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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.H.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
R.D.B.
Appellant No. 1719 MDA 2014
Appeal from the Order Entered September 18, 2014
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-10-15204
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 10, 2015
R.D.B. (“Father”) appeals from the order entered September 19, 2014,
in the Court of Common Pleas of Lancaster County, which denied his petition
to modify the existing custody order, with respect to his minor daughter,
R.C.B., born in November of 2013, and his minor sons, C.D.B., born in
December of 2005, and K.B.B., born in October of 2007 (collectively, “the
Children”). We affirm.
On December 16, 2010, Father’s wife, E.H.B. (“Mother”), filed a
complaint in custody which resulted in the entry of a custody stipulation as
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an order of court on January 22, 2013.1 Pursuant to the custody stipulation,
the parties were awarded shared legal custody and Mother was awarded
primary physical custody. Father was awarded partial physical custody on
Tuesday and Thursday evenings from after work until 8:00 p.m. during the
school year and until 9:00 p.m. during the summer, as well as on alternating
weekends, from Thursday after work until Monday morning.
On December 5, 2014, Father filed a petition to modify the January
22, 2013 custody order. In his petition, Father requested shared physical
custody of the Children. A custody hearing was held on September 4, 2014,
during which the trial court heard the testimony of Father, Father’s friend,
C.H.C., and Mother. The trial court also interviewed each of the Children, in
camera. Following the hearing, on September 19, 2014, the court entered
its order denying Father’s petition to modify. The order also indicated that
the provisions of the January 22, 2013 custody order would remain in effect.
On October 10, 2014, Father timely filed a notice of appeal, along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i).
On appeal, Father presents the following issues for our review:
1. Did the [t]rial [c]ourt abuse its discretion when it denied
[Father’s] request for shared physical custody of the Children
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1
Testimony from the September 4, 2014 custody hearing indicated that
Mother and Father are, or were, going through a divorce. However, it is not
clear from the record whether a divorce decree has been entered.
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and granted primary physical custody of the Children to [Mother]
despite the [c]ourt’s acknowledgement that [Father] is a very
involved and loving father, that the parties can effectively co-
parent, that the parties live two blocks from each other, and that
the [c]ourt concluded that the applicable enumerated factors
under 23 Pa. C.S.A. § 5328 were resolved equally in favor of
both [Mother] and [Father]?
2. Did the [t]rial [c]ourt commit an error of law by favoring one
parent over another in violation of 23 Pa. C.S.A. § 5327(a) when
it granted primary physical custody of the Children to [Mother]
where the [c]ourt acknowledged that [Father] is a good father,
that the parties can effectively co-parent, and when the [c]ourt
concluded that the applicable enumerated factors under 23 Pa.
C.S.A. § 5328 were resolved equally in favor of [Mother] and
[Father]?
3. Did the [t]rial [c]ourt commit an error of law and/or abuse its
discretion by improperly relying upon the prior custody schedule
as creating a presumption that primary custody of the Children
should remain with [Mother] when the [t]rial [c]ourt denied
[Father’s] request for shared physical custody and granted
primary physical custody of the Children to [Mother], despite the
[c]ourt’s acknowledgement that [Father] is a very involved and
loving father, that the parties can effectively co-parent, that the
parties live two blocks from each other, and that the [c]ourt
concluded that the applicable enumerated factors under 23 Pa.
C.S.A. § 5328 were resolved equally in favor of [Mother] and
[Father]?
Father’s Brief at 10.2
Our standard of review is well-established:
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2
In his brief, Father presents his second and third issues together in a single
argument section, in violation of our Rules of Appellate Procedure. See
Pa.R.A.P. 2119(a) (providing that the argument “shall be divided into as
many parts as there are questions to be argued; and shall have at the head
of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.”).
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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) (quoting A.D. v.
M.A.B., 989 A.2d 32, 35–36 (Pa. Super. 2010)).
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)).
“The primary concern in any custody case is the best interests of the
child. The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child's
physical, intellectual, moral, and spiritual well[-]being.” J.M.R. v. J.M., 1
A.3d 902, 911 (Pa. Super. 2010) (citing Saintz v. Rinker, 902 A.2d 509,
512 (Pa. Super. 2006)).
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Relevant to this custody case is Section 5328(a) of the Child Custody
Act, 23 Pa.C.S.A. §§ 5321-5340, which provides as follows:
(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.
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(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.
23 Pa.C.S.A. § 5328(a).
This Court has stated that, “[a]ll of the factors listed in section
5328(a) are required to be considered by the trial court when entering a
custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)
(emphasis in original). Further,
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 custody]
factors prior to the deadline by which a litigant must file a notice
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of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). . . .
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,
[620 Pa. 710], 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.
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014).
On appeal, Father raises three interrelated issues, which we address
together. The crux of Father’s argument is that the trial court abused its
discretion by denying his request for shared physical custody when it
concluded that the Section 5328(a) factors weighed equally in favor of both
Father and Mother. Father’s Brief at 16-22. In addition, Father asserts that
the court relied on an impermissible presumption in favor of Mother in order
to reach its decision. Id. at 20-22. Father directs our attention to Section
5327(a) of the Custody Act, which provides as follows:
(a) Between parents.--In any action regarding the custody of
the child between the parents of the child, there shall be no
presumption that custody should be awarded to a particular
parent
23 Pa.C.S.A. § 5327(a).
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion by denying Father’s petition to
modify custody. At the conclusion of the September 4, 2014 custody
hearing the trial court thoroughly considered, on the record in open court,
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each of the Section 5328(a) factors. See N.T., 9/4/2014, at 224-31. As
noted by Father, the court did not state that any of the factors weighed in
favor of either parent, instead indicating that each factor was either
irrelevant to the proceedings, or that the factor favored both parents
equally. See, e.g., id. at 229 (“I find that both parents are equally likely to
maintain a loving, stable, consistent and nurturing relationship with the
[C]hildren adequate for their emotional needs.”). However, after
considering each of the factors, the court stated as follows:
To close, I guess I will be a bit repetitive. I, clearly, have
not made my decision in this case. As I told you, I will do so
only upon further reflection on the factors, which I just
articulated, of which I will determine the appropriate weight to
give to each factor. As I also indicated, I will consider all other
relevant provisions of law and everything that has been
presented to me today.
I honestly and firmly tell the both of you, and I can’t be
any clearer, that it is the consistency and stability for your
children that will be of utmost importance to me with the
decision that I render. I hope to render a decision in the coming
days, and I hope that you both [will] be served a copy of it as
quickly as possibl[e].
Id. at 231.
Thus, the record does not support Father’s contention that the trial
court resolved the Section 5328(a) factors equally in favor of both parents.
To the contrary, the court indicated explicitly that it had not reached a
decision, and that it would do so only upon “further reflection on the
factors.” Id. Ultimately, the court determined that it would be in the best
interests of the Children to maintain the current custody schedule based
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primarily on the Children’s need for “consistency and stability.” Trial Court
Opinion, 11/7/2014, at 13-14. The court explained in its opinion pursuant to
Pa.R.A.P. 1925(a):
The [c]ourt’s denial of Father’s request for shared physical
custody of the [C]hildren was in no way manifestly unreasonable
or result of partiality, prejudice, bias, or ill will; rather the
[c]ourt’s decision was based primarily on the need for
consistency and stability for the [C]hildren. The parties agreed
upon a schedule of custody less than one year before Father filed
his request for modification. The [c]ourt found as credible
Mother’s testimony that the current order should be maintained
as the [C]hildren are thriving, they have stability and security,
they have a home base, there are no complaints from the
[C]hildren, and the [C]hildren are doing well in school and
succeeding in their activities. Based upon the testimony of the
parties and the [C]hildren and the weight given to the custody
factors, the [c]ourt determined that the schedule agreed
previously upon by the parties was one that provided
consistency and stability for the [C]hildren and should continue
to be the schedule followed by the parties. Accordingly, the
[c]ourt denied Father’s request for shared physical custody of
the [C]hildren.
Id. (citations to the record omitted).
The court’s decision is supported by the testimony at the September 4,
2014 custody hearing. As noted by the court, Mother testified that the
Children were thriving under the current custody schedule. N.T., 9/4/2014,
at 177. Specifically, Mother stated that the Children were doing well in
school and with regard to their other activities. Id. Mother indicated that
the Children had not complained to her about not seeing Father frequently
enough. Id. Mother also opined that “there’s a sense of stability, [and]
security” under the current arrangement, that the Children have a “home
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base,” and that “things are working the way they are today, they don’t need
to be changed.” Id. It was reasonable for the court to accept Mother’s
testimony, and to conclude that the Children’s need for stability and
consistency would be promoted by denying Father’s petition to modify.
Additionally, we discern no basis to conclude that the court’s decision is
based on an impermissible presumption in favor of Mother. Therefore,
Father’s issues on appeal fail.
Accordingly, because we conclude that the trial court did not abuse its
discretion by denying Father’s petition to modify custody, we affirm the
order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2015
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