Opinion
J-A27037-15 No. 510 WDA 2015
01-07-2016
P.K. Appellee v. M.K. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered February 25, 2015
In the Court of Common Pleas of Washington County
Civil Division at No: 2014-246 BEFORE: BOWES, OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J.:
M.K. (Mother) appeals from the order entered February 25, 2015 in the Court of Common Pleas of Washington County (trial court) that awarded P.K. (Father) custody of their minor daughters, J.K. and G.K., who were born in December of 2007 and June of 2011, respectively. After careful review, we affirm.
The trial court provided the following procedural background:
[Father] and [Mother] are the parents of two minor children: [J.K.] who is seven years old, and [G.K.], who is three years old. Mother and Father were married on June 28, 2007. Prior to January 4, 2014, Mother, Father, and their two daughters resided as a family in the marital residence, located in Fredericktown, Pennsylvania. On January 4, 2014, Mother left the marital home with the children and moved to her parents' home in Indianola, Pennsylvania. Mother did not inform Father as to where she took the children. As a result of Mother's move, [J.K.] was unilaterally removed from her kindergarten class at the [Bethlehem] Center Elementary School.
Thereafter, on January 6, 2014, Mother obtained a temporary protection from abuse order, wherein Mother was temporarily granted primary physical custody of the children, and Father was temporarily granted one overnight per week with the children from Saturday at 4.00 p.m. until Sunday at 4:00 p.m. On January 23, 2014, Mother and Father agreed to continue the protection from abuse matter until September 25, 2014. On September 25, 2014, the protection from abuse matter was dismissed by agreement of the parties.
On January 10, 2014, Father filed a complaint for divorce against Mother, which contained a count for custody. On March 31, 2014, this [c]ourt appointed Child Custody Conference Officer William Speakman, ("CCCO Speakman") who conducted a custody conciliation conference with the parties and their attorneys on July 10, 2014 and September 11, 2014. On September 26, 2014, CCCO Speakman issued an Interim Order that granted Mother and Father shared legal custody of the children, and granted Father primary physical custody and Mother partial physical custody of the children for three weekends every month.
Thereafter, on September 29, 2014, Father text messaged Mother and told her that he had received the Interim Order, and that he wanted to retrieve the children. Mother responded that she had not received the Interim Order and that she would not do anything until she spoke with her attorney. Despite Mother's objection, Father contacted the Indianola Police Department and requested that they assist him in retrieving the children pursuant to the Interim Order. At approximately 8:30 p.m. that evening, at the children's bedtime, Father appeared at Mother's residence with members of the Indianola Police Department to obtain the children. Father ultimately took the two young girls back to his home in Fredericktown.
On October 2, 2014 Mother's attorney presented an emergency motion to this Court, requesting that the Interim Order be stayed based upon improper findings and remarks contained within CCCO Speakman's report, and that a custody trial de novo be scheduled. Based on the inappropriate commentary and reasoning contained in the Interim Order and report, this Court granted Mother's request, and stayed the Interim Order, as well as scheduled a pre-trial conference and custody trial de novo.
The custody trial de novo was originally scheduled for two days. However, due to the large amount of testimony and evidence, the trial continued for three more days, eventually concluding on February 11, 2015.Trial Court Opinion and Order, 2/25/15, at 1-3.
The trial court's February 25, 2015 order granted Mother primary physical custody and Father partial physical custody three weekends per month for the remainder of the 2014-15 school year. After June 5, 2015, Mother and Father were to share primary custody of the children on a week-on/week-off basis until two days before J.K.'s first day of school for the 2015-16 school year. At that time, full physical custody would be granted to Father and the children would live with him full time and attend school in the Bethlehem Center School District. If Mother remained in the Indianola area, she would enjoy partial physical custody three weekends a month and two weekday evenings a month. If she returned to the Bethlehem Center School District Area, Mother and Father would share primary custody on a week-on/week-off basis.
Mother timely filed a notice of appeal from the custody order along with a Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on appeal alleging twenty-two errors.
On appeal, Mother raises three issues for our review:
I. Did the trial court err or abuse its discretion in focusing its analysis on the facts and circumstances that existed in January of 2014 in lieu of the facts and circumstances that existed and were testified to at the time of trial in January and February of 2015, more than a year later?
II. Did the trial court err or abuse its discretion in failing to properly consider Father's consent to Mother exercising primary custody of the minor children at her residence in Indianola, PA?Appellant's Brief at 11.
III. Did the trial court err or commit an abuse of discretion in failing to examine those facts in evidence which supported Mother's claims for primary custody when analyzed through the factors enumerated in 23 Pa.C.S.A. § 5328 and ultimately in enter[ing] an order that is not in the best interest of the minor children?
The scope and standard of our review of a custody order are as follows:
In child custody matters, 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.R.L.P. v. R.F.M., 110 A.3d 201, 207-08 (Pa. Super. 2015) (quoting C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012)). "When a trial court orders a form of custody, the best interest of the child is paramount." S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (citation omitted).
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, 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.23 Pa.C.S.A. § 5328(a).
(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.
In her first issue, Mother argues that the trial court abused its discretion by focusing on the facts and circumstances that existed in January of 2014 rather than those existing at the time of trial. Mother contends the trial court placed too much emphasis on her decision to move to Indianola from Fredericktown. Mother claims the trial court disregarded the fact that G.K. and J.K. have "been living in Indianola for over [one] year and have grown accustomed to the living arrangement, caregivers, custody schedule, school, friends and activities associated therewith." Appellant's Brief at 20-21.
Mother relies on B.K.M. v. J.A.M., 50 A.3d 168 (Pa. Super. 2002) and M.E.V. v. F.P.W., 100 A.3d 670 (Pa. Super. 2014) to support her argument that the trial court improperly disregarded events that occurred from the time of her relocation to the time of trial. Mother's reliance on each case is misplaced.
In B.K.M., this Court found that the trial court's failure to consider facts arising from mother's relocation resulted in the failure to properly consider all of the factors required by 23 Pa.C.S.A. § 5328(a). In particular, we noted:
The [trial] court omitted consideration of the parental duties performed in Sweden, of any need for stability and continuity established for the Children during their time in Sweden, and of the overall best interests of the Children, inasmuch as those interests might involve maintaining the status quo established by their life in Sweden over the past two years, which for the most part occurred with Father's agreement.B.K.M., 50 A.3d at 175. Likewise, in M.E.V. we found that by relying on facts existing 17 months prior to the hearing the trial court "failed to provide the requisite contemporaneous review of the § 5328 factors." M.E.V., 100 A.3d at 682.
In the instant case, unlike in B.K.M. and M.E.V., the trial court did provide a contemporaneous review of the Section 5328 factors. Mother does not identify any Section 5328 factor not contemporaneously considered by the trial court. Contrary to Mother's unsupported assertion, the trial court fully considered the facts arising following Mother's relocation to Indianola, including her contention that the minor children had become accustomed to their new living arrangement. For example, the trial court stated:
In reaching its decision, this [c]ourt's [o]pinion seriously considered what effect, if any, the move back to Fredericktown would have on the two girls. As the [o]pinion sets forth, the two children had lived in the Fredericktown area for the majority of their lives, until [Mother] left in January of 2014. Additionally, before [Mother] left the marital home, the children had spent a large amount of time with [Father's] family, who were their neighbors. As thoroughly noted in the [o]pinion, [Mother] admitted that the children love the marital home and the Fredericktown area. [Father] also stated that their seven year
old daughter, J.K., very much enjoyed attending the Bethlehem Center Elementary School and loved her kindergarten teacher.Trial Court Rule 1925(a) Opinion, 4/21/15, at 6-7. Additionally, the trial court noted that it "was troubled that Mother would forego the preschool experience for [G.K.], where [G.K.] would be able to learn and be exposed to other children her age, and make friends, solely because Mother wants to spend time with her. Father testified that he would enroll [G.K.] in preschool." Trial Court Opinion and Order, 2/25/15, at 12.
The [c]ourt's [o]pinion addresses the connection the girls had with the Indianola area. Both girls had lived there for approximately one year at the time of the custody trial, and some of [Mother's] family members resided in the area. However, other than their maternal grandparents, the children did not spend time with [Mother's] family on a frequent basis.
In making the instant custody decision, the [c]ourt was fully aware that a move could have an impact on the two young girls. The [c]ourt purposefully crafted the custody order so that the children would not immediately move, and instead would gradually return to Fredericktown. . . . In consideration of all of the testimony and evidence that was presented in this matter, the [c]ourt determined that despite any short term effect that the move may have, it is in the best interests of the two young girls to return to Fredericktown.
As previously stated, we may reject the conclusions of the trial court only if they involve an error of law or are unreasonable in light of the certified record and, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge. Here, our review of the certified record indicates the trial court clearly considered the facts and circumstances following Mother's relocation to Indianola. Further, Mother challenges only the weight and credibility accorded the evidence. Mother does not identify any Section 5328 factor the trial court did not address. As such, under our standard of review, we defer to the trial court on this issue and find that Mother's argument has no merit.
In her second issue, Mother contends that the trial court erred or abused its discretion by failing to properly consider Father's consent to Mother's exercise of primary custody at her Indianola residence. Mother argues that the temporary PFA obtained against Father constitutes Father's consent to Mother's permanent primary physical custody of the children in Indianola. Appellant's Brief at 29-30.
Mother relies on Lee v. Carney , 645 A.2d 1363 (Pa. Super. 1994), to support her assertion that the temporary PFA Order was sufficient to permanently change the custody arrangement and constitute Father's consent. In Lee , this Court upheld a consent order that directed the victim to pay money to the perpetrator of the abuse stating, "[a]s an appellate court, we do not judge the parties' wisdom in choosing mutually agreed upon terms which they seek to incorporate into an enforceable [o]rder of court to terminate an abusive situation." Id. at 1365. Mother's reliance on Lee is misplaced.
As the trial court explained:
Initially, this court must note that the parties' agreement to extend [the] Temporary PFA was not an agreement for [Mother] to relocate. Instead, it was a temporary order that granted [Mother] interim custody of the children, among other relief.
[Mother] seemingly asserts that by entering the agreement, [Father] waived his right to ever object to [Mother's] relocation to Indianola with the children.
After the agreement was entered, the parties engaged in custody litigation, and appeared before a child custody conference officer on both July 10, 2014 and September 11, 2014. During these hearings, both parties made clear that they each desired primary physical custody of the children.
As [Father] never agreed to [Mother's] relocation, and in fact had filed for a custody complaint wherein he requested physical custody of the children and that they return to the Fredericktown area, there is simply no basis for [Mother's] argument that [Father's] agreement to a Temporary PFA constitutes any type of waiver. Moreover, [Mother] never filed a petition for relocation, and thus did not give [Father] the proper opportunity to object to the relocation as set forth in 23 Pa.C.S.A. § 5337. Section 5337 provides, in pertinent part:
(b) General rule. - No relocation shall occur unless:
(1) every individual who has custody rights to the child consents to the proposed relocation; or
(2) the court approves the proposed relocation.
Trial Court Rule 1925(a) Opinion, 4/21/15, at 5-6. We agree with the trial court's well-reasoned analysis and find that the record supports the conclusion that Father never consented to the children's relocation.
Simply put, [Mother's] argument fails because [Father] never agreed that the children could relocate from Fredericktown to Indianola. In addition, [Mother] failed to follow the relocation procedure and consequently failed to provide [Father] with the proper opportunity to object.
In her third issue, Mother asserts that the trial court erred by failing "to examine those facts in evidence which supported Mother's claims for primary custody when analyzed through the factors enumerated in 23 Pa.C.S.A. § 5328 . . . and ultimately in enter[ing] an order that is not in the best interest of the minor children." Appellant's Brief at 31. Mother claims that although the trial court addressed each custody factor, "the trial court's deductions and inferences from those findings are not reasonable." Appellant's Brief at 32.
As the trial court explained in its Rule 1925(a) Opinion, "[Mother] does not provide any basis or reasoning as to why this arrangement is against the best interests of the two young girls." Trial Court Rule 1925(a) Opinion, 4/21/14, at 8. Indeed, Mother argues only against the interpretation of the facts made by the trial court and the weight it accorded the evidence and testimony presented at trial. For example, in her brief, Mother argues that "the trial court, in support of its position, incorrectly states that Mother refuses to allow Father to FaceTime or video chat with the [c]hildren . . . . Further, the contrary, Mother testified that she allows Father to have daily phone contact with the children while in her care." Appellant's Brief at 32-33. Mother also claims:
The trial court erred in its determination that Mother produced no credible evidence of Father's abuse. The trial court erred by focusing on the fact that a Final PFA Order was not entered against Father, using this as an indication that no abuse occurred. . . . Furthermore, the court inaccurately found that Mother's testimony was not credible.Appellant's Brief at 34-35.
As stated, "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." Johns v. Cioci , 865 A.2d 931, 936 (Pa. Super. 2004). Our standard of review does not permit this Court to substitute our findings of fact for those of the trial court that are supported by the record. Moreover, "[a]ppellate 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." R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015) (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002)).
The trial court's opinion thoroughly addressed each factor in Section 5328, considering the best interest of the children at each step. Mother's third issue challenges factual findings that we find are supported by the record. As such, mindful of our standard of review and after a careful reading of the record and analysis of the applicable law, we defer to the well-reasoned conclusions of the trial court and adopt as our own the trial court's best interest analysis set forth in its April 21, 2015 Rule 1925(a) Opinion at pages 7-25.
We find that the trial court did not commit error of law or abuse its discretion in entering the instant custody order. Therefore, Mother is not entitled to relief on any of her claims. In the event of any further proceedings, the parties shall attach a copy of the trial court's Rule 1925(a) Opinion to their filings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/7/2016
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