Opinion
J-S48035-17 No. 477 MDA 2017
10-24-2017
M.K. v. R.L.K., JR. APPEAL OF: M.K.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 15, 2017 in the Court of Common Pleas of Dauphin County
Civil Division at No.: 2016-CV-3466-CU BEFORE: OTT, J., STABILE, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
M.K. (Mother) appeals the order of the Court of Common Pleas of Dauphin County (trial court) entered February 15, 2017, that granted primary physical custody of the parties' children, M.K. (born 12/09), E.K. (born 5/14), and A.K. (born 6/16) (Children), to Mother and supervised visitation to R.L.K. (Father). The order denies permission for Mother to relocate to Utah and grants permission to Father to relocate to Franklin County, Pennsylvania. The order also provides that either party may apply to modify the order after the resolution of certain criminal charges pending against Father. We affirm.
In final paragraph in the order complained of, paragraph 12, the trial court states:
12. When Father's criminal charges are resolved, either party may contact the [c]ourt to schedule a status conference.
The trial court recites the factual details of this case in its Memorandum Opinion filed February 15, 2017, and in its Opinion Pursuant to Pa.R.A.P. 1925(a) entered April 17, 2017. We relate the relevant procedural details of this case in our discussion below.
After holding hearings on September 6, 2017, January 6, 2017, and January 19, 2017, the trial court entered the order appealed from on February 15, 2017, accompanied by a memorandum in which it explained its reasoning underlying the order. Mother filed her notice of appeal and concise statement of errors complained of on appeal on March 17, 2017. See Pa.R.A.P. 1925(a)(2)(i). On April 17, 2017, in response to Mother's notice of appeal, the trial court entered an opinion pursuant to Pa.R.A.P. 1925(a). In that opinion, the trial court addresses Mother's issues raised on appeal and refers the reader to its memorandum of February 15, 2017.
Mother presents ten questions with eight sub-issues spanning two pages for us to review. ( See Mother's Brief, at 5-6). This is not the form of the statement of questions involved contemplated by Pa.R.A.P. 2116, but it is an improvement over the twelve pages, eleven issues, and ten sub-issues, in Mother's Rule 1925(b) statement. We quote the trial court, with approval, on the question of which issues are fairly incorporated in Mother's concise statement, and adopt the court's analysis of which issues should be addressed:
[Mother] filed a notice of appeal on March 17, 2017—the last possible day in which the notice could be filed and considered timely. Simultaneously, [Mother] filed a Statement of Errors Complained of on Appeal (hereinafter 'Statement') pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). However, this [c]ourt will not classify the Statement as being 'concise' as required by the rules as it consists of eleven (11) main issues, ten (10) sub-issues, and spans a total of twelve (12) pages. In addition to the overwhelming length, the Statement is riddled with opinions and characterizations by counsel that are inappropriate, irrelevant, and some completely inaccurate. As much as this [c]ourt would like to find that [Mother] has waived her issues for her failure to comply with the 'concise' requirement, it cannot in good conscience do so because once stripped of extraneous comments, opinions and extra verbiage, the issues are mostly discernable.
After removing counsel's extraneous comments, opinions, and extra verbiage, this [c]ourt has discerned the following issues that we will address:
1. The [c]ourt erred by failing to address the custody factors enumerated at 23 Pa.C.S.A. § 5328(a).
2. The [c]ourt erred in disregarding the testimony of the agreed-upon expert, Dr. Laurie Pittman.
3. The [c]ourt erred by granting Father's request for relocation without considering any of the relocation factors enumerated at 23 Pa.C.S.A. § 5337.(Trial Court Opinion, 4/17/17, at 1-2) (footnote omitted).
4. The [c]ourt erred in awarding Paternal Grandparents visitation rights.
5. The [c]ourt erred by depriving Mother of her constitutional right to travel.
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).
We have stated,
[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).
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 which 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) (citation omitted).
Additionally,
[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. 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.S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted).
We will affirm the trial court largely on the strength of its Memorandum and Pa.R.A.P. 1925(a) Opinion entered on February 17, 2017, and April 18, 2017, respectively. We will, however rely on our own analysis of the question of whether the trial court was required, in these particulars circumstances, to address each of the sixteen custody factors delineated in 23 Pa.C.S. § 5328(a). We find that it was not.
Mother and Father were married in Utah. They were living in Halifax, Dauphin County, Pennsylvania, when Mother initiated this case by filing a complaint for custody on May 5, 2016. Mother also filed a notice of relocation to Utah to which Father filed a counter-affidavit and his own notice of relocation to Franklin County, Pennsylvania, to which Mother filed a counter-affidavit. The trial court entered an agreed custody order in this matter on June 13, 2016, following a pre-trial conference. That order awarded Mother primary physical custody and awarded Father supervised visitation. The parties shared legal custody. No one made an objection to this order and no one appealed from it. Mother filed a request for a full hearing on relocation on July 12, 2016, that the trial court scheduled for September 6, 2016.
Mother filed an emergency petition for special relief on August 2, 2016, in which she asked the trial court to, "enter an Order suspending Father's rights to supervised visitation until resolution of the pending criminal matter." (Mother's Petition for Special Relief, at 4 (unpaginated)). Mother sought to suspend Father's supervised visitation while the police investigated Mother's allegations that Father had acted inappropriately around the Children, allegations that had been investigated and deemed unfounded by Dauphin County Children and Youth Services. Mother filed a petition for protection from abuse (PFA) on August 4, 2016, that she based on the allegations in her petition for special relief. The trial court denied Mother's petition for special relief on August 5, 2106. The trial court held hearings on Mother's PFA petition and the two relocation requests on September 6, 2016, January 6, 2017, and January 19, 2017. On February 17, 2017, the trial court entered the order complained of in which it denied Mother's request for relocation, approved Father's request, and resolved Mother's PFA by defining Father's supervised visitation.
The order of February 17, 2017 provides that the parties shall share legal custody, Mother shall have primary physical custody and that Father shall have supervised visitation two days per week at a specified location. According to the trial court, "The February 15, 2017 Order did not alter the custody that had been previously entered aside from the location of the supervised visitation - Mother was provided primary custody, and Father supervised visitation at ABC House at least once per week - pending resolution of the criminal charges." (Trial Court Pa.R.A.P. 1925(a) Opinion, 4/18/17, at 4). Thus, in addressing the question of custody, the order denies Mother's PFA and preserves the status quo ante established when the trial court entered the original custody order on June 13, 2016, with the exception of the subsidiary issue of how Father is to exercise supervised visitation. The trial court did not make any award of custody that did not already exist. In its Memorandum in support of its order entered February 17, 2017, the trial court addresses the relocation factors in section 23 Pa.C.S.A. §5337(h), but did not discuss the sixteen custody factors listed in 23 Pa.C.S.A. §5328(a). Mother claims that this was error. We disagree.
This Court has said "[A] trial court must apply the § 5328(a) factors and issue a written explanation of its decision when it orders any of the seven forms of custody provided for by the [Child Custody] Act." S.W.D. v. S.A.R., 96 A.3d 396, 402 (Pa. Super. 2014). The seven forms of custody provided for by the Act are:
(a) Types of award.--After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the court may award any of the following types of custody if it is in the best interest of the child:
(b)
23 Pa.C.S.A. § 5328(b).(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
In her brief, Mother claims, "The law clearly requires the [trial] court to consider all Custody Factors when ordering any form of custody; no change is required to trigger the court's obligation to place it's reasoning on the record." (Mother's Brief, at 12-13). Mother clearly misreads our law, which requires a trial court to consider the custody factors only when awarding any of the seven forms of custody listed above. In this case, the trial court addressed only the subsidiary issue of Father's supervised visitation.
This Court addressed a similar set of facts in M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014). In M.O., the father filed a petition for modification. At a pre-trial conference, the parties resolved all the issues except a question relating to the father's summer visitation. The trial court held a hearing in which the parties addressed that one subsidiary issue, after which the trial court issued an order of custody without discussing the sixteen custody factors. Mother appealed, claiming that it was error not to address those issues. This Court disagreed, stating:
Following the hearing in this case, the trial court made no award of custody. The court was not deciding physical or legal custody, nor even changing the amount of custodial time that either party had with the Children. Rather, the trial court addressed a subsidiary issue: whether Father was required to be off from work while the Children stayed with him for a portion of the summer. After hearing the evidence that the parties presented limited to that sole issue, the trial court decided that Father could work during the three weeks in question. While the court's ruling modified its prior order, it did not change the underlying award of custody. Therefore, under the facts of this case, Section 5328(a) was not implicated directly.Id. at 1062-63.
The case before us is similar to M.O. Here, the parties agreed to an order of custody at a pre-trial conference and the trial court entered an order based on that agreement. By filing her PFA, Mother sought to modify the order by restricting Father's visitation. When it entered the order complained of, the trial court did not change the underlying award of custody, and did not award any form of custody that either party did not enjoy prior to the relocation/PFA hearing; it simply resolved the subsidiary issue of Father's supervised visitation and thus section 5328(a) was not implicated directly. M.O., supra.
We are aware of this Court's opinion in A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014). However, A.V. involved a direct modification of the "type" of custody (from shared physical to partial physical custody) and substantially reduced Father's time with the children, and thus we find it distinguishable. --------
As to the remaining issues, we have carefully reviewed the trial court's Memorandum Opinion filed February 15, 2017, and in its Opinion Pursuant to Pa.R.A.P. 1925(a) entered April 17, 2017, and we find them, taken together, to be a correct and complete analysis of the remaining issues Mother raises on appeal. Accordingly, we affirm the order of the trial court entered February 15, 2017, on the basis of those opinions.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/24/2017
Image materials not available for display.
(Trial Court Order, 2/15/17, at ¶ 12).
This sentence indicates that the trial court anticipates the possibility of further proceedings, raising the question of whether the order is final and appealable. We find that it is.
This Court addressed the question of the finality of an order where the trial court enters an order of custody and anticipates a review of its order only upon the application of one of the parties in Parker v. MacDonald , 496 A.2d 1244 (Pa. Super. 1985). In Parker , we explained:
We agree with appellee that the current posture of this case would prevent us from entertaining this appeal if it were an interlocutory order. However, we are unable to conclude that the Order of November 14, 1985, lacks finality. Concededly, the lower court by its own terms provided for review of its order in July, 1985, but only upon application for such review by either party. This case was not scheduled for subsequent review by the lower court. Rather, the court below encouraged the amicable resolution of the custody of their son by the parties themselves. If the parties reached an agreement, it is possible that further court intervention would not be required. Thus, the Order of November 14, 1984, effectively ended the litigation, and constituted a final order appropriate for review.496 A.2d, at 1247 (emphasis in original).
Moreover, the challenged Order disposed of the parties' rights to custody during the period between November, 1984, and July, 1985, and thereafter unless and until a petition for re-examination of custody is filed by one of the parties. We conclude that the Order has sufficient aspects of finality to be appealable. The motion to quash is therefore denied.
This Court affirmed Parker in G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996), where, referring to Parker , we stated:
We concluded that the language of the trial court's order merely made explicit what is always implicit in a custody order-the availability of modification upon a proper showing by the parties-and hence that the finality of the order, which otherwise constituted a complete resolution of the parties' dispute, was not vitiated.670 A.2d at 718 (citation omitted).
The facts in the case before us are similar to Parker and G.B. in that the order will stand as written unless one of the parties applies to the trial court for a modification; as such, it is final and appealable.