J.S. v. J.D.

J-A23044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.S., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.D., :
:
Appellee : No. 435 WDA 2014

Appeal from the Order entered on February 18, 2014
in the Court of Common Pleas of Lawrence County,
Civil Division, No. 10677 of 2013

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 26, 2014

appeals from the Order (hereinafter

My.D. (d.o.b. 10/22/09) and Ma.D. (d.o.b. 10/2/10) (collectively referred to

physical custody to Father; and (3) partial physical custody to Mother. We

affirm.

The trial court set forth the relevant facts and procedural history

underlying this appeal in its Opinion, which we incorporate herein by

reference. See Trial Court Opinion, 4/2/14, at 2-6.1

On appeal, Mother presents the following issues for our review:

1

250 miles apart.
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I. Whether the trial court erred in entering an award of custody
not in accord with the statutory factors[?]

II. Whether the trial court erred in overemphasizing certain of
the statutory factors while ignoring the import of the remaining

being the primary caregiver, and Father essentially relocating
the [C]hildren[?]

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 cou
deductions or inferences from its factual findings. Ultimately,

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, this Court has stated that

[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).

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2
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 M.J.M. v. M.L.G., 63

A.3d 331

case-by-case assessment of all the factors that may legitimately affect the

physical, intellectual, moral and spiritual well-

omitted)). Moreover, in any custody action between two parents, there is no

presumption that custody should be awarded to a particular parent. 23

Pa.C.S.A. § 5327(a). Section 5328(a) of the Act sets forth sixteen factors

consider when awarding custody. Id. § 5328(a).3

. Mother

argues that the trial court abused its discretion by awarding primary physical

of the best interest factors. See -32. Mother

emphasizes the trial c

both parties demonstrate good parenting skills and each ha[s] encouraged a

2
See 23 Pa.C.S.A. §§ 5321 to 5340; see also C.R.F., 45 A.3d at 445
(stating that, where, as here, 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).
3
See Trial
Court Opinion, 4/2/14, at 6-7.

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J-A23044-14

strong relationship between the [C]hildren and the other parent. The

[C]hildre

was insufficient evidence in the record for the [trial] court to favor Father

over Mother as to the provision of stability and extended family, and to infer

Id. at 10; see also id.

failing to properly consider two incidents of prior physical abuse that Father

committed against Mother. Id. at 15-17. Finally, Mother asserts that the

trial court erred by failing to consider that she, not Father, had been the

Id. at 18, 33-36; see also id. at 34-35 (arguing that the trial court erred by

Initially, we observe that in M.J.M., supra, this Court stated that,

since section 5328(a) of the Act expres

shall be considered by the trial court, and the only factors that should be

tional

M.J.M., 63 A.3d

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at 338 (quoting 23 Pa.C.S.A. § 5328(a)). The Court recognized that the

section 5328(a) factors incorporated considerations relevant to the primary

it required positive emphasis

M.J.M., 63 A.3d at 339. Accordingly, to the extent that Mother

asserts that the trial court erred by failing to consider the primary caretaker

doctrine and weighing her status as the primary caretaker in her favor, she

is not entitled to relief.4

In its well-reasoned Opinion, the trial court thoroughly addressed each

of the sixteen best interest factors. See Trial Court Opinion, 4/2/14, at 7-

16. The trial court also explained its reasons for finding that these factors

See id. at 16-19. We incorporate the

See id. at 7-19.

In all of her claims on appeal, Mother essentially asks that we render

factual determinations different from those made by the trial court, and

make different credibility and weight decisions. Our role does not include

4
We additionally observe that the trial court specifically addressed in its

Father was serving in the military. See Trial Court Opinion, 4/2/14, at 19
(stating, inter alia
against [Father,] as he was earning money to provide for his family while
[Mother] was home to care for the [C] see also M.J.M., 63 A.3d

as a primary caretaker implicitly as it considers the section 5328(a) factors,
and to the extent the trial court finds it necessary to explicitly consider one

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making independent factual determinations, nor are we permitted to disturb

weight of the evidence, which are within the sole province of the fact-finder.

See C.R.F., supra; see also M.J.M., 63 A.3d at 337 (refusing to disturb

the best interest factors). Moreover, our review discloses that the record

See

C.R.F., supra

Accordingly, because we discern no abuse of discretion by the trial

court in weighing the relevant factors involved in this close case, we affirm

the Custody Order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014

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