J-S38001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.W.J., II IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
A.S.P.
No. 55 MDA 2015
Appeal from the Order Entered on December 29, 2014
In the Court of Common Pleas of Susquehanna County
Civil Division at No.: 2008-14 C.P.
BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED JULY 14, 2015
A.S.P. (“Mother”) appeals the December 29, 2014 order that granted
primary custody of the parties’ three minor children to J.W.J., II (“Father”).
We affirm.
Mother and Father married in July 2001. They have three minor sons:
J.J.J., born in December 2000; T.M.J., born in March 2003; and L.W.J., born
in July 2005. On January 7, 2008, Father filed a complaint in divorce. On
May 29, 2008, the parties entered a stipulated custody order in which Father
had primary physical custody and Mother had partial physical custody. At
that time, the parties anticipated that Mother was going to move to Utah.
On June 2, 2009, Father filed a petition for special relief seeking to suspend
Mother’s partial custody because she had not complied with certain
conditions that were part of the stipulated order, such as providing Father
with her current address in Utah and photographs of her residence in Utah.
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Mother did not appear at the hearing on Father’s petition, and, on July 7,
2009, the trial court entered an order suspending Mother’s partial custody
and providing Mother with supervised visitation. On February 28, 2012, the
trial court issued a divorce decree.
On February 25, 2014, Mother filed a petition for special relief in which
she alleged that Father, who had primary custody, was neglecting the
children. Mother sought a modification of custody and immediate temporary
custody of the children pending a hearing. On the same date, Mother filed a
petition for relocation.
On February 25, 2014, the trial court granted Mother’s petition for
special relief on the condition that the children be placed with B.P.
(“Maternal Grandmother”).1 Maternal Grandmother lived close to Father’s
house; Mother continued to live in Utah.
The trial court held hearings on the matter on April 21, 2014; July 14,
2014; September 12, 2014; and December 12, 2014. The court took
testimony from both parents; all four grandparents; the children’s step-
brother and his mother; J.J.J. and T.M.J.; Mother’s fiancé; Mother’s expert
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1
On March 3, 2014, Father filed a petition to vacate the February 25,
2014 order. He alleged that he had not received notice of the petitions.
Further, Father’s counsel alleged that he was in court on February 25, but
that Mother’s counsel did not inform him of her intent to present the
petitions and waited for Father’s counsel to leave the courtroom before
presenting the petitions to the court. Mother’s counsel denied these
allegations. The trial court denied Father’s motion.
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witness Vincent Carolan; Nichole Welmon, a home study investigator; and a
parent who participates in scouting with the children. Following those
hearings, the trial court made the following findings of fact:
For about seven (7) years Father has been the primary caregiver
of the three sons as Mother had removed herself from the family
home . . . first to Honesdale, Pa. for a short period and then to
the area of Layton, Utah. She has had no physical contact with
the boys until early 2014. However, she has maintained some
measure of telephone communications with the boys,
substantially more in the past couple of years than before.
[Mother] would have us find credible that she could not afford to
either move back to the Susquehanna County area and/or she
had no financial means to return for partial custody and
visitation with the boys in Susquehanna County. Moreover, on a
support order that began as six hundred dollars ($600) per
month child support, later modified to five hundred dollars
($500) per month child support, she is in arrears in an amount
in excess of nineteen thousand dollars ($19,000).
She now works for her paramour about twenty hours per week
as a bookkeeper/dispatcher for his owner-operator trucking
business. As such she is solely dependent on him for
employment and generally for food and shelter.
Mother has told the children of wonderful things about the area
of Utah in which she resides such as skiing opportunities and
other recreational pursuits.
[The trial court] interviewed the sons and find their preferences
as to whom to live with to be not compelling.
[The trial court] also note[d] that a home study of each
household has been conducted . . . .
Father, by order of 2009, has been the sole legal custodian of
the children as well as the primary [physical] custodian of the
children. Largely by his efforts and that of the maternal
grandmother who lives next [door] to the boys, their needs have
been met.
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Father as a cub scout and boy scout leader has had all three
sons in a scouting program, although [J.J.J.] does not attend
now pursuant to his wishes which Father has honored.
Although Father’s mother lived with him for a couple of years
and a girlfriend, Kelley[,] lived with him for several months,
Father generally lived alone with the three sons until the court
allowed for a change of physical custody of the boys to the
maternal grandmother’s home next door. At the time of the
transfer[,] Father was neither allowed to communicate with the
boys nor see them for a couple of months which resulted in his
filing of petitions and the court restoring those parental rights to
him.
Noteworthy is the fact that upon the temporary transfer of
physical custody[,] Mother took two weeks to return to the area
to be with the boys and now goes back and forth to Utah on a
regular basis to address her employment duties with her
[fiancé].
A complaint of [] Mother was the fact that the boys had to do
some household chores such as laundry, cleaning, dishes,
making their own breakfast, etcetera. [The trial court]
determined that the amount of chores was not onerous to any of
the children, but on the contrary[,] was instilling in them life
skills and good work habits.
[T.M.J.] had some mental health and emotional problems which
[Father] addressed through ongoing mental health counseling.
[T.M.J.] has progressed and no longer has emotional difficulties
to the degree he once experienced.
For some time the older son, [J.J.J.], had to watch the two
younger sons because of [Father’s] work schedule. This
sometimes proved quite challenging for [J.J.J.] and he voiced
that concern to [Father]. This overseeing could not have
occurred for too long because either the paternal grandmother
and/or Kelley resided within Father’s household.[2]
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2
The record reflects that, after Mother moved, the maternal
grandmother assisted with the children when Father was at work. In
September 2011, due to a flood, the paternal grandmother moved in with
Father and also assisted with the children until she moved out in May 2013.
(Footnote Continued Next Page)
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To lessen the child caring duties of [J.J.J.] for substantial periods
of time Father has offered to the court that his mother and
father who both live within about half an hour away could help
him with the boys. The court firmly believed this extra adult
help would be a better practice than having [J.J.J.] watch the
two younger sons.
Generally Father or Father and/or maternal grandmother have
seen to it that the children have attended health[-]related
appointments.
Father has been the parent to attend the children’s Individual
Educational Program (IEP) meetings as well as parent teacher
conferences and other school functions.
. . . [O]f all the family members on both sides only Mother lives
in Utah. The balance of the families on both sides live in the
vicinity of Susquehanna County.
* * *
[Mother] over the past approximately seven years has had no
physical contact with the children and only a normal amount of
telephone contact with them until February – March 2014 when
they physically began living at grandmother[’]s. Before then
Father had daily care of the children coupled with maternal
grandmother’s assistance in his work[-]related absences. [The
trial court] note[d] however he always returned to the home at
late afternoon or early evening dependent on his work schedule.
He engaged the boys in scouting and other activities and
attended school related functions.
The boys have an adult step[-]brother, [Father’s son,] in the
area who has an excellent relationship with them, and is often in
their presence.
_______________________
(Footnote Continued)
In 2013, Father and the maternal grandmother had a falling out and she no
longer watched the children while Father worked. Father’s girlfriend, Kelley,
moved into Father’s house and assisted with the children for about a year
before she moved out in December 2013. Therefore, the only time J.J.J.
would have had to supervise the younger children was between Kelley
leaving the home in December 2013 and when custody was transferred to
Mother and the maternal grandmother in February 2014.
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The children range in age from nine to fourteen, and relocation
would have the effect of uprooting them from their father, step[-
]brother, grandparents and other family members on both sides.
They would have to leave their school and all of their school
friends.
Given the parents live 2000 miles apart the boy[s’] relationship
with their primary caregiver, Father, would change drastically,
and could not be meaningfully preserved.
The boys expressed their preferences as to where to live in
accordance with promises made by [Mother] which [the trial
court] glean[ed] from her and the home study investigator, Ms.
Nichole Welmon.
We do not find it credible that Father obstructed Mother’s . . .
relationship with the boys. Basically, she abandoned the
children by moving nearly 2100 miles away, never coming back
East to see them. She never filed any petition with this court
seeking partial custody of these children or enforcement thereof.
The financial situation of Mother and therefore of the subject
children is tenuous at best. She is dependent upon her
paramour, not only for a roof over hear head, food on her table,
but also for her part[-]time employment. If that relationship
would end she would generally be destitute.
Father, on the other hand, has been a member of the Heat and
Frost Insulators and Asbestos Workers Union Local #38 for
several years. Occasionally, he draws unemployment
compensation but generally supports the children despite
[Mother] being in arrears on her child support obligation for
thirty[-]six plus months.
We do not discern any credible evidence that abuse has occurred
in the households of [either] parents.
We find the emotional benefit to the children is greater if they
remain in the area with their father, extended family including
grandparents and their step[-]brother. We find it . . . very iffy
as to granting relocation removing them from all the community
they really have known.
We find that both parties are likely to encourage and permit
frequent and continuing contact with the children. In that regard
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[Mother] can easily put aside her part-time employment and
return to Susquehanna County to visit the children.
The [children’s] stability is well[-]established in Susquehanna
County by their being here exclusively with their father for
several years, as well as being with grandparents and attending
school here.
Both Father and Mother have a loving relationship with the
[children]. However[,] Father has provided for their care nearly
exclusively for several years. He is not to a discernable degree
dependent [] on another to provide financially for the [children].
Trial Court Opinion and Order (“T.C.O.”), 12/29/2014, at 1-5 (unnumbered).
On December 29, 2014, the trial court issued its order and opinion,
which granted Father primary physical custody and granted Mother partial
physical custody. On January 6, 2015, Mother filed a notice of appeal.
Mother did not designate the appeal as a Children’s Fast Track Appeal. Nor
did Mother file a concise statement of errors complained of on appeal
contemporaneously with her notice of appeal, as is required by Pa.R.A.P.
1925(a)(2)(i). However, we may excuse the failure to file a concise
statement at the same time as the notice of appeal. See In re K.T.E.L.,
983 A.2d 745 (Pa. Super. 2009).
On March 2, 2015, this Court issued an order designating the case as a
Children’s Fast Track case and ordering Mother to file a concise statement
with the trial court and with this Court, and to serve the concise statement
on the trial judge and Father by March 12, 2015. The order also warned
that failure to comply with the order would result in waiver. Mother filed a
concise statement with the trial court on March 12, 2015, and with this
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Court on March 17, 2015.3 The trial court did not file a Pa.R.A.P. 1925(a)
opinion, instead relying upon the opinion filed with its December 29 order.
Mother raises the following issue for our review: “[W]hether or not the
lower court erred by abusing its discretion in awarding custody of the subject
[children] to [Father] as the lower court’s ruling was contrary to the weight
and sufficiency of the evidence and did not adequately consider[] the sixteen
(16) best interest factors set forth in 23 Pa.C.S.A. § 5328(a)[?]” Mother’s
Brief at 3.
Father argues that Mother has waived her right to review by failing to
comply with various Rules of Appellate Procedure. Specifically, Father points
out Mother’s failure to file a concise statement with her notice of appeal, her
failure to address the concise statement issue in her brief, and her failure to
identify the case as a Fast Track case. Father also cites her failure to follow
rules related to filing a reproduced record and failure to cite to the
reproduced record in her brief. Father’s Brief at 9-11.
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3
Mother filed her concise statement after the trial court transmitted its
certified record to this Court and the copy that Mother filed with this Court
did not contain a certificate of service. Because failure to comply with our
order with regard to service upon the trial court would have resulted in
waiver, see Mudge v. Mudge, 6 A.3d 1031, 1032 (Pa. Super. 2010), we
had to seek a supplemental certified record to ensure that Mother had
complied and we could reach the merits of her issues on appeal. This, in
addition to Mother’s failure to designate this as a Fast Track case, has
caused a delay in the resolution of this case. We advise Mother’s counsel to
ensure compliance with the Rules of Appellate Procedure in future appeals.
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We agree with Father that Mother did not comply with all the Rules of
Appellate Procedure. Mother’s lack of compliance certainly delayed the
review of this case. However, we consistently have held that, when the
failure to comply does not impede our ability to review the issues, we will
address the merits. See Phillips v. Selig, 959 A.2d 420, 428 (Pa. Super.
2008). Here, our review, while delayed, has not been impeded substantially
by Mother’s missteps.
Although Mother presents one question on appeal, she actually raises
two issues: failure to consider all of the statutory factors and failure to weigh
those factors appropriately. We first must address the allegation that the
trial court failed to consider all of the factors, an issue that Mother preserved
in her concise statement. See Statement of Errors Complained of on
Appeal, 3/12/2015, at ¶ 4.
In awarding custody, the trial court must consider the following factors
in determining the children’s best interests:
(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.
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(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.
(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).
We have held that the failure to consider all of the factors is reversible
error. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). “[T]here is no
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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). Notably, in that case, the trial court did discuss each factor.
We also have stated that “a court cannot merely recite the § 5328(a) factors
and state it considered them generally.” S.W.D. v. S.A.R., 96 A.3d 396,
407 (Pa. Super. 2014).
Here, the trial court made various findings of fact, in no particular
order, that correlate to most, but not all, of the factors. See T.C.O. at 1-5.
Then, the trial court stated that it “considered those factors [the trial court]
believe[d] relevant at 23 Pa.C.S.A. § 5328.” Id. at 6.
Specifically, the trial court’s opinion offers no findings related to
subsection 5328(a)(14) (“[t]he history of drug or alcohol abuse of a party or
member of a party’s household”) or (15) (“[t]he mental and physical
condition of a party or member of a party’s household”). We previously
have remanded when a trial court failed to consider these same two factors.
See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013). However, in
A.M.S., instead of merely remanding the case for further fact-finding, we
explicitly remanded the case for further proceedings to give the trial court
the opportunity to develop a record pertaining to the history of drug or
alcohol abuse and the mental and physical condition of the members of the
mother’s household. Id. The instructions upon remand indicated that the
evidence simply did not exist in the record.
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Here, however, there was ample evidence for the trial court to
consider. Mother testified that she had a prior conviction for possession of
drug paraphernalia, but had no drug or alcohol problems. Notes of
Testimony (“N.T.”), 7/14/2014, at 83-84. Mother’s expert, Vincent L.
Carolan, testified that, during his evaluation process, he became aware of
instances in which Father was intoxicated.4 N.T., 9/12/2014, at 54. Father
admitted to having an occasional drink, but stated that his employment is
subject to drug and alcohol testing.5 N.T., 12/12/2014, at 76-77.
Mother testified that she had no mental or physical conditions that
would interfere with exercising custody. N.T., 7/14/2014, at 85. Mother’s
fiancé testified that he smoked, but had no mental or physical conditions
that would prevent him from caring for the children. N.T., 9/12/2014, at 22,
24. Mr. Carolan testified that his evaluation uncovered no mental health
issues for the parties, Mother’s fiancé, or the children’s grandparents. Id. at
51, 53, 54-55.
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4
Although Mr. Carolan did not explain this comment in his testimony,
his report, which was admitted into evidence, states that Father admitted to
two occasions in which he was intoxicated. Exh. P-8 at 4. However, Mr.
Carolan concluded that Father’s “screening and clinical evaluation scores do
not reveal an issue with alcohol or other drugs that impairs [Father’s] ability
to work, function or parent his three boys.” Id.
5
Mother alleged that Father had a problem with alcohol. Mother’s Brief
at 16. However, Mother does not cite any support for her contention that
Father had an alcohol problem. Other than Father’s admission to an
occasional drink and Mr. Carolan’s reference to Father’s intoxication, we find
no support in the record to suggest a problem with alcohol.
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This testimony distinguishes this case from A.M.S. There was a
factual record before the trial court here from which that court could have
considered subsections (14) and (15). Indeed, here, the trial court easily
could have concluded that there were no issues related to section
5328(a)(14) or (15) that were relevant to the custody decision. Thus,
A.M.S. is distinguishable, and does not mandate reversal. It cannot be
gainsaid that the trial court should have stated in its opinion that it made
such a finding. Nonetheless, because the evidence of record was clear,
because the trial court stated it considered all the factors, and because a
remand would further delay finality for these children, we find that the
outcome could not have changed had the trial court made specific findings,
and that a remand would serve no legitimate purpose.
Mother’s remaining argument is that the trial court misweighed the
evidence. Mother complains that the trial court did not credit her testimony,
did not find that Father neglected the children, did not determine that Utah
would be better for the children, did not credit her expert’s testimony that
the children should be permitted to move to Utah, and failed to consider the
children’s preferences. Mother’s Brief at 11-25.
In an appeal of a child custody order, we review the trial court’s
decision for an abuse of discretion. D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.
Super. 2014). When the trial court’s findings are supported by competent
evidence of record, we are bound to accept those findings. Id. Further, we
must defer to the trial court with regard to credibility and weight of the
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evidence. Id. “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.” Id.
Here, Mother essentially asks us to reweigh the evidence and find that
the testimony and evidence that she presented was more credible than that
presented by Father. That is exactly what we are not permitted to do by our
standard of review. We have reviewed the record thoroughly and can find
no error of law. The trial court’s findings and conclusions were supported by
the record. Therefore, we affirm the trial court’s custody order.
Finally, Father requests an award of counsel fees and costs pursuant to
Rule of Appellate Procedure 2744. Father’s Brief at 11-12. That rule allows
for an award of counsel fees when “an appeal is frivolous or taken solely for
delay or that the conduct of the participant against whom costs are to be
imposed is dilatory, obdurate or vexatious.” Pa.R.A.P. 2744. Father argues
that Mother’s failure to follow the rules unduly delayed the appeal and was
dilatory. Father’s Brief at 11. While Mother’s failure to label her appeal as a
Fast Track case and to file a timely concise statement undoubtedly delayed
the disposition, we cannot conclude that Mother did so solely to delay the
outcome or that these procedural missteps constitute dilatory, obdurate or
vexatious conduct. Therefore, we decline to award Father counsel fees.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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