J-A04044-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
K.W., N/K/A, K.S., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
J.J.W., :
:
Appellant : No. 1459 WDA 2014
Appeal from the Order Entered August 12, 2014,
in the Court of Common Pleas of Greene County,
Civil Division, at No(s): A.D. No. 385, 2004
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 06, 2015
J.J.W. (Father) appeals from the order entered August 12, 2014,
which, inter alia, reduced Father’s partial physical custody of his minor sons.
Father also challenges the trial court’s July 31, 2014 order which sealed the
record of the children’s interviews with the trial court and prohibited both
parties’ counsel from any discussion of the interviews. Upon review, we
affirm.
The trial court summarized the underlying facts of this case as follows:
This action involves twin boys, R.J. and T., born [in March
of] 2004. The parents are K.L.S., [formerly K.L.W., (Mother)]
and … Father, who were married at the time of the boys’ birth,
but separated shortly thereafter. [The trial court] last discussed
this case at length in June of 2012. At that time [the trial
court] continued the pattern that was first established in July of
2008, providing that the parties had joint legal custody and that
primary physical custody would be with Mother. Father would
have in-custody visits from the first to the sixth day of each
*Retired Senior Judge assigned to the Superior Court.
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month and from the fifteenth to the twenty-first day of each
month. When this regime was initiated Mother lived in the
Jefferson Morgan School District and Father lived in the Central
Greene School District. When the boys started school,
transportation was not much of a problem. At some point,
Father began working in Wheeling, West Virginia and in 2011,
moved to Valley Grove, West Virginia, a few miles west of the
Pennsylvania line, near interstate 70. The custody schedule
continued with someone, usually the paternal grandmother, []
driving the boys to and from school in Jefferson, Greene
County. The trip takes about 50 minutes one way.
In 2010, Father petitioned for modification, but this
request was later withdrawn. In September of 2011, Mother
requested modification. Her request came to be heard by [a]
Child Custody Hearing Officer and on November 3, 2011, [the
Child Custody Hearing Officer] recommended that the existing
custody order remain unchanged. Mother requested a hearing
de novo. After several continuances [the trial court] heard the
evidence and on June 25, 2012, [the trial court] issued
essentially the same order. In March of 2014, Mother again
requested modification. On May 7, 2014, the Hearing Officer
denied the request, leaving in place the June 2012 order.
Mother again requested a hearing de novo and [the trial court]
heard the matter on July 31 and August 1, 2014. [The children
were interviewed in chambers during the course of the hearing.]
Trial Court Opinion, 8/12/2014, at 1-2.
The trial court issued the order regarding the children’s interviews on
July 31, 2014, and the custody order on August 12, 2014. Father then
timely filed the instant appeal.
Father sets forth several issues for our review, which can be reduced
to the following: whether the trial court erred and abused its discretion in
(1) sealing the record of the children’s interviews and prohibiting the parties’
counsel from any discussion of the interviews, and (2) reducing the
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children’s overnight visits with Father from eleven per month to six per
month.
Father first argues that, in entering the July 31, 2014 order, “the
[t]rial [c]ourt denied Father a due process right to be aware of and
appreciate all testimony and evidence offered against him.” Father’s Brief
at 20. Father further argues that the order restricted the ability of counsel
to inform and consult with Father regarding the proceedings in contravention
of Pennsylvania Rule of Professional Conduct 1.4 and, because Father could
not be made aware of the children’s testimony, Father was not afforded the
opportunity to offer evidence in response to it.1
Upon review, we discern no reversible error with respect to the trial
court’s July 31, 2014 order. Even assuming arguendo that the order was
improper, we note the following.
When the court has come to a conclusion by the exercise of its
discretion, the party complaining of it on appeal has a heavy
burden; it is not sufficient to persuade the appellate court that it
might have reached a different conclusion if, in the first place,
1
The parties do not dispute that the trial court acted in accordance with
Pa.R.C.P. 1915.11(b), which governs the procedure a court is to use in
questioning children in custody actions:
The court may interrogate a child, whether or not the subject of
the action, in open court or in chambers. The interrogation shall
be conducted in the presence of the attorneys and, if permitted
by the court, the parties. The attorneys shall have the right to
interrogate the child under the supervision of the court. The
interrogation shall be part of the record.
Pa.R.C.P. 1915.11(b).
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charged with the duty imposed on the court below; it is
necessary to go further and show an abuse of the discretionary
power. An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.
Joselit v. Joselit, 544 A.2d 59, 61 (Pa. Super. 1988) (quotation marks
omitted) (quoting In re Garett’s Estate, 6 A.2d 858, 860 (Pa. 1939)).
Here, the findings of the trial court concerning what the children stated
during their interviews were set forth in its opinion. Father fails to indicate
in his brief any specific evidence he would have submitted, in light of the
trial court’s findings, to rebut or support the children’s testimony had his
attorney been able to apprise him of it earlier. Accordingly, Father has not
persuaded us that the trial court’s order resulted in prejudice to him and that
he is entitled to relief on this basis.
In his second issue, Father argues that the trial court erred and
abused its discretion in reducing the children’s overnight visits with Father
from eleven per month to six per month. We consider this issue mindful of
the following.
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
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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.
***
[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.
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 wellbeing.
We must accept the trial court’s findings that are
supported by competent evidence of record, and we defer to the
trial court on issues of credibility and weight of the evidence.
Additionally,
[t]he parties cannot dictate the amount of weight the
trial court places on evidence. Rather, the
paramount concern of the trial court is the best
interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the
best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
R.L.P. v. R.F.M., __ A.3d __, 2015 WL 548639, *5 (Pa. Super. filed
February 11, 2015) (citations and quotation marks omitted).
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Father argues that, as demonstrated by the evidence at the custody
trial, the children were thriving under the prior custody arrangement and
both parents exhibited a sufficient amount of cooperation such that a
reduction in Father’s custody was improper. Father also claims that the trial
court’s analysis of the factors in 23 Pa.C.S. § 5328(a) does not support a
reduction in Father’s custody of the children, as only one factor—the well-
reasoned preference of the children—appeared to weigh in favor of Mother.
In this regard, Father further maintains that the trial court placed too much
weight on the children’s preference, which was not in fact “well-reasoned,”
given that the trial court found their testimony not credible with respect to
the negative things they said about Father. Moreover, Father contends that
the trial court failed to find that Mother has discouraged a meaningful
relationship between the children and Father, despite evidence
demonstrating that to be the case. Finally, Father argues that the trial court
improperly considered the children’s participation in horse shows with
Mother and a traffic violation committed by their paternal grandmother as
independent factors for reducing Father’s custody time.
Upon analyzing the factors in section 5328(a), the trial court, who has
lived with this case since 2004, explained that a reduction in Father’s
custody was proper because the implementation of the existing schedule
was not working. Trial Court Opinion, 8/12/2014, at 9. The trial court
observed that the relationship between Father and the children continues to
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deteriorate and that the children want nothing to do with him. Id. at 9-10.
Moreover, the trial court explained that, although it did not find their
statements painting Father in a negative light to be credible, it was
significant that the children made the statements at all. Id. at 10. The trial
court further suggested that counseling was the only possible way to mend
the relationship between Father and the children.2 The trial court concluded
that it was time to reduce the contact between Father and the children, as
doing so would not harm their relationship, which could “hardly get worse,”
and it was in everyone’s best interest to reduce the time spent commuting.
Id. at 11.
In light of the above analysis, we discern no abuse of discretion.
Moreover, Father’s arguments largely amount to a contention that the trial
court should have interpreted certain evidence in his favor or otherwise
challenge the weight the trial court attributed to the evidence and its
credibility determinations, which we may not disturb on appeal.3 See R.L.P.
2
The trial court explained that the parents and children were in counseling
previously, “but that arrangement died away, apparently because of a lack
of interest by Father.” Trial Court Opinion, 8/12/2014, at 10.
3
Further, we reject Father’s argument that the trial court improperly
considered the children’s participation in horse shows with Mother and a
traffic violation committed by their paternal grandmother as factors for
reducing Father’s custody time. The trial court included these considerations
in the context of its analysis of the factors enumerated in section 5328(a).
The trial court did not abuse its discretion in so doing.
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v. R.F.M., __ A.3d __, 2015 WL 548639, at *5. Thus, Father is not entitled
to relief on this issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
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K.W. v. J.J.W.
Combined Opinion