Opinion
J-A29045-16 No. 816 WDA 2016
12-19-2016
J.L.S. v. R.P.S., JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered May 4, 2016 in the Court of Common Pleas of Armstrong County, Civil Division, No(s): 2011-1474-Civil BEFORE: DUBOW, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
R.P.S., Jr. ("Father"), appeals from the May 4, 2016 Custody Order that denied Father's request for shared custody, which was entered following Father's Petition for Modification of the December 5, 2012 Custody Order that granted J.L.S. ("Mother") primary physical custody of their daughters, F., born in June 2003, and G., born in June 2002 (collectively, "Children"). We affirm.
In its Opinion, the trial court set forth the underlying facts, which we adopt for the purpose of this appeal. See Trial Court Opinion, 5/4/16, at 2-25.
Relevantly, Father and Mother were married in 2002, after living together for an unspecified period of time. Mother filed a Complaint in Divorce in September 2011, which included a claim for temporary physical custody of Children, pending the final hearing. At a Conciliation Conference in December 2011, Father and Mother agreed to a temporary physical custody arrangement. On December 5, 2011, the trial court entered a Custody Order, granting Mother and Father shared legal custody, and granting Mother primary physical custody of Children. On October 20, 2014, Father filed a Petition for Modification of Custody, seeking "to expand his custodial time." On May 4, 2016, the trial court entered a Custody Order granting Mother and Father shared legal custody, and granting Mother primary physical custody of Children. The Custody Order denied Father's request for shared physical custody of Children, and modified portions of the December 5, 2012 Custody Order. Relevant to this appeal, the May 4, 2016 Custody Order provides that Father's partial physical custody of F. may begin when F.'s individual therapist indicates that F. is ready.
Father filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.
We note that although Father's Concise Statement identifies six issues for appeal, the Questions Presented section of his brief identifies only three issues, and the wording of those issues differs from the wording used in the Concise Statement. In the Summary of the Argument section of his brief, Father identifies all six issues, and indicates that the six issues "can be consolidated into three areas of error on behalf of the trial court." Father's Brief at 4. Because the Argument section of his brief includes a discussion of all six issues identified in his Concise Statement, we will consider Father's claims on appeal.
On appeal, Father raises the following questions for our review:
I. Did the trial court err in finding that the best interest[s] of [Children] was for Father to have less custodial time than he had in the previous Order?
II. Did the trial court err in applying the sixteen factors set forth in [section] 5328 of the [Child Custody Act ("Act")]?Father's Brief at 2. We will address Father's issues together.
III. Did the trial court err in rendering decisions not supported by the weight of the evidence and findings of record?
We review a trial court's determination in a custody case for an abuse of discretion, and our scope of review is broad. Because we cannot make independent factual determinations, we must accept the findings of the trial court that are supported by the evidence. We defer to the trial [court] regarding credibility and the weight of the evidence. The trial [court]'s deductions or inferences from its factual findings, however, do not bind this Court. We may reject the trial court's conclusions only if they involve an error of law or are unreasonable in light of its factual findings.C.A.J. v. D.S.M., 136 A.3d 504, 506-07 (Pa. Super. 2016) (citation omitted). Additionally,
[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) (citation omitted).
See 23 Pa.C.S.A. §§ 5321 et seq.
Father claims that the trial court erred in finding that it is in the best interests of Children for Father to have less custodial time. Father's Brief at 5. Father argues that the trial court erred in applying the sixteen factors set forth in section 5328 of the Act. Id. at 6. Specifically, Father challenges the trial court's findings under subsections (4), (6), (7), (10), (14) and (16). Id.
In regard to subsection (4), Father asserts that the trial court failed to consider the stability that F. had since 2014, under the terms of the prior Custody Order. Id. Father also argues that the trial court failed to explain how the requirement that F.'s therapist indicate when she is ready to continue with the custody arrangement will promote continuity or stability. Id. at 6-7.
In regard to subsection (6), Father claims that the trial court "failed to consider the testimony of the court evaluator, and the parties' testimony that the individual therapist of [F.] recommended that [F.] be gradually eased into spending more time with Father...." Id. at 8. Father contends that, therefore, the trial court's decision is against the weight of the evidence. Id. at 9.
In regard to subsection (7), Father argues that the trial court's determination that F. "is not mature enough to make that decision" (regarding her preference to live with Father half of the time) is against the weight of the evidence because F.'s therapist and the court evaluator concluded that F. could be eased into the shared custody arrangement. Id.
In regard to subsection (9), Father asserts that there is no evidence to support the trial court's finding that this factor weighs in favor of Mother because "[t]here appears to be cadre of young adults at Father's house who like to party while [] Children are around." Id.
In regard to subsection (10), Father argues that the trial court's finding that Mother is more likely to "attend to the daily physical, emotional, developmental, education and special needs" of Children is against the weight of the evidence. Id. at 10. Father states that he testified during the two-day trial that he is not opposed to counseling for Children or himself. Id. at 10-11.
In regard to subsection (14), Father claims that the trial court's finding is against the weight of the evidence, as the trial court found that Father has an alcohol problem based solely on Mother's testimony. Id. at 11. Additionally, Father asserts that G. was concerned about alcohol use by someone else in Father's household, rather than by Father. Id. at 12.
In regard to subsection (16), Father contends that the trial court ignored the court evaluator's recommendations, and provided no reason for doing so on the record. Id.
In any custody case decided under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338; see also E.D. v. M.P., 33 A.3d 73, 79 (Pa. Super. 2011). 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.
23 Pa.C.S.A. § 5328; see also C.A.J., 136 A.3d at 509-10.(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.
"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. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation marks omitted).
In its Opinion, the trial court undertook an analysis of the section 5328(a) factors, and concluded that "it is in Children's best interests to live primarily with Mother." See Trial Court Opinion, 5/4/16, at 25-33. Father's arguments would require this Court to reassess and reweigh the evidence in Father's favor. However, "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." E.D., 33 A.3d at 76; see also C.A.J., 136 A.3d at 506 (stating that "[w]e defer to the trial [court] regarding credibility and the weight of the evidence."). Although Father is not satisfied with the weight that the trial court afforded to many of the statutory factors in rendering its custody decision, our review of the record reveal that the trial court's findings of fact are thoroughly 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 id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/19/2016
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