Opinion
J-A31023-15 No. 273 MDA 2015
12-11-2015
S.W. Appellee v. S.I., N/K/A S.F. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 15, 2015
In the Court of Common Pleas of York County
Civil Division at No(s): 2009 FC 001342-03 BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
S.I., N/K/A S.F. ("Mother") appeals from the January 15, 2015 order, entered in the Court of Common Pleas of York County, awarding S.W. ("Father") primary physical custody of the parties' daughter, S.W., subject to Mother's partial custody rights, and awarding the parties shared legal custody. After our review, we affirm.
Pursuant to the trial court's order of August 26, 2013, Mother relocated with S.W. to Oklahoma. Thereafter, Father learned that Mother was no longer residing with her husband in Oklahoma and had moved with S.W. to Texas, without Father's knowledge or consent. On July 28, 2014, Father filed a motion for modification of custody. Father alleged Mother's home life had become unstable, that he could provide more stability and continuity in S.W.'s daily life and education, and that he was better able to promote the relationship between S.W. and Mother, as well as between S.W. and Mother's family, all of whom reside in Pennsylvania.
Following a conciliation conference and trial, the Honorable Joseph C. Adams determined that it was in S.W.'s best interests to award primary custody to Father. Mother appealed. She raises the following issues for our review:
1. Whether the trial court abused its discretion in granting Father primary custody of the parties' minor child and relocating the child from Oklahoma to Pennsylvania, which decision was against the weight of the evidence presented at trial, is contrary to the best interests of the child, and a misapplication of the law?
a) Whether the trial court abused its discretion and erred in determining that Father was more likely than Mother to encourage and permit the child to have frequent and continuing contact with the other party pursuant to 23 Pa.C.S. § 5328(a)(1)?
b) Whether the trial court abused its discretion and erred in determining that both parties performed parental duties and assisted with homework, finding that 23 Pa.C.S. § 5328(a)(3) is neutral?
c) Whether the trial court abused its discretion and erred in determining that Father can provide more stability and continuity for the child simply because he has lived in his same residence for eight years pursuant to 23 Pa.C.S. § 5328(a)(4)?
d) Whether the trial court abused its discretion and erred in determining the availability of extended family and Father's close proximity to Mother's
extended family heavily favors Father in light of Mother's many travels to the area to visit her family, pursuant to 23 Pa.C.S. § 5328(a)(5)?
e) Whether the trial court committed error in determining the child's sibling relationships pursuant to 23 Pa.C.S. § 5328(a)(6) favored Father?
f) Whether the trial court abused its discretion and erred in determining that Father is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs due to him residing in his home for eight (8) years pursuant to 23 Pa.C.S. § 5328(a)(9)?
g) Whether the trial court abused its discretion and erred in determining that the parties were equally likely to attend to the daily physical, emotional, developmental, educational and special needs of the child pursuant to 23 Pa.C.S. § 5328(a)(10)?
h) Whether the trial court abused its discretion and erred in determining this factor favored Father because Father's child care arrangement "support system is more sufficient" even though Mother is a stay at home mom and needs no "support system," pursuant to 23 Pa.C.S. § 5328(a)(12)?
i) Whether the trial court abused its discretion and committed error in finding that the level of conflict between the parties and willingness and ability of the parties to cooperate with one another favored Father because Mother demonstrated more hostility in text messages and Father testified that information was not shared in a timely manner pursuant to 23 Pa.C.S. § 5328(a)(13)?
j) Whether the trial court abused its discretion and erred in its consideration of thirteen (13) days of missed school, voicemails left by Mother's significant other on Father's cell phone, pursuant to 23 Pa.C.S. § 5328(a)(16), and failed to indicate how these issues affected the court's decision?
k) Whether the trial court erred in its application of 23 Pa.C.S. §§ 5337(h)(2), (3) and (7), and its
determination that the child's relocation will enhance the child's general quality of life, pursuant to 23 Pa.C.S. § 5328 (a)(16)?
Initially, we note our scope and standard of review:
[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court 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, this Court must defer to the trial judge who presided over the proceedings and thus viewed 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.Johns v. Cioci , 865 A.2d 931, 936 (Pa. Super. 2004) (citations and quotation omitted). Further, this Court has 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).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated the following regarding the abuse of discretion standard:
Although we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating the court's order. An abuse of discretion is not merely an error of judgment, but if the court's judgment is manifestly unreasonable as shown by the evidence of record, discretion is abused. An abuse of discretion is also
made out where it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence.Id. at 18-19 (quotation and citations omitted). Finally, this Court must accept the trial court's findings that are supported by competent evidence of record, "as our role does not include making independent factual determinations." C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). Moreover, "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." Id.
In reaching its determination, the court analyzed the factors set forth at 23 Pa.C.S.A. § 5328(a) of the Child Custody Act ("the Act"). C.R.F., supra. Judge Adams set forth each of the sixteen factors and provided an analysis relevant to that factor based on the facts and evidence specific to this case. See Trial Court Opinion, 1/15/15, at 2-9. Although the court found the majority of the custody factors were neutral, it concluded that several favored Father. In particular, the court found that the need for stability and continuity in S.W.'s education, family life and community life favored Father. See 23 Pa.C.S.A. § 5328(a)(1)(4). Due to the nature of Mother's husband's employment as a project manager for an oil pipeline construction company, Mother and her husband frequently relocate for temporary periods. Father, on the other hand, has resided with his wife, daughter and stepdaughter in the same location for eight years. The court placed considerable weight on this factor, and emphasized that S.W. was starting primary school, a time when children begin to form long-term relationships. In addition, Father, his extended family, and Mother's parents and her extended family all reside in Pennsylvania. For this reason, the court found the availability of extended family favored Father. See 23 Pa.C.S.A. § 5328(a)(5). The court also found that due to Father's difficulty in contacting S.W. during Mother's custodial periods, Father would be more likely to encourage and permit continuing and frequent contact with Mother. The court, therefore, weighed this factor in Father's favor. See 23 Pa.C.S.A. § 5328(a)(1). The child's sibling relationships also favored Father, as S.W.'s stepsister, age 5, and half-sibling, age 2, are close to her age and she spends time with both of them when in Father's custody. See 23 Pa.C.S.A. § 5328(a)(6).
The court emphasized that both Mother and Father clearly love and want what is best for S.W., however, the level of hostility between them is palpable.
We find no abuse of discretion. Johns , supra. The trial court did precisely what was required of it; it weighed the section 5328(a) factors in making the custody determination and explained its considerations "in a manner that informed the parties of the reasons for the custody award." See M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013). The court's review of the custody factors, and its related conclusions, support its decision that primary physical custody with Father was in S.W.'s best interest. Mother is asking us to reject the trial court's findings and credibility determinations in favor of the factual findings and credibility determinations she proposes. This we cannot do. Ketterer , supra.
We affirm the custody order based on Judge Adams' opinion and we direct the parties to attach a copy of the trial court's opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/11/2015
Image materials not available for display.