the need for stability and continuity in the child's education, family life and community life, should have been heavily weighed in favor of Father. Despite the Court acknowledging that the Children stated that they are comfortable in Father's Home, which is the prior Marital Home, and remarking that the Children are comfortable in the community and their Schools, it does not appear that the Court appropriately weighed this factor heavily in favor of Father;
c. Custody Factor 8, the attempts of a parent to turn the child against the other parent, should have been weighed in favor of Father as the evidence and testimony presented at Trial showed that Mother was engaging in a pattern of behavior to exclude Father from the important decisions and aspects of the Children's lives. Despite the Court noting that Mother admittedly failed to acknowledge Father's rights as a Parent and her failure to abide by the tenets of Shared Legal Custody in various aspects, and that she told the Children that Father had gone to jail in the past, it
appears that the Court weighed this factor as neutral when it should have been weighed in favor of Father;
d. Custody Factor 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, should have been weight neutral. It appears that the Court weighed this factor in favor of Mother solely based on Father's prior criminal record. The Court unnecessarily gave great weight to a Guilty Plea entered nearly twenty (20) years ago and which Mother apparently felt to be insignificant since she Married Father and had Children with him thereafter;
e. Custody Factor 11, the proximity of the residences of the parties should have been weighed heavily in favor of Father. Although the Court noted that it is proximity of the residences that creates the biggest issue in this case, it does not appear that the Court appropriately weighed this factor heavily in Father's favor as Mother chose to relocate with the Children to Hellertown as opposed to securing a residence closer to the former Martial I lome and in the Children's current School District. Mother in fact admitted that she did not make a good faith effort to secure appropriate housing in the Parkland School District, which would minimize the impact upon the Children;
f. Custody Factor 13, the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another, should have been weighed in Father's favor based on the evidence and testimony elicited at Trial. The Court failed to consider and appropriately weigh the fact that Mother moved the Children to a residence outside of their School District, without notifying Father, without receiving Father's consent, and without receiving a Court Order permitting her to do so. Mother only proceeded to Court after she had already moved the Children, when the Children's current School District would not release their Educational Records without Father's consent; and
g. Custody Factor 16, any other relevant factor, should not have been weighed against Father as Father's alleged criminal activity has had no impact on the Children or Father's ability to care for the Children and maintain a loving and stable household.
2. The Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on August 11, 2021 as it is contrary to the best interests and permanent welfare of the subject Children as it requires that the Children change School Districts and does not provide them with sufficient time with Father.
3. The Trial Court committed an Error of Law and Abuse of Discretion as the Court clearly exhibited unwarranted bas against Father for his prior Criminal History which Mother was aware of prior to Marrying and having Children with Father, and which never impacted the Children or Father's ability to appropriately care for the Children in any manner.
4. The Trial Court committed an Error of Law and Abuse of Discretion in permitting testimony from Corporal Richard Webb, a neighbor, regarding potential retaliation and potential harm to the Children as a result of Father's criminal activity as said Testimony was entirely speculative and irrelevant and should have been excluded. Nevertheless, the Court appears to have relied heavily on Corpora! Webb's testimony.
5. The Trial Court committed an Error of Law and Abuse of Discretion in failing to appropriately assess the impact on the Children spending Mother's alternating weekends with Mother and her paramour, rather than Mother alone, as admitted by Mother, as well as Mother's cavalier decision to introduce the Children to her paramour only three (3) months after her separation from Father.Father's Concise Statement, ¶¶ 1-5.
With regard to Father's first contention of error and subparagraphs a through g, as well as Father's second and third contentions of error, the reasons for this Court's decision were sufficiently set forth on the record on July 28, 2021 and filed as a Memorandum of Factors on July 30, 2021. The Court incorporates that Memorandum of Factors herein, as if fully set forth. However, the Court adds the following supplemental discussion related to Father's fourth and fifth issues on appeal.
In his fourth issue on appeal, Father contends that the Court erred in permitting Richard Webb, Jr., a neighbor and corporal with the Pennsylvania State Police, to testify regarding potential retaliation and harm to the Children as a result of Father's criminal activity. Upon review of the record, it appears that Father's own attorney introduced testimony from Corporal Webb regarding the potential retaliation and harm that the Children might be exposed to as a result of Father's criminal activity. See Notes of Testimony (N.T.), 7/21/21, at 159:11-161:16. Mother's attorney did not object. In fact, it was this Court that stopped the questioning because it was speculative. See NT., 7/21/21, at 161:1-16. Had it not been for the cross-examination of Corporal Webb by Father's attorney, there would not have been any evidence from Corporal Webb regarding retaliation because this Court did not allow any testimony regarding retaliation during Corporal Webb's direct examination by Mother's attorney, See N.T., 7/21/21, at 149:22-150:14. After questioning of Corporal Webb ceased, this Court commented that Corporal Webb's testimony on behalf of Mother is akin to Wayne Stevens, testimony on behalf of Father. Both men live in the same neighborhood as the marital residence, and were able to speak to the positive and negative attributes of that neighborhood prior to and after Father's criminal activity. At no time did Father's attorney ask the Court to strike the entirety of Corporal Webb's testimony as irrelevant and/or speculative. As such, Fathers fourth issue on appeal appears to be waived and thus, meritless.
In his fifth issue on appeal. Father contends that this Court did not appropriately consider "the impact on the Children spending Mother's alternating weekends with Mother and her paramour, rather than Mother alone, as well as Mother's cavalier decision to introduce the Children to her paramour only three (3) months after her separation from Father." Father's Concise Statement, ¶ 5. Contrary to Father's contention, the Court did consider this issue. At this time, Mother has been in a relationship with her boyfriend, Liam Fay, for over two years. He is not a stranger to the Children. They are comfortable in his presence. In particular, during the in camera interview of the Children, the Court asked each of the Children about Liam. Each described him as good or kind, and none expressed reservations or concerns about his interactions with them, though one Child did mention some typical childhood annoyance with one of Liam's children. See Notes of Testimony (NT.), 7/28/21, at 22:19-23:20, 38:3-23, 47:12-50:2. That Mother chose to introduce Liam to her Children after three months is not wholly unreasonable or contrary to the welfare of the Children. Father's fifth issue on appeal appears to be meritless.
For ail of these reasons, the Court respectfully requests that the Superior Court of Pennsylvania affirm the August 11, 2021 Final Custody Order.