Opinion
J-S47016-16 No. 2267 MDA 2015
09-27-2016
A.S.W. Appellant v. H.M.W.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered November 25, 2015 in the Court of Common Pleas of Lancaster County Civil Division at No(s): CI-15-05403 BEFORE: SHOGAN, LAZARUS, JENKINS, JJ. MEMORANDUM BY JENKINS, J.:
A.S.W. ("Father") appeals from the order entered on November 23, 2015, in the Court of Common Pleas of Lancaster County, awarding H.M.W. ("Mother") primary physical custody of E.M.W. ("Child") (born in March of 2012), awarding Father partial physical custody, and awarding Mother and Father shared legal custody of Child pursuant to 23 Pa.C.S. § 5328(a). We affirm.
The trial court set forth the extensive factual history of this case in its opinion accompanying the subject order, and the trial court's recitation is supported by the testimonial and documentary evidence. As such, we adopt it herein. See Trial Court Opinion, 1/22/16, at 2-9. Mother and Father are husband and wife, but they have been separated since June of 2015. Both are high school teachers at different high schools. Mother teaches health and physical education. Father teaches career education, driver's education, health, and physical education. Father is also the varsity soccer coach. In addition to coaching at the high school during the high school season, Father is involved in off-season and summer season soccer coaching.
On May 28, 2015, Father filed a complaint for primary physical custody and shared legal custody of Child. Thereafter, Father changed his request from primary physical custody to shared physical custody. On August 20, 2015, a custody conciliation conference was held, but no agreement was reached. On September 15, 2015, the trial court adopted the conciliation officer's recommendation and entered a temporary order awarding shared legal custody of Child to Mother and Father. Mother was awarded primary physical custody, and Father was awarded partial physical custody of Child on alternating weekends. The trial court order also directed a further custody hearing to be held on October 30, 2015. The custody hearing was continued to November 12, 2015 to obtain the testimony of Child's therapist to determine the best interest of Child.
The trial court held a custody hearing on November 12, 2015 and November 19, 2015. At the hearing the trial court heard the testimony of Mother; Father; J.A., a parent whose child plays on Father's soccer team; J.S., Child's therapist; B.L., an aquatic instructor; S.W., Child's paternal grandmother; and M.A.C., Child's maternal grandmother. On November 23, 2015, the trial court again awarded Mother primary physical custody, Father partial physical custody on alternating weekends, and shared legal custody of Child to both Mother and Father.
On December 23, 2015, Father filed a notice of appeal and a concise statement of errors complained on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following question for our review:
1. Whether the lower court erred in its application of the factors under 23 Pa.C.S.[] § 5328(a) in determining the best interest of the child?Father's Brief at 7.
In custody cases, 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., III v. S.E.F., 45 A.3d 441, 443 (Pa.Super.2012) (citation omitted).
With any custody case under the Child Custody Act, 23 Pa.C.S. §§ 5321-5340, the paramount concern is the best interests of the child. In applying the Custody Act, a trial court must determine a child's best interests through consideration of the following sixteen factors:
§ 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) (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.
23 Pa.C.S. § 5328.(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.
Father argues that the trial court misapplied the factors for determining the best interest of Child pursuant to section 5328(a). Father's Brief at 11. Specifically, Father contends that the trial court "erred in finding that Mother is more likely to encourage and permit frequent and continuing contact between Father and Child." Id. at 13. Additionally, Father argues that the trial court erred in finding that "Father's employment as varsity boys' soccer coach prevents him from having sufficient [] time with [C]hild." Id. at 17.
While not specified in his brief, Father appears to challenge section 5328(a)(3), the parental duties performed by each party on behalf of the child.
With regard to section 5328(a)(1), which party is more likely to encourage and permit frequent and continuing contact between the child and another party, the trial court found:
Mother is more likely to encourage and permit frequent and continuing contact between Father and [C]hild, than is Father. Despite a right of first refusal agreement between the parties, on a number of occasions Father called his mother to care for [Child] when he had a conflict, rather than Mother. This breach of commitment made by him is a serious sign to the [trial] court that he does not appropriately value either his word or Mother's relationship with [Child]. He has refused to permit [Child] to go on a vacation with Mother and her family despite a history of such events in the family. Mother has honored the agreement.Trial Court Opinion, 1/22/16, at 11.
With regard to section 5328(a)(3), the trial court stated:
While both parties perform parental duties, Mother has performed and continues to perform the majority of the parental duties for [C]hild. She has consistently had more available time in her schedule to spend with [C]hild and to attend to [C]hild's needs. She can get [C]hild to day care at a later and more reasonable hour for [C]hild in the morning, and pick her up earlier in the afternoon, providing more parent time. Prior to the separation, Mother was for all intents and purposes, the parent who transported [C]hild to and from daycare. She was the major nurturing parent while the family was intact, and has continued that situation into separation. All of the testimony presented indicate[s] that Father is so involved in soccer that he is simply not available at significant time for [C]hild because he
must attend various games, practices, training, and other sport-related activities.Id. at 11-12.
Moreover, the trial court stated it had "some problems with Father's credibility." Id. at 16. The trial court stated that, "Father blamed Mother for some of his problems" and "raised negative issues about the relationship between Mother and [Child]." The trial court found that Father's "hostility colors those perceptions and makes it difficult to know the degree of their accuracy." Id. The trial court further found that Father "inaccurately minimized the problems posed by his schedule and that much of his testimony was confusingly difficult if not contradictory because of a variety of inconsistencies contained therein." Id. Consequently, the trial court found that "an examination of the listed aspects of [C]hild's life and her relationship with her parents indicated that Mother as the primary custodial parent would better serve [C]hild's best interest." Id. Father's issue on appeal seeks review of the trial court's findings of fact and credibility determinations. Our standard of review, however, does not permit this Court to re-find facts, re-weigh the evidence, or to impeach the credibility determinations of the trial court. We may only reject the trial court's conclusions if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. See C.R.F., III , 45 A.3d at 443. Furthermore, the trial court analyzed each factor regarding custody and found that, as stated above, the factors weighed in Mother's favor. See Trial Court Opinion, 1/22/16, at 11-16. We find no abuse of discretion.
For the foregoing reasons, we affirm the order of the trial court awarding primary physical custody to Mother, partial physical custody to Father, and shared legal custody to both Mother and Father.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/27/2016
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