J-A03032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.E.C., : IN THE SUPERIOR COURT OF
Appellee : PENNSYLVANIA
:
v. :
:
C.C.C., :
Appellant : No. 1387 MDA 2014
Appeal from the Order entered July 23, 2014,
in the Court of Common Pleas of Lancaster County,
Civil Division, at No(s): CI-1215695
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 12, 2015
C.C.C. (“Father”) appeals, pro se, from the order entered in the
Lancaster County Court of Common Pleas, denying Father’s petition for
contempt against J.E.C. (“Mother”), and directing that the custody order
entered on May 6, 2013, regarding their male children, I.G.C., born in
November of 2004, and R.D.C., born in July of 2007, (“Children”), shall
remain in full force and effect, subject to enumerated limited revisions. We
affirm.
The trial court set forth the factual background and procedural history
of this case, which we adopt herein. See Trial Ct. Op., 9/12/14, at 1-5.
Importantly, on October 17, 2012, Mother filed a custody complaint against
Father. On December 3, 2012, the trial court memorialized an agreement of
the parties into a custody order, under which the parties shared legal
*
Former Justice specially assigned to the Superior Court.
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custody of Children, Mother retained primary physical custody, and Father
exercised partial physical custody, in accordance with a schedule. The trial
court entered the order on December 5, 2012. By agreement of the parties,
on March 13, 2013, the trial court entered a custody order, dated March 11,
2013, directing that legal custody remained shared, primary physical
custody remained with Mother, and partial physical custody remained with
Father, in accordance with a schedule.
On May 3, 2013, the trial court held an evidentiary hearing. On May
7, 2013, the trial court entered an order, dated May 6, 2013, directing that
legal custody would remain shared by the parties, Mother would maintain
primary physical custody, and Father would exercise partial physical
custody, in accordance with a schedule.
On September 20, 2013, Father filed a pro se petition for modification
of the custody order. The parties were unable to reach an agreement at a
custody modification conference held on November 12, 2013. On December
20, 2013, the trial court entered an order, based on the recommendation of
the custody conference officer, directing that the May 6, 2013 order would
remain in effect, pending a custody hearing scheduled to occur on February
27, 2014.
On December 13, 2013, Father filed a pro se petition for contempt
against Mother. The trial court consolidated the hearing on the contempt
petition with the modification hearing. On December 31, 2013, Father filed
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a pro se petition for special relief requesting emergency custody of the
Children, and indicating that Father would present the matter in a Family
Business Court session on January 6, 2014. Father did not present the
petition. At Father’s request, on February 6, 2014, the trial court held a pre-
trial conference. On February 26, 2014, the hearing was re-scheduled to
June 4, 2014.
On February 27, 2014, Father filed another pro se petition for special
relief requesting emergency custody of the Children, and indicating that he
would present the matter in a session of Family Business Court on March 7,
2014. Father presented the petition, pro se, on March 7, 2014 in Family
Business Court. On that same date, the trial court denied the petition, and
entered its order on March 10, 2014.
On June 4, 2014 and June 5, 2014, the trial court held an evidentiary
hearing on Father’s modification and contempt petitions. The trial court
entered its opinion and order on July 23, 2014, denying Father’s petition for
contempt, and directing that the custody order entered on May 6, 2013,
shall remain in full force and effect, subject to the enumerated limited
revisions. On August 1, 2014, Father filed a pro se motion for
reconsideration.
On August 15, 2014, Father filed a pro se notice of appeal, along with
a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
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1925(a)(2)(i) and (b). The trial court denied reconsideration on August 18,
2014.
On appeal, Father raises the following issues for our review:
1. DID THE TRIAL COURT FOLLOW THE PROMPT
DISPOSITION OF CUSTODY CASES AS OUTLINED IN 23
PA.C.R. 1915.4 [SIC]?
2. DID THE TRIAL COURT INCORRECTLY NOTE FACTUAL
EVIDENCE AND TESTIMONY THROUGHOUT IT’S [SIC]
OPINION?
3. DID THE TRIAL COURT IMPROPERLY INDICATE THAT
[FATHER] WAS DEFICIENT IN ENCOURAGING THE
CHILDREN TO HAVE A RELATIONSHIP WITH THEIR
MOTHER DURING HIS VISITATION?
4. WAS THE TRIAL COURT IN ERROR WHEN IT
DETERMINED THAT THE LACK OF SUPERVISION BY
[MOTHER] WAS AN ISOLATED INCIDENT?
5. DID THE TRIAL COURT COMMIT AN ERROR BY GIVING
CONSIDERATION TO TESTIMONY GIVEN BY [MOTHER’S
WITNESS, C.C.]?
6. WAS THE TRIAL COURT IN ERROR WHEN IT
DETERMINED THAT [FATHER] INFLICTED AN EXCESSIVE
AMOUNT OF CORPORAL PUNISHMENT?
7. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
RECOGNIZED [MOTHER] TO BE THE PRIMARY CARETAKER
OF THE CHILDREN SINCE BIRTH?
8. DID THE TRIAL COURT COMMIT AN ERROR BY VIEWING
THE CURRENT CUSTODY ORDER AS AN ACCEPTABLE
STANDARD OF LIVING DUE TO THE DURATION IN WHICH
THE CURRENT ORDER HAS BEEN IN EFFECT?
9. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
MISTOOK [MOTHER’S] MANIPULATIVE ACTIONS TO SEIZE
SOLE CUSTODY OF THE CHILDREN TO BE A DIRECT
RESULT OF [FATHER’S] CONDUCT?
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10. DID THE TRIAL COURT RECOGNIZE TESTIMONY GIVEN
REGARDING THE ENCOURAGEMENT OF RELATIONSHIPS
WITH THE MATERNAL SIDE OF THE FAMILY BY [FATHER]?
11. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
FAILED TO UPHOLD THE RIGHTS OF THE CHILDREN TO
HAVE MORE ACCESS TO [FATHER] AS WAS REQUESTED
BY [I.G.C.] DURING TESTIMONY?
12. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
CONSIDERED THAT BOTH PARENTS ARE ABLE TO SIMPLY
ATTEND THE DAILY PHYSICAL, EMOTIONAL,
DEVELOPMENTAL, EDUCATIONAL, AND SPECIAL NEEDS OF
THE CHILDREN RATHER THAN CONSIDERING EACH
PARTY’S ACTUAL PERFORMANCE OF SAID NEEDS?
13. DID THE TRIAL COURT COMMIT AN ERROR IN
DETERMINING THAT TRANSFERRING CUSTODY TO THE
CHILDREN’S FATHER [ ] WOULD BE MORE DISRUPTIVE
THAT [SIC] TRANSFERRING CUSTODY TO A CHILD CARE
GIVER?
14. WAS THE TRIAL COURT IN ERROR WHEN IT CLAIMED
THAT IT IS A FACT THAT THERE WAS CORROBORATED
MANIPULATIVE BEHAVIOR BETWEEN [FATHER] AND
WITNESS [T.F.] TO REMOVE [MOTHER’S WITNESS, C.C.]
FROM A RESIDENTIAL FACILITY?
15. DID THE TRAIL [SIC] COURT COMMIT AN ERROR
WHEN IT MADE THE DETERMINATION THAT THERE WAS
NO EVIDENCE TO SUPPORT THE CONTEMPT ALLEGATIONS
MADE BY [FATHER] AND TO FURTHER COMMENT THAT IT
IS VIEWED THAT SUCH CLAIMS WERE PUNITIVE IN
NATURE AND WERE BEING USED TO MANIPULATE THE
TRIAL COURT TO GAIN FAVOR?
16. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT’S
[SIC] DETERMINATION THAT THE CURRENT LEVELS OF
THE CHILDREN’S STRESS WERE NOT EXCESSIVE ENOUGH
TO WARRANT A CHANGE IN VISITATION[,] WHICH
SUGGESTS THAT LIVING WITH THESE SYMPTOMS, WHICH
WERE NOT A CONCERN PRIOR TO SEPARATION, ARE NOW
AN ACCEPTABLE STANDARD OF LIVING?
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17. WAS THE TRIAL COURT IN ERROR WHEN, ON MORE
THAN ONE OCCASION, IT RUSHED [FATHER’S]
TESTIMONY AND QUESTIONING OF WITNESSES,
WARNING OF EXCESSIVE DELAYS IN SCHEDULING THE
CONTINUANCE?
18. DID THE TRIAL COURT COMMIT AN ERROR NOT ONLY
WHEN IT FAILED TO RECOGNIZE THE MULTIPLE
INSTANCES WHERE [MOTHER] HAS TAKEN SOLE ACTION
TO MAKE MAJOR MEDICAL AND EDUCATION DECISIONS
FOR THE CHILDREN WITHOUT INFORMING OR OBTAINING
INPUT FROM [FATHER], BUT ALSO BY CONFUSING THE
SITUATIONS WHICH WERE PRESENTED BY [FATHER] TO
SUPPORT SUCH ALLEGATIONS?
19. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
DETERMINED THAT THE MISINFORMATION PROVIDED BY
[MOTHER] ON MEDICAL INTAKE FORMS TO THREE (3)
DIFFERENT MEDICAL PROVIDERS WAS GIVEN IN GOOD
FAITH?
Father’s Brief at 5-11.
As the custody trial in this matter was held in June of 2014, the Child
Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321 to 5340, is applicable. C.R.F.
v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if 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).
We apply the standard of review, as follows, in matters involving a
trial court’s decision on a contempt petition.
When we review a trial court’s finding of contempt, we are
limited to determining whether the trial court committed a
clear abuse of discretion. This Court must place great
reliance on the sound discretion of the trial judge when
reviewing an order of contempt. This [C]ourt also has
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stated that each court is the exclusive judge of contempts
against its process.
G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013), (citations and quotation
marks omitted).
To sustain a finding of civil contempt, the complainant
must prove certain distinct elements by a preponderance
of the evidence: (1) that the contemnor had notice of the
specific order or decree which he is alleged to have
disobeyed; (2) that the act constituting the contemnor’s
violation was volitional; and (3) that the contemnor acted
with wrongful intent.
P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012), appeal denied,
94 A.3d 1010 (Pa. 2014), (citation omitted).
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.
With any child custody case, the paramount concern is
the best interests of the child. This standard requires a
case-by-case assessment of all the factors that may
legitimately affect the physical, intellectual, moral and
spiritual well-being of the child.
G.A., 72 A.3d at 268-69 (quotation marks and citations omitted).
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In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following 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.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. 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. § 5338.
Section 5328(a) sets forth the best interest factors that the trial court must
consider. 23 Pa.C.S. § 5328(a).
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:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
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(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323(a)(1)-(7).
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.
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(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.
(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. § 5328(a)(1)-(16).
In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained
the following: “All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order. . . . The record
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must be clear on appeal that the trial court considered all the factors. Id. at
822-23 (emphasis omitted).
Section 5323(d) provides that a trial court “shall delineate the reasons
for its decision on the record or in open court or in a written opinion or
order.” 23 Pa.C.S. § 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 of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super.), appeal
denied, 70 A.3d 808 (Pa. 2013). Section 5323(d) applies to cases involving
custody and relocation. A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super.
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, [ ] 68 A.3d 909 ([Pa.] 2013).
A court’s explanation of reasons for its decision, which
adequately addresses the relevant factors, complies with
Section 5323(d). Id.
A.V., 87 A.3d at 822-23.
In Ketterer v. Seifert, 902 A.2d 533 (Pa. Super. 2006), this Court
stated,
“Although the express wishes of a child are not controlling
in custody decisions, such wishes do constitute an
important factor that must be carefully considered in
determining the child’s best interest.” The weight to be
attributed to a child’s testimony can best be determined by
the judge before whom the child appears. The child’s
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preference must be based upon good reasons and his or
her maturity and intelligence must also be considered.
Id. at 540 (citations omitted). In Johns v. Cioci, 865 A.2d 931 (Pa. Super.
2004), this Court opined: “We are mindful that the child’s preference is not
controlling . . . .” Id. at 943.
Here, the trial court addressed all of the section 5328(a) factors in its
opinion entered on July 23, 2014. After a careful review of the entire record,
including the notes of testimony and exhibits, the applicable law, as well as
the arguments of the parties, we conclude that the thorough opinion by the
Honorable Merrill M. Spahn, Jr., entered on September 15, 2014 pursuant to
Pa.R.A.P. 1925(a), addresses the issues raised by Father and supports the
reasons for the trial court’s decision denying Father’s petition for contempt,
and denying his petition for modification of the existing custody order,
subject to the enumerated limited revisions. We find ample, competent
evidence in the record to support the trial court’s decision regarding the
contempt and custody modification petitions. G.A., 72 A.3d at 269; P.H.D.,
56 A.3d at 706 n.7; C.R.F., 45 A.3d at 443. Thus, we find no error of law or
abuse of discretion. Accordingly, we adopt the trial court’s opinions entered
on September 15, 2014 and July 23, 2014 as our own.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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