L.J.D. v. K.J.D.

J-S13028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.J.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

K.J.D.

Appellee No. 1667 WDA 2014

Appeal from the Order Entered September 19, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): FD 09-008294-016

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.: FILED JUNE 02, 2015

Appellant, L.J.D. (Mother), appeals from the September 19, 2014

custody order modifying the custody arrangement between Mother and

Appellee, K.J.D. (Father). Said order granted Mother primary physical

custody, Father partial physical custody, and the parties shared legal

custody with respect to their daughters, M.S.D. and S.J.D. (collectively, the

Children).1 After careful review, we affirm.

The certified record reveals an extensive factual and procedural history

of the underlying custody matter beginning in July 2009 when Mother filed a

divorce complaint. Father then filed an answer and counterclaim in divorce,

____________________________________________

1
M.S.D. was born in April 2004, and S.J.D. was born in February 2008.
J-S13028-15

and subsequent complaint for shared custody of the Children.2 On March

30, 2011, an interim order was entered which granted Mother primary

physical custody, and Father partial custody on alternating weekends from

Friday at 6:15 p.m. until Sunday at 6:15 p.m., and every Wednesday from

6:15 p.m. until Thursday morning. Interim Custody Order, 3/30/11, at ¶1.

In addition, the parties followed a holiday and vacation custody schedule

pursuant to an August 29, 2011 interim order. Interim Custody Order,

8/29/11. In April 2013, Father filed a petition for modification of partial

custody, and on August 21, 2013, a half-day hearing on the matter was

held. A second full-day hearing was scheduled for February 14, 2014. On

February 7, 2014 Father filed a petition to discontinue his partial custody

and for shared physical custody, wherein, he requested shared or primary

physical custody of the Children. Father’s Petition to Discontinue Partial

Custody Modification/Petition for Shared Physical Custody, 2/7/14, at ¶ 12.

A hearing on Father’s petition occurred on August 26, 28, and 29,

2014. Father testified on his own behalf, and he presented the testimony of

P.D., his girlfriend; N.S., his cousin who assists him with housework during

his custodial time; Susan Berman, Father’s “parent coach”; and L.D.S., his

mother (Paternal Grandmother). Mother testified on her own behalf, and

she presented the testimony of A.W., Father’s former girlfriend and the

____________________________________________

2
Mother and Father were divorced in April 2013.

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mother of his two-year-old son, T.W.; and J.L., Mother’s fiancé. In addition,

the parties’ oldest child, M.S.D., who was then ten years old, testified in

camera.

Subsequently, on September 19, 2014, the trial court entered its

findings of fact and order, wherein the trial court made 145 findings of fact

based on the testimonial evidence. See generally Findings of Fact and

Order, 9/19/14, at 12-33. The trial court concluded that it is in the

Children’s best interest to increase Father’s custodial time but not to grant

him equally shared physical custody. See id. at 33, ¶ 208. As such, the

trial court increased Father’s partial physical custody from eight days per

every four-week period to twelve days per every four-week period, as

follows. The order awarded Mother physical custody every Sunday from

6:15 p.m. to every Wednesday at 6:15 p.m., Father every Wednesday at

6:15 p.m. to every Friday at 6:15 p.m., and the parties alternating

weekends from Friday at 6:15 p.m. to Sunday at 6:15 p.m. Custody Order,

9/19/14, at ¶ 1a. The order also included a holiday schedule and a vacation

schedule. Id. at ¶¶ 2-3. In addition, the order directed the parties to

continue attending co-parenting counseling with Dr. Bob Wilson. Id. at ¶

12. Further, the order granted the parties shared legal custody.3 Id. at ¶ 6.

____________________________________________

3
In addition, the order disposed of a motion for contempt filed by Mother,
wherein she accused Father of violating the August 29, 2011 interim order
by inappropriately adding four vacation days to his regular custodial period.
(Footnote Continued Next Page)

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On October 14, 2014, Mother filed a timely notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i). On November 5, 2014, the trial court issued an opinion

pursuant to Rule 1925(a).

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

I. Whether the trial court committed an error of law
and/or abused its discretion by failing to consider all
of the factors that affect the “best interest” of the
[C]hildren in question and render a comprehensive
opinion regarding such?

II. Whether the trial court committed an error of law
and/or abused its discretion in failing to consider and
give proper weight to all things that affect the “best
interest” of the [C]hildren?

III. Whether the trial court committed an error of law
and/or abused its discretion in failing to consider
certain criteria in determining what is in the best
interest of the [C]hildren?

IV. Whether the trial court committed an error of law
and/or abused its discretion by making a finding at
the conclusion of the hearing that was contrary to
the sufficiency of the evidence present[ed]?

V. Whether the trial court committed an error of law
and/or abused its discretion by ignoring credible and
relevant testimony and critical issues raised without
explanation?

_______________________
(Footnote Continued)

See Findings of Fact and Order, 9/19/14, at ¶ 211. The trial court found
Father in contempt of the order and sanctioned him by giving Mother
“priority to choose her vacation custodial periods with the Children in 2015 if
the parties’ proposed periods overlap.” Custody Order, 9/19/14, at ¶ 14.

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VI. Whether the trial court committed an error of law
and/or abused its discretion by not carefully
weighing and considering the well-reasoned
preference of the minor child?

Mother’s Brief at 4.4

The scope and standard of review in custody matters is as follows.

[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it…. However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination….
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,

[O]n issues of credibility and weight of the
evidence, we defer to the findings of the trial
[court] who has had the opportunity to
observe the proceedings and demeanor of the
witnesses.

The 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.
____________________________________________

4
We have reordered Mother’s issues for ease of disposition.

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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.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations

omitted).

Further, we have stated the following.

[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.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d

674, 677 (Pa. Super. 2004).

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Relevant to this custody case are the factors set forth in Section

5328(a) of the Child Custody Act (the Act), 23 Pa.C.S.A. §§ 5321-5340,

which 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.

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23 Pa.C.S.A. § 5328(a).5

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, citation omitted).

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 of appeal.” C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
(Pa. 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., supra at 822-823. With these standards in mind, we turn to the

merits of this appeal.

Mother’s arguments on appeal are interrelated. Initially, to the extent

Mother’s arguments are based on her assertion that Father had the burden
____________________________________________

5
The Act was amended, effective January 1, 2014, to include the additional
factor at Section 5328(a)(2.1).

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of proving that a substantial change in circumstances warranted a change in

the physical custody award, Mother’s arguments are flawed. See Mother’s

Brief at 13. It is well-settled that custody can be changed “without proof of

a substantial change in circumstances when it is shown that the change is in

the best interest of the child.” Clapper v. Harvey, 716 A.2d 1271, 1273

(Pa. Super. 1998), quoting Moore v. Moore, 634 A.2d 163, 169 (Pa. 1993).

With respect to the Children’s best interests, Mother argues that the

trial court failed to consider and/or properly weigh all of the evidence and

failed to render a comprehensive opinion analyzing the evidence. Mother’s

Brief at 14, 27. In fact, Mother argues that the custody order resulted from

the trial court’s bias in favor of Father rather than from the evidence

presented. Id. at 14.

Specifically, Mother contends that the court failed to consider the

Children’s best interests by (1) limiting its analysis to the parties’ conflict;

(2) not considering whether maintaining the status quo was in the Children’s

best interests; (3) failing to consider that Mother has been the Children’s

primary caregiver; and (4) failing to consider the strained relationship

between M.S.D. and Father. Id. at 14-17. In addition, Mother argues that

the trial court erred and/or abused its discretion in finding that Section

5328(a)(1) favors Father, i.e., which party is more likely to encourage and

permit frequent and continuing contact between the Children and another

party. Mother’s Brief at 22.

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Further, Mother argues the trial court erred and/or abused its

discretion with respect to its credibility and weight of the evidence

determinations regarding A.W., Father’s former girlfriend and the mother of

his two-year-old son, T.W., and P.D., Father’s current girlfriend. Id. at 19-

22. Finally, Mother argues that the trial court committed an error of law

and/or abused its discretion by not carefully weighing and considering the

custody preference of the parties’ oldest child, M.S.D., then age ten, who

testified in camera that she did not want to spend additional time with

Father. Id. at 12-13; see also N.T., 8/29/14, at 280.

Contrary to Mother’s assertion, the trial court issued a comprehensive

opinion along with the subject order that included the trial court’s factual

findings and set forth its assessment of all of the Section 5328(a) custody

factors. See Findings of Fact and Order, 9/19/14. In addition, the trial

court issued a Rule 1925(a) opinion wherein it incorporated its September

19, 2014 findings of fact, addressed the pertinent Section 5328(a) factors,

and the alleged errors in Mother’s concise statement. See Trial Court

Opinion, 11/5/14, at 7-21. With respect to Mother’s allegation that the

custody decision is based on the trial court’s bias in favor of Father rather

than on the record evidence, the trial court responded that Mother’s

allegation “is baseless. The [trial c]ourt made its decision based on the

testimony and other evidence presented by the parties at the three (3) day

hearing.” Id. at 21.

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After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Donald R.

Walko, Jr., we conclude that Mother’s issues merit no relief. The trial court

comprehensively discussed and properly disposed of the questions

presented. See Trial Court Opinion, 11/5/14, at 1-23. Further, we defer to

the trial court’s determinations regarding credibility and weight of the

evidence. See A.V., supra. The record supports the trial court’s decision,

and we will not disturb it. Accordingly, we affirm on the basis of the trial

court’s November 5, 2014 Rule 1925(a) opinion, which incorporates the trial

court’s September 19, 2014 findings of fact. The parties are directed to

attach a redacted copy6 of the trial court’s opinion in the event of further

proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/2/2015

____________________________________________

6
The copies shall include the redacted names of Mother, Father, the
Children, Father’s younger son, T.W., and all of the witnesses.

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 Circulated 05/14/2015 11:45 AM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION

L,.J:"D.
Plaintiff, No.: FD 09-008294·016

v.

Defendant

OPINION

WALKO,J. November 5, 2014

Plaintiff/Mother L J: il). (hereinafter referred to as "Mother") appeals this

Court's Order of Court of September 16, 2014. For the reasons set forth in this Opinion, this

Order of Court should be affirmed,

PROCEDURAL HISTORY
The procedural history of the above-captioned matter is incorporated by reference to

Paragraphs 1 through 61 of this Court's Findings of Fact of September 16, 2014 as though fu11 y

set forth herein. 1

Following a three (3) day hearing before the undersigned held on August 2?1\ 2811i and

29th, 2014, at which time the Court took testimony and evidence regarding Defendant's/ Father's

K.J:' D. (hereinafter referred to as "Father") request for shared custody and

Mother's Motion for Contempt, this Court entered detailed Findings of Fact and the Order of

Court dated September 16, 2014.

I The procedural history of.thls case is extensive. The Coull will note that over 200 pleadings are filed r.1F record. Relevant lo the
instant action is Father's Petition fur Modification filed in January of 2014. Father sought modification of his periods of partinl
physical custody as set fort ii within the March 30, 2011 Order of Court.Subsequently, Mother filed a Motion for Contempt in
September of 2014 for Father's purported contempt of the vacation provisions within the August 30, 2011 Order of Court.
Mother's Motion for Contempt was consolidated with the three (3) day trial scheduled to address Father's pending Petition for
Custcdy Modincation.

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 Circulated 05/14/2015 11:45 AM

The September 16, 2014 Order provides Mother with primary physical custody of the

parties' minor children, M. S. D. '.DOB: 4/23/04) and S.J: !). (DOB:

2/23/08) (hereinafter referred to as "Children"). Pursuant to this Order, Mother exercises custody

of the Children every Sunday at 6:15 p.rn. to Wednesday at 6:15 p.m., as well as every other

weekend from Friday at 6:15 p.m. to Sunday at 6:15 p.m. The September 16, 2014 Order

provides an extension of Father's periods of partial physical custody. Father now exercises

custody of the Children every Wednesday at 6;15 p.m. to Friday at 6:15 p.m. Jn addition, Father

exercises custody of the Children every other weekend. His periods of weekend custody are also

scheduled from Friday at 6:15 p.m. to Sunday at 6:15 p.m.

In summary, the September 16, 2014 Order of Courl effectuates a modification of the

physical custodyprovisions set forth in the March 30, 2011 Order of Court whereby Father

exercises an additional four (4) overnights within a four (4) week period. This modification is as

illustrated ln the physical custody charts set forth below:

*M arc I1 30,, 2011 Pl rysrca
' I CustodyI Shc e d u I e:
W/Uili Mn#lfov Tuesdav IV<'dn~sa'ov ThNISday Friday SiJ1t1rdaY
1 M M f .,, r f
Sundo'i
M
Slartlng al Slllr11ng QOcr SlJ!nlng •1 Slorllng al
6: ISom school 6:15pm 6: !Spn1
2 M ,II F M t,f ,\{ M
Slarllng ct
6:lSnm
J M M F M r F M
SIJl•tlng ttl Storlfng allor Starling •t S1ortln1:n1
6:!Snu1 seheol 6:JSpm 6:lSpm
4 M M F M hf M M
Slorting al
6:lSnm -

,,. eptember
s 1 6 2 0 1 4 Phvsical Custody Sch edn e:
W£EK Mondov Tuesuav Wedns household, whether there is a continued risk of harm to the children or an

abused narty and which party can better provide adequate physical safeguards and

supervision of the childrerr1,

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Based upon credible testimony the Court found that Mother and Father are able to

provide adequate physical safeguards and supervision for the Children. The Court also found

that there is no credible evidence of abuse committed by either party or a member of a party's

household.

Mother's accusations of abuse by Father, as set forth within a Petition for Protection from

Abuse filed by her on behalf of M, , were thoroughly vetted at a hearing on the petition

on June 16, 2014. The Court dismissed the Petition after a hearing on June 26, 20:14.

The facts alleged in the June, 2014 were again considered by the Court al the time of trial

and noted within this Court's Findings of Fact numbered 79 and 80. The Court concluded, as it

did in June 2014, that the evidence presented failed to prove that a Protection from Abuse Order

was warranted.

The Court considered Mother's testimony and the testimony of Mother's witness, A. W,;

regarding safety concerns regarding Father's current paramour, P. D, and Ms.

D, 's daughter, J, . Ms. W. is Father's former paramour and the Mother of his third

child, T. (DOB: 1/26/12).

Mother and Ms. W, testified that they were concerned that neither Ms. D, nor her

daughter spoke the English language very well and they further expressed concern regarding the

impact that a language barrier could have in the event of an emergency if they Children were

alone with them. The Court did not find Mother's or Ms. W. expressed apprehension

rational for the following reasons:

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L There was no testimony regarding the Children being left alone with either Ms. D.,

or her daughter for any significant period of lime;

2. Ms. D, credibly testified that she is in the United States to follow up with

additional research after she obtained a Masters Degree in China;

3. Ms. D, 'estified that she is pursuing her education and that she "talks to (her] boss

in English."

4. There was no testimony that would.prove that Ms. D, could not adequately handle

an emergency situation if she was alone with the Children.

5. Father credibly testified that "I think P, speaks English well enough. She is a

nurse and has an education background. She would be able to call 911 and say there

is a problem." (TT August 26, 2014 (sic)2, Page 151,. Lines 20-23.)

6. The Court will further note that although her English was broken and she showed

some signs of struggle with the recognition of certain words, Ms. P, was able to

communicate her testimony to the Court and respond to questions by counsel without

the use of an interpreter .

. In light of the above-listed reasons, the Court finds that the testimony of Mother and Ms.

W, were mere speculation.

In further contemplation of this factor, the Court considered the testimony of M.

In response to an open-ended question from counsel for Mother, she testified that" ... I really

don't want anymore time with my dad because he hurts me, and he hurts my feelings

emotionally and physically and T want that to stop. And it hasn't." (IT August 29, 2014, Page

2
The title of lhe transcript filed by Courter Report, Mark Corbin, on October 7, 2014 "PROCEEDING: Custody
DATE: August 26, 2014" was titled such in error. The first day of trial, as transcribed within the same, was
conducted on August 27, 2014, not August 26, 2014.

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280, Lines 5-8.)) The Court asked M. "[d]o you think you are spending the right amount

of time with your dad now?" M. responded "[yjeah I do. I really don't want anymore

time with him at all. I mean, I have trouble with the time I have right now. So unless people

want to put more stress on me then I don't know why I would want to have more time with him

unless you want to put more stress on me." (IT August 29, 2014, Page 282, Lines 18-25).

(M,'s preference will be further discussed below in the discussion of Custody Factor 7.)

The Court did not find M, ' S testimony to be credible or logical. First, the Court

notes that ifthere was concern about alleged physical harm, the Court wonders why a reduction

of custody or no custodial time at all for Father was not requested. Moreover, the Court believed

that the use of the word "stress" was either directly or indirectly coached as Mother used it in her

testimony regarding the Children and their relationship with Father: " ... 1 would have to say the

relationship that M. and her father have had has produced a lot more anxiety and a lot

more stress for M. " (TI August 28, 2014, Page 1361 Lines 6-9.)

No credible evidence was presented at trial regarding any physical injuries to M.

Section 5328(a)(3): The parenml duties performed by each party on behalf of the

children.

The Court found that Mother performs more parental duties than Father as a result of her

position as primary physical custodian of the Children. The Court found, however, that Father is

capable of performing more parental duties for the Children if his custodial time is increased,

The Court found that Mother is more involved in helping the Children with their

homework, registering them for extracurricular activities, purchasing school supplies, and

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handling the Children's doctor and dentist appointments. Father credibly testified, however, that

he is willing to be more involved if his custody time is increased.

Recognizing Mother's role the Court fashioned a custody plan that has the Children with

her on three of five school nights each week. Moreover, the Court's Order continues to provide

Mother with more custodial days than Father.

Section 5328(a)(4): The need for stability and continuity in the children's education,

family life and community life.

The Court thoroughly evaluated credible evidence regarding Custody Factor 4 and

properly found that the need for stability and continuity in the Children's lives can be

appropriately balanced with their need to develop a healthier relationship with their Father.

The Court heard no compelling testimony that the Children's education or extracurricular

activities would be interrupted if Father were to be given additional custodial time.

The Court did consider Mother's credible testimony that she is concerned with Father's

life choices regarding his choice of paramours and the number of paramours he has had over the

last few years. The Court notes that Father is a young man who must balance his social life with

the demands of fatherhood and he might not have always acted perfectly.

The Court also considered Mother's choice of paramour in her tiance S. L.

Mr. L. testified about his criminal history at the hearing. He testified that he

pleaded guilty to two DUI charges, one in 2004 and one in 2010. (TT August 29, 2014, Page

193, Lines 24-25 and Page 194, Line 1.)

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Mr. L., \; Fayette County Court of Common Pleas Court Summary was introduced

as Father's Exhibit 13, which is the Fayette County criminal docket report. The report indicates

that Mr. L. was charged with Patronizing Prostitutes, Title 18 Section 5902, and that the

charges were held for formal arraignment on September .18, 2014.

The Court found that family life might not be perfect in either Mother's or Father's

household. The Court further found that both parents are able lo provide the Children with

stability despite any imperfections in his or her domestic lives.

Section !5328{a)(5)~ The ayailabilitv of extended family:

The Court found the testimony of Paternal Grandmother to be compelling with regard to

Father's extended family. She credibly testified that she hoped that" ... [Father] getsshared

custody because the members of our blended D. / S, family, they work in fields of

medicine, law, politics, they are in engineering, in education, in technology, and finance. They

are entrepreneurs. They work for corporate America, they started their own businesses, they are

artists, they are stay-at-home mothers .... If [the Children] are allowed to join us, they have

opportunities just to go as high as they want." (TI August 28, 2014, Page 76, Lines 1-8 and 16-

18.)

The Court found that based on the credible testimony of Paternal Grandmother and with

her leadership, the Children have access through Father to an extended family.

The Court also found that Mother had an available extended family, although her

testimony on this subject was brief.

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The Court found that both parties have extended family available for the benefit of the

children.

Section 5328(a)(6): The children's sihling relationships.

The Court found that the Children have one (1) Paternal Half-Brother, T. W, The

Court found that the Children have no other known siblings.

Father credibly testified that the Children and T, get along very well. N, S.

credibly testified that the Children " ... are in Jove with T. ." (TT August 26,

2014 [sic], Page 183, Line 3.)

The Court found tliat the Children have a good relationship with T, , and that an

increase in Father's custody time would not change that relationship.

Section 5328(a)(7): The well-reasoned preference of the children, based on the

children's maturity and judgment.

This Custody Factor is addressed within the Court's response to Mother's Concise

Statemen l of Errors number 15.

The Court did not express bias or inappropriate discontent with the minor child testifying,
not did it limit counsel's examination of the child, nor did it arbitrarily conclude that the
winor child's preference was not well reasoned.
(Matter complained ofin Appeals #15)

The Court appropriately noted its concern regarding M, testifying at the trial.

While the Court's remarks on the record were unsolicited, they were not biased. Upon counsel

for Mother indicating that M, would be the next witness, the Court expressed its concern

that the experience of testifying would be traumatic for M , , The Court based its

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statement on the condition of M. at the time she testified at the June 2014 hearing on

Mother's Petition for a Protection from Abuse against Father. The Court noted for the record

that at that time M. appeared to the Court to be terrified. She was shaking from

nervousness, crying, and in tears. The Court relayed this to the parties and counsel.

The Court further noted that the Custody Law requires that it consider" ... the well-

reasoned preference of children." (TI August 29, 2014 Page 275, Lines 17-18.) The Court's

motivation was to protect the Child from undue trauma, and warned counsel to avoid

"inappropriate" questioning of the Child. (TT August 29, 2014, Page 275, Lines 24-25 and Page

276, Lines 1-2.)

With the cautionary notice to the parties, the Court directed that counsel proceed. It

should be noted that counsel for Motlier asked for the opportunity to talk with M. prior to

her entering the courtroom. The request was granted. No objection to the comments of the

Court was made. The issue is, therefore, waived.

Even though the issue is waived, the Court notes that counsel for Mother questioned

M,. Counsel for Father and the Court also asked questions. The Court did not cut off

questions at any point, as the Child appeared to be comfortable and no unsuitable testimony was

being solicited by counsel. The Court made no cautionary comments in Court in the presence of

M. . Counsel for Mother and counsel for Father were allowed to ask as many relevant

questions as they deemed necessary.

M, proceeded to testify:

Q (Mother's counsel); First, tell me how you feel about being here today sitting
in this court room? How do you feel about that?

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A (M, ): Honestly, I feel pretty good about it. I'm very ---1 pulled this
together and [ feel great. I feel very confident about myself and I'm really
happy to be here so I can speak. (TT August 29, 2014, Page 279, Lines 20-25
and Page 28(\ Line 1)

Q (Mother's counsel): What would you like to tell the Judge today?

A (M, :): I would like to tell him that I don't really want any more time
with my dad because he hurts me, and he hurts my feelings emotionally and
physically and I want that to stop. And it hasn't. (TI August 29, 2014, Page
280, Lines 5-8.)

The Court finds that M , responses of "happy" to be in Court and "I feel great"

were made in direct response to the cautionary comments of the Court even though she was not

present for them.

In response to questions from the Court M , testified:

Q (The Court): Does your dad go to your soccer games?

A (M. J No, not unless H's usually like --- not unless c-- he doesn't come
to my soccer games period except for when it's like before court or
something.

Q (The Court): How do you know it's before court?

A (M, .): Like sometimes I'll meet with maybe like K. [, Mother's
counsel.] or something because he will tell me like sometimes l have to testify
or something. (TT August 29, 2014, Page 282, Lines 2-7.)

The Court found it unlikely that M, would track Father's attendance at soccer

games in relation to upcoming court appearances. The Court further found it less than believable

that an eleven year old child who is involved in a soccer match would keep track of the

attendance of the non-custodial parent at the event and then tie it to an upcoming court

appearance without the assistance of an adult

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The Court found M, "s testimony to be coached or otherwise not well-reasoned. If

she is being physically hurt by Father the Court wonders why she would testify that she is

" ... comfortable with the time we have now .... " (TT August 29, 2014, Page 283, Lines 4-5.) The

testimony seems to the Court to be a specific response to the petition of Father. This Child

seems to have a high degree of knowledge about the ongoing custody dispute, which is troubling

to the Court.

The Court believes that M, 's statement regarding custody time with Father

indicates that she was aware of Father's specific request for shared physical custody and she was

furthermore aware of Mother's counter-proposal to maintain the status quo custody arrangement..

M. appeared to this Court to be specifically responding to Father's custody proposal and

parroting Mother's position regarding the same, and not responding in a natural manner.

In any event, the testimony of the Child was fully and completely considered by the

Court. The Court's finding in this regard was not, therefore, "arbitrary."

Section 5328(a)(8): The attempts of a party to turn the children against the other

party. except in cases ofdomestic violence where reasonable safety mea~ures are necessary

to protect the children from harm.

The Court found that Mother may have attempted to turn the Children against Father and

that Father has not made similar attempts.

The Court heard credible testimony from N. S . that Father never speaks

poorly of Mother. She testified that "[h]e doesn't even talk about her when the girls are present.

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Ifl say something, he will be like 'No, she is doing the best she can.' He is very, very

respectful." (TI August 26, 2014 (sic), Page 177, Lines 2-5.)

Father credibly testified that " ... the Children are in 'Mommy Mode"' when they enter his

custody. (TI August 26, 2014, (sic) Page 20, Lines 21·22.) He described "Mommy Mode" as

the Children not wanting to go with him with M, sometimes becoming belligerent.

Father further credibly testified that the Children usually relax after spending some time with

him.

Mother testified that she corrects the Children in public if they speak poorly of Father.

She did not, conversely, indicate that she corrects the Children if they speak poorly of Father in

private. Mother was asked on cross-exam "Does that mean, would you agreed then, that you did

not correct them, if they spoke disrespectfully abut their father in private?" (TI August 29, 2014,

Page 218, Lines 10-12.) Mother responded that "[she] used to correct them all the time but. .. "

(TT August 29, 2014, Page 218, Line 13.) The Court thereby concluded that Mother allows this

behavior to occur in private settings.

The Court found no credible evidence about Father attempting to turn the Children

against Mother was presented.

Section S328(a)(9): Which party is more likely to maintain a loving, stable,

consistent and nurturing relationship with the children adcguate for the children's

emotional needs.

The Court found that both parties are likely to maintain loving, stable, consistent and

nurturing relationships with the children adequate for their emotional needs.

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Paternal Grandmother credibly testified that "when [the Children] are with their daddy,

when I have seen them, they Jove their daddy, they want to hold his hand whenever they are

walking, they hug him, they sit on his lap, they want to sit next to him when we sit down al the

dinner table." (TT August 28, 2014, Page 65, Lines 2-8.)

N.A S. , Father's second cousin and house helper, testified regarding

her observations when Father has custody of the Children.

Her testimony is as follows:

Q (Counsel for Father): ... are the girls physical with K

A (N '\; Yes, they climb all over him all the time. And at least once every
time they get together, there is, I want to say, like a wrestling match thing that
happens. But it's all giggling for like 45 minutes, there is all this giggling."
(IT August 28, 2014, Page 37, Lines 14-20.)

Q (Counsel for Father); One last question. Have you seen [Father] and
M hug?

A C N, ): Yes, than very common. (TT August 28, 2014, Page 38, Lines 3-5 .)
Ms. S, testified regarding circumstances surrounding t11e Protection from

Abuse hearing that was held in the summer of 2014 and the attitude of the Children following

custody exchanges.

Q (Counsel for Mother): The kids always seem like they want to be there is your.
opinion'?

A (N. ): No. Do you remember I also had said that when the kids first get
there they are grumpy, it takes a while to get past the whole custody exchange.
And there are times that, there was one time before the whole PFA thing that
M. 'laid she didn't want to be there, but then half an hour later she was
playing, happy in the pool, laughing and joking around. ( TT August 28, 2014
Page 50, Lines 1-10.)

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The Court found Ms. S. ' s testimony to be credible.

Father presented no evidence that would prove that Mother was not likely to provide for

the emotional needs as contemplated in Custody Factor 9. Based upon Mother's credible

testimony, the Court finds that Mother does, indeed, meet those needs.

Father presented substantial credible evidence that he would do so as well, The Court

refers to Findings of Fact numbered 145 through 155.

Section 5328(a)(10): Which party is more likely to attend to the daily phvsical,

emotional, developmental, educational and special needs of the children.

The Court found that Mother and Father are equally likely to attend to the daily physical,

emotional and special needs of the Children. While the Court found that Father had not been

"hands on" with the educational needs of the Children, the Court also found that he credibly

testified that he is willing to be more involved in it.

Mother credibly testified Father is "scatterbrained" and that she is very organized and

that she "spoon feeds [Father in order for him] to be a success ... " (TI August 28, 2014, Page

166, Lines 10·12.) The Court found that Mother is more organized than Father. The Court also

found that Father credibly testified that he is making an effort to be more organized regarding

school uniforms, doctor and dentist appointments and homework.

Section 5328(a)(U): The proximity of the residences of the parties.

The Court found that the proximity of the residences of the parties was not an issue is this

case.

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Section 532$(aj_(l2): ]ach party's availabilitv to care for the children or ability to

make appropriate child~care arrangements.

The parties did not present significant conflicting evidence regarding this custody factor.

The Court found that both parties would be available to care for the Children or be able to make

appropriate child-care arrangements if Father's custodial time was increased.

Section 5328(a)(13): The level of conflict between the parties and the willingness

and ability of the garties to cooperate 'IVith one another. A part.Y's effort to protect

children from abuse by another party is not evidence of unwillingness to cooperate wit}!

1hat partL
Court found that the level of conflict between the parties is high, and that they have a very

difficult time communicating and cooperating with one another. The evidence as detailed in

Paragraphs 189 through 197 in this Court's Findings of Fact of September 16, 2014 clearly

substantiates the Court's conclusion. The Court further found that the parties' inability to

communicate effectively is the root cause of their difficulties concerning the extracurricular

activities of the Children.

In light of its findings the Court ordered that co-parenting counseling with Dr. Bob

Wilson would continue. The Court also ordered that the parties will take all custody disputes

that do not relate to the physical custody schedule or to legal custody to Dr. Wilson before

bringing the dispute to Court.

~ection 5328(a)(14): The history of drug or alcohol abuse of a party or member of a

party's household.

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The Court found that neither party presented evidence of drug or alcohol abuse of a party

or member of a party's household.

There was evidence that Mother's paramour, J. L. , who stays with Mother and

the Children approximately ten (10) days per month, pleaded guilty to two (2) counts of DUI.

He further testified that he is not an alcoholic.

The Court considered Mother's paramour's convictions, but found that he does not pose a

threat of harm to the Children.

Section 5329(a)(l5): The mental and physical condition ofa party or memher of a

wrty's household.

No evidence was prose rited regarding the mental or physical condition of a party or

member of a party's household.

Section 5328(a)(16): Any other relevant factor.

The Court found that the best interest of the Children had been fully considered with the

application of Custody Factors 1 though 15.

The Court was not biased in favor of Father, nor was the Court biased against Moth~r.
(Matter complained of in Appeal #19)

Mother's allegations of bias by the Court are baseless. There is not one scintilla of

evidence in the record that the Court exercised its decision-making power with partiality toward

Father and bias against Mother. The Court made its decision based on the testimony and other

evidence presented by the parties at the three (3) day hearing. The evidence clearly shows that
 Circulated 05/14/2015 11:45 AM

Father's custodial time should be increased form eight (8) days per four (4) week period to

twelve (12) days per four (4) week period.

The Court appropriately found Father in Contempt of Court for not adhering to the
CustorJ! schedule for the summer of 2014. The Court conseguently imposed a reasonable
sanction on Father by ordering that Mother with priority of vacation dates in 2015.
(Matters complained of in Appeal #20)
Regarding the Court's finding that Father was more likely to permit frequent and

continuous contact, the Court found that the contempt focused on one issue relating to vacation

time in 2014. The Court found that the vacation issue was not tied to the issue of contact

between the parents and the Children.

Regarding the issue of counsel fees, the Court found that Father extended his vacation in

the summer of 2014 in violation of the intent of the August 29, 1011 Custody Order of Court,

which provided that"[ e]ach parent shall have two (2) non-consecutive weeks of summer

vacation with the Children." Father violated the Order by "tacking" vacation days onto his

regular partial custody days. The result was that he bad on ten (10) day vacation and one (1)

eight (8) day vacation with the Children.

The Court agreed with Mother's interpretation that "two (2) non-consecutive weeks"

means two (2) non-consecutive seven (7) day periods. The Court notes, however, that the

Custody Order was not explicit in that regard, and found that Father interpreted the Agreement to

support his actions. The Court did not, therefore, find Father's conduct to be obdurate, vexatious

or dilatory to support a sanction of counsel fees. Father was instead sanctioned by granting

Mother first vacation choice for 2015.

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The sanction was appropriate as it was one that Mother requested. Mother state" ... I

would ask that l would have consideration from the Court that I would have first choice on

vacation times for 2015." (TI August 28, 2014, Page 173, Lines 19-22.)

For the foregoing reasons, this Court September 16, 2014 Order of Court should be

affirmed.

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PROOF OF SERVICE

1 hereby certify that on this 8111 day of December 20 I 4, I a true and correct copy of the

within Brief of Appellant and Reproduced Service. and this Proof of Service was served upon the

persons and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P.

906 via first class mail, postage prepaid to tile following:

The Honorable Donald Walko
Family Court Facility
440 Ross Street, 1st Floor
Pittsburgh, PA 15219
Court of Common Pleas Trial Judge

Sally A. Thomas, Esquire
310 Grant Street
Suite 1125 Grant Building
Pittsburgh, Pa 15219-2302
Attorneyfor Defendant

HOLMES LAW GROUP, LLC

It~ Counsel for Appellant. L. D.