Opinion
J-S11045-16 No. 1937 EDA 2015
09-07-2016
S.M.E., Appellant v. R.J.E.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered June 2, 2015 in the Court of Common Pleas of Philadelphia County, Family Court Division, at No(s): OC 1002022 BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
S.M.E. ("Mother") appeals from the Order denying Mother's Petition for Modification of the Custody Order entered on August 25, 2014. We affirm.
The Custody Order pertains to the three minor children of Mother and R.J.E. ("Father") (hereinafter "Children").
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for purposes of this appeal. See Trial Court Opinion, 5/25/16, at 1-2.
On June 2, 2015, following a hearing, the trial court entered an Order which amended the August 25, 2014 Custody Order and essentially denied Mother's Petition for Modification. Mother filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
Thereafter, the trial court issued its Opinion, pursuant to Pa.R.A.P. 1925(a). However, the trial court failed to address the sixteen factors that the trial court must consider when making a "best interests of the child" analysis for a custody determination under the Child Custody Act ("the Act"). See 23 Pa.C.S.A. § 5328(a). Accordingly, this Court vacated the trial court's June 2, 2015 Order, and remanded this matter for the preparation of a new order and opinion compliant with section 5323(d) of the Act. See S.M.E. v. R.J.E., 1937 EDA 2015 (Pa. Super. filed April 29, 2016). The trial court complied, and entered an Opinion and Order on May 25, 2016. Accordingly, this matter is now ready for our review.
See 23 Pa.C.S.A. §§ 5321 et seq. Because the custody trial was held in June 2015, the Act applies to this case. See C.R.F. v. S.E.F., 45 A.3d at 445 (holding that, if the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply).
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) (emphasis supplied). Our review of the hearing transcript disclosed that, while the trial court had addressed some of the section 5328(a) factors at the hearing, it did not address all of them. See 23 Pa.C.S.A. § 5323(d). Further, our review of the record disclosed that the trial court had not addressed all of the section 5328(a) factors in a written opinion or order. See id.
On appeal, Mother raises the following issues for our review:
1. Whether the trial court erred in refusing to modify the Custody Order to allow Mother to care for her [C]hildren during fifty-two (52) overnights per year when Mother is available and Father leaves [C]hildren with a baby-sitter due to his work schedule[?]
2. Whether the trial court violated Mother's fundamental constitutional parenting rights by depriving her of [C]hildren during fifty-two (52) overnights per year and
entrusting [C]hildren to a third party who was not a party to the custody litigation[?]Mother's Brief at 3.
In her brief, Mother attempts to raise several issues that were not raised in her Concise Statement, and are not listed in her Statement of the Questions Involved. Accordingly, we decline to address them. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that, if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived); see also Pa.R.A.P 2116(a) (providing that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.").
When reviewing a custody award,
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. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (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).
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. 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), which sets forth a list of sixteen factors that the trial court must consider when making a "best interests of the child" analysis for a custody determination, 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.
(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.23 Pa.C.S.A. § 5328(a).
(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.
In her first issue, Mother contends that the trial court erred by denying her Petition to modify the custody Order to permit her to have custody of Children on the fifty-two evenings and overnights per year during which Father works. Mother's Brief at 14. Mother asserts that the trial court failed to "take Father's absences into serious consideration" and "did not engage in any analysis as to how Father's absences affect[] [C]hildren." Id. Mother claims that the trial court "summarily disposed of the undisputed allegations of [C]hildren's academic decline and missed projects" since their paternal aunt replaced Mother on Mondays and Tuesdays. Id. at 13, 14-15. Mother argues that the custody "Order serves no legitimate purpose other than to alienate [C]hildren from Mother." Id. at 16. Mother contends that "the trial court failed to explain how entrusting [C]hildren to a non-parent, on a regular and frequent basis, serves the best interest of [C]hildren." Id. at 17. Mother asserts that the "trial court fails to understand how [C]hildren benefit from being in the care of [M]other." Id. at 18.
The trial court addressed Mother's first issue, discussed each of the section 5328(a) factors, and concluded that her first issue lacks merit. See Trial Court Opinion, 5/25/16, at 2-9. We discern no abuse of discretion or error of law by the trial court; nor do we conclude that the June 2, 2015 Order is unreasonable in light of the sustainable findings of the trial court. See id. Accordingly, we cannot grant Mother relief on her first issue.
Mother's second issue was not raised in her Concise Statement. Accordingly, she failed to preserve it for our review. See Lord , 719 A.2d at 309 (Pa. 1998).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/7/2016
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