Opinion
J-A06027-17 No. 2743 EDA 2016
05-22-2017
J.G., Appellant v. J.G., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order July 27, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-18650 BEFORE: PANELLA, SHOGAN, and RANSOM, JJ. MEMORANDUM BY SHOGAN, J.:
This is an appeal in a custody case by J.G. ("Mother"). She and J.G. ("Father") had four children. Mother appealed the order denying her request to relocate with the parties' youngest child, nine-year-old A.G., to Boca Raton, Florida. The July 27, 2016 order also denied 1) Mother's petition to modify the existing custody order, and 2) her separate petition for special relief requesting that A.G. be immediately withdrawn from his present Hebrew school and enrolled in a different one mutually agreed upon by the parties. Finally, the order denied Father's petition to modify the existing custody order in which he requested equally shared physical custody; however, the trial court granted Father's alternative request to increase his partial physical-custody time. Upon careful review, we affirm.
Of the parties' three oldest children, two daughters were ages thirty-one and twenty-four years old in 2015; the second-oldest child, who would have been twenty-nine years old, was tragically killed by a drunk driver when she was nineteen years old in 2005. N.T., 2/17/16, at 24; Custody Evaluation by Anthony M. Pisa, Ph.D., 12/29/15, Mother's Exhibit 1 ("Pisa Report"), at 3, 13-14.
The record reveals that Mother and Father separated in 2012 after thirty-three years of marriage. N.T., 2/18/16, at 5. Mother testified that after the parties' daughter died in July of 2005, the parties planned to have "another child to make us feel whole again." Id. at 7, 11. A.G. was born seventeen months later in October of 2007. Id. at 5, 10. The parties separated in April of 2012, and a divorce decree was issued in December of 2014. Id. at 5-6.
The parties stipulated to the existing custody order dated January 13, 2014. It granted them shared legal custody, Mother primary physical custody, and Father partial physical custody every Wednesday overnight during the school year. In addition, the order granted Father physical custody on alternating weekends from "Friday after school through Sunday at 8:00 p.m. and on the next alternating weekend . . . from Friday after school through Monday morning return to school, or if there is no school, to Mother's home by 9:00 a.m." Order, 1/13/2014, at ¶ 2(b).
Father resides in the former marital home in Wynnewood, Pennsylvania, with his girlfriend, Stefanie Cutler. Pisa Report at 3. Mother resides in an apartment in Bala Cynwyd, Pennsylvania. Id. A.G. attends school in the Lower Merion School District, and he has an Individualized Education Plan ("IEP") due primarily to reading difficulties. N.T., 6/14/16, at 242-243. In addition, A.G. is diagnosed with Attention Deficit Disorder ("ADD") or Attention Deficit Hyperactivity Disorder ("ADHD"). Pisa Report at 9. Father testified that A.G. was recently prescribed Ritalin, which has made him more calm and focused. N.T., 6/14/16, at 240-241.
On April 23, 2015, Mother filed a notice of proposed relocation with A.G. to Boca Raton, Florida. Father responded on April 27, 2015, with a counter-affidavit objecting to the relocation and to modification of the existing custody order. On July 6, 2015, Mother filed a petition to modify the existing custody order, wherein she requested modification of Father's partial physical custody schedule and permission to relocate with A.G. to Florida. On July 16, 2015, Father filed a petition to modify the existing custody order, wherein he requested joint physical custody. Finally, on August 25, 2015, Mother filed a petition for special relief, asking that A.G. be withdrawn from Hebrew school at Temple Beth Hillel and enrolled in a new Hebrew school mutually agreed upon by the parties. Petition for Special Relief, 8/25/15, at 1-2.
"Joint physical custody" is not a term included in the Child Custody Act ("Act"), 23 Pa.C.S. §§ 5321-5340, which governs this custody matter. Rather, the Act includes the term "shared physical custody," which is defined as "the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child." 23 Pa.C.S. § 5322. During these proceedings, Father requested equally shared physical custody.
The trial court held a protracted custody hearing over five days, on February 17-19, and June 14-15, 2016. Mother testified on her own behalf, and she presented the testimony of Anthony M. Pisa, Ph.D., a clinical psychologist appointed to perform a custody evaluation upon agreement of the parties; Robert Tanenbaum, a licensed psychologist; Maria Vetter, an expert in special education consultations; and Laurie Dubow, Mother's friend who owns a real estate company in Florida, who testified via telephone. Father testified on his own behalf, and he presented the testimony of J.S.G., the paternal grandmother; Sharon Grevet, Mother's sister, via telephone; and J.E.G. and F.L.G., the parties' adult daughters, via telephone. On rebuttal, Mother testified again on her behalf and presented the testimony of her friend, Farell Borine.
By order dated July 26, 2016, and filed on July 27, 2016, the trial court denied Mother's request to relocate with A.G. and her petition to modify the existing custody order. Further, the court denied Mother's petition for special relief, wherein she requested A.G.'s withdrawal from his current Hebrew school and enrollment in a different one. The court denied Father's request for equally shared physical custody but granted him additional physical custody overnight on the Thursday evenings preceding Mother's custodial weekends. The court directed that the "January 13, 2014 stipulated custody order shall remain in full force and effect to the extent that it does not conflict with this Order." Order, 7/26/16, at 4.
Mother timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a) opinion on October 18, 2016, wherein it addressed each error asserted by Mother in her concise statement. On appeal, Mother presents the following issues for our review:
1. Whether the [c]ourt erred by failure to individually address the sixteen (16) custody factors and ten (10) relocation factors when issuing its Order?
2. Whether the [t]rial [c]ourt erred in concluding that Appellee-Father should be awarded additional physical custody?
3. Whether the [t]rial [c]ourt erred in fashioning a custody order based upon an improper conclusion that Appellee-Father spent "meaningful time together with the child on Wednesday?["]
4. Whether the [t]rial [c]ourt erred in failing to give the appropriate weight to the fact that Appellee-Father repeatedly stated that if he were permitted substantially similar time with the child he would consent to the relocation to Florida?
5. Whether the [t]rial [c]ourt erred in failing to place appropriate weight on the fact that Appellee-Father testified that he considered [Appellant-]Mother's proposal to stop support payments if she were able to relocate with the child, and that the main reason he declined was because he was concerned about what his other children might think of him?
6. Whether the [t]rial [c]ourt erred in fashioning a custody order based upon an improper conclusion that the child has a close relationship with his two adult sisters, as this conclusion is in direct contradiction to the wealth of evidence and testimony presented to the contrary?
7. Whether the [t]rial [c]ourt erred by in [sic] fashioning a custody order based upon an improper conclusion that the child had developed a close relationship with Paternal Grandparents, Aunts, Uncles, and cousins?Mother's Brief at 3-4.
8. Whether the [t]rial [c]ourt erred in fashioning a custody order based upon an improper conclusion that the child would not have similar family relationships or a similar support system in Florida?
9. Whether the [t]rial [c]ourt erred in fashioning a custody order based upon an improper finding that "there was no persuasive evidence presented at the hearing that the quality of the child's education would improve, or remain consistent for that matter, if the child relocates to Florida," which is contrary to all the evidence and testimony presented, specifically the education expert presented by Appellant-Mother?
10. Whether the [t]rial [c]ourt erred in fashioning a custody order based upon an improper conclusion that there was "no persuasive evidence that the relocation would enhance the general quality of life for the child financially or emotionally?"
11. Whether the [t]rial [c]ourt erred in fashioning a custody order based upon improperly speculating that Appellant-Mother may not be willing to promote the child's relationship with Appellee-Father if the child were permitted to relocate?
12. Whether the [t]rial [c]ourt erred in applying and adopting Dr. Anthony Pisa's conclusion that if the child were to relocate to Florida, "in his opinion the child's loss from being separated from Father and Father's extended family would outweigh any benefit gained by Mother in relocating?"
13. Whether the [t]rial [c]ourt erred in failing to consider the uncontroverted and well-reasoned preference of the child, which was to be able to relocate with Appellant-Mother?
14. Whether the [t]rial [c]ourt erred in failing to adjudicate the underlying issues outlined in the Petition for Special Relief?
In custody cases under the Child Custody Act, ("the Act"), 23 Pa.C.S. §§ 5321-5340, our 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.C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (internal citation omitted). This Court "will accept the trial court's conclusion unless it is tantamount to legal error or unreasonable in light of the factual findings." M.G. v. L.D., ___ A.3d ___, ___, 2017 PA Super 29, *5 (Pa. Super. 2017) (citing S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)).
Further, we have stated the following:
[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. 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)).
The primary concern in any custody case is the best interests of the child. "The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being." Saintz v. Rinker , 902 A.2d 509, 512 (Pa. Super. 2006), (citing Arnold v. Arnold , 847 A.2d 674, 677 (Pa. Super. 2004)).
Section 5328(a) of the Act sets forth the best interest factors that the trial court must consider when awarding custody. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). Those factors are 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)(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.
23 Pa.C.S. § 5328(a).(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.
Section 5337(h) of the Act sets forth the following ten relocation factors that a trial court must consider when ruling on a relocation petition:
(h) Relocation factors.—In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:
(1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child's life.
(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.
(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.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(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.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.
23 Pa.C.S. § 5337(h). "As the custodial parent seeking to relocate . . . , Mother had the burden of establishing that relocation is in her son's best interest." See 23 Pa.C.S. § 5337(i) ("Burden of proof.—(1) The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child as shown under the factors set forth in subsection (h)."). D.K.D. v. A.L.C., 141 A.3d 566, 573 (Pa. Super. 2016), appeal denied, ___ A.3d ___, 2016 WL 6462545 (Pa. filed November 1, 2016). In addition, "[e]ach party has the burden of establishing the integrity of that party's motives in either seeking the relocation or seeking to prevent the relocation." 23 Pa.C.S. § 5337(i)(2).(10) Any other factor affecting the best interest of the child.
Turning to the first issue on appeal, Mother asserts that the trial court erred by failing to address individually the Section 5328(a) custody factors and the Section 5337(h) relocation factors when issuing the subject order. This issue is waived. Mother fails to support her two-sentence contention, completely lacking in specificity, with any authority. Pa.R.A.P. 2119(b); Banfield v. Cortes , 110 A.3d 155, 168 n.11 (Pa. 2015) ("Where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue, . . . that claim is waived. It is not the obligation of an appellate court to formulate an appellant's arguments for him. Wirth v. Commonwealth , 95 A.3d 822, 837 (Pa. 2014)." See also In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that issues are waived if appellate brief fails to provide meaningful discussion with citation to relevant authority).
Even if not waived, we would conclude the claim is without merit. In its order, the trial court stated that it "considered the custody factors as set forth in 23 Pa.C.S. § 5328(a)(1) through (a)(16), as well as the relocation factors as set forth in 23 Pa.C.S. § 5337(h)(1) through (h)(10) and weighed these factors with the evidence presented. . . ." Order, 7/26/16, at 1. Thereafter, the court delineated the reasons for its custody and relocation decisions. Id. at 2-4. As such, we discern no legal error by the trial court.
Similarly, with respect to the fifth issue, we conclude that Mother's one-sentence claim is waived for her failure to provide meaningful discussion with citation to relevant legal authority. Banfield , 110 A.3d at 168 n.11; In re W.H., 25 A.3d at 339 n.3. Even if not waived, we would discern no abuse of discretion. The trial court addressed the issue at length, in contrast to Mother's brevity. Further, we would adopt as dispositive of Mother's fifth issue the trial court's Rule 1925(a) opinion. Trial Court Opinion, 10/18/16, at 15-16.
In delineating the reasons for its custody and relocation decisions, the trial court set forth its factual findings and made determinations regarding credibility and weight of the evidence. Order, 7/26/16, at 2-4. In addition, in its Rule 1925(a) opinion, the trial court set forth its factual findings, which are supported by the testimonial evidence. Trial Court Opinion, 10/18/16, at 1-4.
Importantly, the trial court found credible the testimony and opinion of the custody evaluator, Dr. Pisa, who was appointed by agreement of the parties. The court admitted into evidence Dr. Pisa's thorough and comprehensive custody evaluation report. Pisa Report, 12/29/15, at 1-75. Dr. Pisa opined, "[T]he child's 'loss' from being separated from Father and Father's extended family would outweigh any benefit gained by Mother in relocating." Order, 7/26/16, at 3. The trial court explained as follows:
Dr. Pisa testified that . . . Mother's negative behavior towards . . . Father thwarts the child's relationship with . . . Father, and that it could have a very negative psychological impact on the child. If . . . Mother were permitted to relocate to Florida, Dr. Pisa supported the contention that . . . Mother will have even more of an opportunity to thwart . . . Father's relationship with the child.Trial Court Opinion, 10/18/16, at 3-4 (citations to record omitted); see also N.T., 2/17/16, at 122 ("[I]t's my opinion within a reasonable degree of psychological certainty that [A.G.'s] loss about being separated from [F]ather in a way that would divorce [Father] from participation in [A.G.'s] normal developmental experience and [F]ather's extended family are losses that . . . outweigh the benefit to [M]other if she were to move . . . .").
Dr. Pisa's December 29, 2015 final report . . . states that [he] does not recommend that the child relocate to Florida. Dr. Pisa states that ". . . the benefits derived by Mother as a result of the move would have to be weighed against the losses incurred by the child by being displaced from Father and Father's extended family . . . the child would continue to derive benefit from being exposed to Father particularly as he grows older . . . if the child were to stay in Philadelphia, he would have the benefit of two caring parents. . . .
In this appeal, but for her second and fourteenth issues, Mother asserts that the trial court erred in denying her proposed relocation, claiming that the testimonial evidence does not support the trial court's factual findings, or the trial court improperly weighed the testimonial evidence. We have thoroughly reviewed the testimony, and we disagree.
Indeed, with respect to all of the foregoing issues wherein Mother asserts that the trial court erred in denying her proposed relocation with A.G. to Boca Raton, Florida, we conclude the testimonial evidence overwhelmingly supports the court's factual findings, and its conclusions are reasonable in light of those findings. Thus, we discern no abuse of discretion. Further, because this Court must defer to the determinations of the trial judge with respect to the weight of the evidence, Mother's issues in that regard also fail. C.R.F., 45 A.3d at 441. Accordingly, we adopt as dispositive of Mother's third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteen issues on appeal, the trial court's Rule 1925(a) opinion. Trial Court Opinion, 10/18/16, at 11-29.
The parties are directed to attach a copy of the opinion in the event of further proceedings in this matter. --------
In Mother's second issue, she argues that the trial court erred in granting Father additional physical custody overnight on the Thursdays preceding Mother's custodial weekends. Specifically, Mother contends that the court "failed to give proper weight to the fact that Father consistently failed to exercise custodial time provided to him by the" existing custody order and failed to exercise extra custodial time Mother offered him. Mother's brief at 11. In addition, Mother avers, "Father had a history of passing off his parental duties to [her]. . . ." Id. at 12. We disagree.
The trial court acknowledged that "Father does not always take advantage of the time when the child is available to him." Order, 7/26/16, at 4. Further, in its Rule 1925(a) opinion, the trial court referenced Dr. Pisa's statement in his report that he "would not recommend consideration of an equally shared [physical custody] arrangement until Father demonstrates over time that he takes advantage of all the time the child is available to him." Trial Court Opinion, 10/18/16, at 12 (citation to record omitted) (emphasis added). In addition, the trial court found that equally shared physical custody "may be too great a change in the child's routine and schedule at this time. . . ." Id. at 12-13. Thus, the trial court denied Father's request for equally shared physical custody.
Nevertheless, the trial court concluded that it would be in A.G.'s best interest to modify Father's partial physical custody schedule by granting Father "two additional overnights . . . per month." Trial Court Opinion, 10/18/16, at 12. The court explained that it granted Father's alternative request for overnights on the Thursday evenings preceding Mother's custodial weekends "based on the evidence presented that [Appellee] Father and the child share a close relationship and that [Appellee] Father is able to care for the child." Id. at 13. Upon thorough review of the testimonial evidence, we discern no abuse of discretion by the trial court in modifying the existing custody order by granting Father extra overnights on the Thursdays that precede Mother's custodial weekends. Therefore, Mother's second issue fails.
In her fourteenth and final issue, Mother asserts that the trial court erred in failing to adjudicate the underlying issues in her petition for special relief. Specifically, Mother claims the trial court failed to enter an order with respect to "which Synagogue the child should attend services and Hebrew School." Mother's brief at 22. Mother's issue is meritless.
Contrary to Mother's assertion, the trial court stated in its Rule 1925(a) opinion that it adjudicated the underlying issues by denying her petition for special relief. Trial Court Opinion, 10/18/16, at 17. Indeed, in her petition, Mother requested that A.G. be immediately withdrawn from Hebrew school at Temple Beth Hillel and enrolled in a new Hebrew school mutually agreed upon by the parties. By denying Mother's petition, the court declined to order that A.G. be withdrawn from his current Hebrew school. Upon careful review of the totality of the testimonial evidence in this case, we discern no abuse of discretion by the court in denying Mother's petition. Therefore, we reject Mother's final issue.
Upon review, we conclude that the trial court carefully and thoroughly considered A.G.'s best interests in its custody determinations. Because the competent evidence of record supports the trial court's findings, and the trial court's conclusions are reasonable in light of those findings, we affirm the order denying Mother's request to relocate with A.G. to Boca Raton, Florida, her petition to modify the existing custody order, and her petition for special relief. In addition, we affirm the custody order modifying Father's partial physical custody schedule granting him additional overnights on the Thursdays preceding Mother's custodial weekends.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/22/2017
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