Opinion
J-S11045-16 No. 1937 EDA 2015
04-29-2016
S.M.E. 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. OC1002022 BEFORE: FORD ELLIOTT, P.J.E, OTT and MUSMANNO, JJ. JUDGMENT ORDER BY MUSMANNO, J.:
S.M.E. ("Mother") appeals from the Order entered on June 2, 2015, which amended the Custody Order entered on August 25, 2014. We vacate and remand for the preparation of a new order and opinion.
The Custody Order pertains to the three minor children of Mother and R.J.E. ("Father"): R.E., III (born 11/9/00); J.E. (born 4/15/04); and R.E. (born 4/11/11) (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, 7/30/15, at 1-3. On June 2, 2015, following a hearing, the trial court entered an Order amending the August 25, 2014 Custody Order. The June 2, 2015 Order essentially denied Mother's Petition for Modification, as the Order did not include the custodial changes requested by Mother in her Petition. 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).
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[?]Mother's Brief at 3.
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[?]
In any custody case decided under the Child Custody Act ("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) 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. See 23 Pa.C.S.A. § 5328(a).
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). Mere recitation of the statute and consideration of the section 5328(a) factors en masse is insufficient. See S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). A trial court's failure to place its reasoning regarding the section 5328(a) factors on the record or in a written opinion is an error of law. See id.
In its Opinion, the trial court states that it discussed the section 5328(a) factors at the hearing. See Trial Court Opinion, 7/30/15, at 3 (referencing N.T., 6/2/15, at 52-56). Our review of the hearing transcript discloses that, while the trial court did address 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 discloses that the trial court did not address all of the section 5328(a) factors in a written opinion or order. See id.
Accordingly, we must vacate the trial court's June 2, 2015 Order and remand this matter for the preparation of a new order and opinion compliant with section 5323(d). Upon remand, the trial court is directed to issue a new order and opinion within thirty days of the date of this Order.
Order vacated. Case remanded for further proceedings consistent with this Order. Jurisdiction retained. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/29/2016
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