Opinion
J-A26016-17 No. 813 MDA 2017
01-11-2018
T.C.S. v. B.L.S. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated April 17, 2017
In the Court of Common Pleas of Adams County Civil Division at No(s): 2008-S-1412 BEFORE: BOWES, J., OLSON, J., and RANSOM, J. MEMORANDUM BY OLSON, J.:
B.L.S. ("Father") appeals from the order dated and entered on April 17, 2017, granting the petition for modification of custody filed by T.C.S., ("Mother") awarding the parties shared legal custody, and Mother primary physical custody, of the parties' two male children, B.S.S., born in January of 2004, and C.M.S., born in October of 2007 (collectively, the "Children"). The order further awarded Father partial physical custody in accordance with a schedule. After careful review, we affirm.
The factual background and procedural history of this appeal are as follows. On September 26, 2008, Mother filed a complaint in divorce against Father. On October 22, 2008, Mother filed an amended complaint in divorce, which included a count for shared legal custody and primary physical custody of the Children. On November 5, 2008, Father filed a counterclaim to Mother's amended complaint.
On December 9, 2008, Mother filed a petition for special relief against Father, seeking exclusive possession of the marital residence and alleging that she feared Father. On December 18, 2008, Father filed an answer to petition for special relief and a counter-petition, seeking exclusive possession of the marital residence.
On April 1, 2009, the trial court entered a stipulated order for custody, setting forth that the parties would share legal and physical custody of the Children. Under the stipulated order for custody, Father would have physical custody of the Children on Mondays from 7:30 a.m. to Wednesdays at 7:30 a.m. Mother would have physical custody of the Children from Wednesdays from 7:30 a.m. to Fridays at 4:30 p.m. The parties would alternate the weekends of physical custody from Fridays at 4:30 p.m. to Mondays at 7:30 a.m. Either party could request additional time with the Children on the days they would not normally exercise physical custody. The other parent was not to unreasonably deny the parent's request for additional time with the Children.
Thereafter, on May 29, 2013, the parties entered into a custody stipulation that provided them with equally shared physical custody of the Children whereby Mother would have physical custody of the Children from Wednesdays from 8:00 a.m. to Friday at 4:30 p.m. and Father would have physical custody every Monday at 8:00 a.m. until Wednesday at 8:00 a.m. The parties would alternate physical custody on weekends from Friday at 4:30 p.m. until Monday at 8:00 a.m. The trial court entered the divorce decree on October 15, 2013.
On June 27, 2016, Mother filed a petition for contempt and petition to modify custody. On July 28, 2016, Father filed an answer to Mother's petition for contempt and modification that he had no objection to continuing to share legal custody but strongly believed that he should have majority physical custody of the Children. The trial court deemed his objection a cross-petition for modification. See N.T., 12/13/16, at 4-5.
On September 15, 2016, the trial court conducted in camera interviews with the Children. Subsequently, the trial court held a custody hearing on December 13, 2016 and April 10, 2017. At the hearing, the trial court considered both parents' requests, and heard testimony from the parents, Mother's fiancé, the Children's maternal grandfather, and Mother's former boyfriend.
On April 10, 2017, the trial court entered the order granting Mother primary physical custody of the Children, and Father partial physical custody. The order further granted Mother's petition for modification of physical custody, giving Mother periods of partial physical custody every Tuesday from 8:00 a.m. until Wednesday at 8:00 a.m., and alternating weekends from Friday at the conclusion of the Children's school day (or 4:30 p.m. on non- school days) until Sunday at 7:00 p.m. Finally, the order stated that all other aspects of the custody stipulation dated May 29, 2013 were adopted as an order of court, and were to remain in full force and effect. The trial court addressed the best interest factors set forth at 23 Pa.C.S.A. § 5328(a) in a separate written memorandum filed contemporaneously with the order.
In addition, the trial court denied Mother's petition for contempt, with prejudice, as there was an existing stipulated custody agreement that was never adopted as a custody order of court. Trial Court Opinion, 4/17/17, at 2. Although the trial court referenced cross-petitions for contempt, it corrected this reference in its May 31, 2017 opinion, stating that only Mother filed a petition for contempt. See Trial Court Opinion, 5/31/17, at 1, n1.
On May 16, 2017, Father filed a notice of appeal, along with a concise statement of errors complained of on appeal. In his brief on appeal, Father raises the following issues:
1. Whether the trial court committed an abuse of discretion or error of law in modifying a shared 50/50 physical custody arrangement in effect for 8 years by failing to objectively analyze and properly weigh the sixteen factors listed in 23 Pa.C.S.A. § 5328(a) and concluding that Father is teaching the [C]hildren how to hate when there was no evidence presented at trial that Father communicated to the [C]hildren or included the [C]hildren in any communications with Mother that would be construed as "hateful."Father's Brief, at 3-4.
2. Whether the trial court abused its discretion and committed an error of law in concluding that the level of conflict between the parties does not favor a shared arrangement when for the last 8 years the parties shared custody of the [C]hildren and credible evidence was presented that [the C]hildren are happy, healthy, doing extremely well in school, are liked by their peers, excel in sports and share a strong bond with Father?
In argument section of his brief, Father challenges the trial court's decision to modify the custody agreement as an improper sanction for his contempt of the alleged existing custody "order," citing Langendorfer v. Spearman , 797 A.2d 303, 308 (Pa. Super. 2002); G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super 2013). Father's Brief, at 19-20. Father waived this argument by failing to raise the issue in his concise statement and statement of questions involved in his brief. See Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his concise statement of errors complained of on appeal and the statement of questions involved in his brief on appeal). --------
First, Father argues that the trial court committed an abuse of discretion or error of law in modifying an eight-year shared 50/50 physical custody arrangement entered by stipulated order on April 1, 2009. More specifically, Father argues that the trial court failed to objectively analyze and properly weigh the sixteen factors pertaining to custody set forth at 23 Pa.C.S.A. § 5328(a). Father complains that the trial court erroneously concluded that he is teaching the Children how to hate, when there was no evidence presented at trial that Father communicated to the Children, or included the Children in any communications with Mother, that would be construed as "hateful." Id. at 3-4, 14.
Second, Father contends that the trial court abused its discretion and committed an error of law in concluding that the level of conflict between the parties does not favor a shared arrangement. Father asserts that, for the past eight years, the parties shared custody of the Children, and that there was credible evidence that the Children are happy, healthy, doing extremely well in school, are liked by their peers, excel in sports, and share a strong bond with Father. Id. at 3-4, 21.
Citing Wiseman v. Wall , 718 A.2d 844 (Pa. Super. 1998), Father asserts that the trial court committed an error of law and/or abused its discretion when it determined that a partial custody arrangement was in the best interest of the Children. Id. at 21, 25. Father requests this Court to reverse the trial court's decision and remand with instructions to enter a custody award granting Father and Mother shared legal custody and 50/50 shared physical custody of the Children. Id.
In custody cases under the Child Custody Act, ("the Act"), 23 Pa.C.S.A. § 5321-5340, our 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. 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) (quoting Jackson v . Beck , 858 A.2d 1250, 1254 (Pa. Super. 2004)).
Regarding an 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.M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (quotation and citations omitted); see also Bulgarelli v. Bulgarelli , 934 A.2d 107, 111 (Pa. Super. 2007) ("An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.").
With 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 5323 of the Act provides for the following types of awards:
(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 in the best interest of the child:
23 Pa.C.S.A. § 5323.(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.
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. Section 5328(a) sets forth the best interest factors that the trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). Trial courts are required to consider "[a]ll of the factors listed in section 5328(a) . . . when entering a custody order." J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).
Section 5328(a) of the Act 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.
(2.1) The information set forth in section 5329.1(a)(1) and (2) (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.
(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.
Further, we have explained:
Section 5323(d) provides that a trial court "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). Additionally, "Section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328(a) custody] factors prior to the deadline by which a litigant must file a notice of appeal." C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013). . . .A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
In expressing the reasons for its decision, "there is no required amount of detail for the trial court's explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations." M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68 A.3d 909 (2013). A court's explanation of reasons for its decision, which adequately addresses the relevant factors, complies with Section 5323(d). Id.
In Wiseman , this Court held that trial courts must analyze the following four factors when considering a shared custody award: (1) both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; (2) both parents must evidence a continuing desire for active involvement in the child's life; (3) both parents must be recognized by the child as a source of security and love; (4) a minimal degree of cooperation between the parents must be possible. Wiseman , 718 A.2d at 848 (citations omitted).
This Court decided Wiseman prior to the Act, which became effective on January 24, 2011. See 23 Pa.C.S.A. § 5321-5340. Section 5328(a) encompasses the Wiseman shared custody factors. For example, Wiseman factor requiring parents to have a minimal degree of cooperation is encompassed in Section 5328(a)(13), which requires trial courts to consider, inter alia, "[t]he level of conflict between the parties and the willingness and ability of the parties to cooperate with one another." Accordingly, as the Act requires the trial court to consider each of the factors set forth in Section 5328(a), the trial court need not separately consider the Wiseman factors.
Moreover, the Act requires that the trial court consider each of the Section 5328(a) custody factors when making any award of custody, i.e., primary, partial, or shared physical custody. The Act does not provide that any one factor must control the court's decision, but courts should give weighted consideration to those factors affecting the safety of the child. See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013).
Here, it is clear the trial court considered Section 5328(a) by taking into account the various factors, including the level of conflict between Mother and Father and their difficulty in cooperating, especially in view of Father's reaction to Mother's new fiancé. After our careful review of the record, we find competent evidence to support the trial court's factual findings with regard to the Section 5328(a) best interest factors. We find that the trial court did not make an error of law, and its conclusions are not unreasonable in light of the sustainable findings of the trial court regarding the Children's best interests. C.R.F., 45 A.3d at 443. Thus, we find that Father's issues lack merit, and we will not disturb the trial court's credibility and weight determinations. Accordingly, we affirm the order of the trial court on the basis of the trial court opinions filed on April 17, 2017 and May 31, 2017. Because we have adopted the trial court's opinions as our own, we direct the parties to include the opinions in all future filings relating to our examination of the merits of this appeal, as expressed herein.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/11/2018
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