J-A10031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.T.H., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
H.H., n/k/a H.W.,
Appellant No. 1960 MDA 2014
Appeal from the Order entered July 28, 2014,
in the Court of Common Pleas of Lancaster County,
Civil Division, at No(s): CI-13-06575
BEFORE: GANTMAN, P.J., MUNDY, and JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 19, 2015
H.H., n/k/a H.W. (“Mother”), appeals from the custody order dated
July 25, 2014, and entered on July 28, 2014, that awarded J.T.H. (“Father”)
and Mother shared legal and physical custody of their minor male child,
M.E.H., (born in July of 2001), and their minor female child, C.M.H., (born in
December of 2004) (collectively, “the Children”). Upon careful review, we
remand.
We summarize the factual and procedural history of this case as
follows. Mother and Father are the natural parents of the Children. Mother
and Father divorced in 2011. Mother is currently married to J.W., the
Children’s stepfather (“Stepfather”), with whom she recently had a son, S.W.
(“Half-Brother”), in April of 2014. Mother lives in a six-bedroom house in
Strasburg, Pennsylvania, with the Children, Stepfather, Half-Brother, the
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Children’s paternal uncle, and the Children’s maternal grandmother. Prior to
giving birth to Half-Brother, Mother worked as a server at Red Lobster, but is
now a stay at home caretaker.
Father is currently married to F.H., the Children’s stepmother
(“Stepmother”). Father lives in a three-bedroom townhouse in Lancaster,
Pennsylvania, with the Children, Stepmother, and Stepmother’s children.
Father works as a certified nurse’s aide from 3:00 p.m. to 11:00 p.m. with a
two-week rotating work schedule. Based on his work schedule, Father is off
on Sunday, works Monday through Thursday, is off on Friday, works
Saturday through Monday, is off on Tuesday, works Wednesday through
Friday, and is off on Saturday.
On June 28, 2013, Father filed an initial pro se complaint in custody,
seeking primary physical custody of the Children. Thereafter, the parties
submitted their criminal history affidavits. Mother indicated that Stepfather
committed an enumerated offense. Consequently, the trial court conducted
a risk of harm hearing on August 5, 2013. After the risk of harm hearing,
the trial court found Stepfather was not a risk of harm to the Children.
The matter proceeded to trial because the parties could not reach an
agreement on the issue of custody at the custody conciliation conference
held on August 28, 2013. Prior to trial, the custody conciliator entered a
temporary custody order on September 10, 2013, granting primary physical
custody to Mother and partial physical custody to Father. The trial court
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held a custody hearing on October 21, 2013. On November 7, 2013, the
trial court entered a final custody order, awarding both parties shared legal
and physical custody of the Children on a two-week rotating basis in order to
accommodate Father’s work schedule so he could maximize his custodial
time with the Children on the days he has off. The two-week rotating basis
was as follows:
Week One- Monday from after school to Thursday at 5:00 p.m.
with Mother;
Thursday at 5:00 p.m. to Friday at 8:00 p.m. with Father;
Friday at 8:00 p.m. to Monday at 5:00 p.m. with Mother.
Week Two- Monday at 5:00 p.m. to Wednesday before school
with Father;
Wednesday after school to Friday at 5:00 p.m. with
Mother;
Friday at 5:00 p.m. to Monday before school with Father.
Trial Court Opinion, 11/7/13, at 6. The trial court ordered “Week One” to
begin on Monday, November 11, 2013.
On April 11, 2014, Mother filed a petition to modify custody, seeking
primary physical custody. On June 3, 2014, the parties attended a custody
conciliation conference with the Children. On June 17, 2014, the custody
conciliator issued a temporary custody order, granting primary physical
custody to Mother and partial physical custody to Father on a similar,
simplified two-week rotating basis.
On July 11, 2014, Father appeared pro se and Mother appeared with
counsel at a custody hearing. At the custody hearing, the trial court heard
the testimony of the Children, Father, Mother, the Children’s maternal uncle,
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and the Children’s maternal aunt. By opinion and order entered July 28,
2014, the trial court awarded the parties shared legal and physical custody
of the Children, on a two-week rotating basis and ordered co-parent
counseling. The trial court ordered the two-week rotating basis to give
Father custody of the Children on his days off during his two-week schedule
as follows:
Week One- Father shall have custody of the Children from after
school on the Tuesday he has off from work until Monday after
school.
Week Two- Mother shall have custody of the Children from after
school on Monday until the Tuesday of Week One after school.
Trial Court Opinion, 7/28/15, at 8.1
On August 28, 2014, Mother filed a notice of appeal, which this Court
quashed as untimely filed on October 9, 2014. On October 20, 2014, Mother
filed a petition to appeal nunc pro tunc from the custody order of July 28,
2014. The trial court entered an order on November 13, 2014, granting
Mother’s petition to appeal nunc pro tunc. On November 19, 2014, Mother
filed a notice of appeal nunc pro tunc, along with a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother presents the following issues for our review:
1. Did the [t]rial [c]ourt err in that it did not give adequate
consideration to the well-reasoned preference of the [C]hildren
to maintain Father’s every other weekend custody schedule?
1
The trial court’s order and opinion specified further custody details
including custody start times and holiday and vacation schedules, which we
need not reproduce here.
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2. Did the [t]rial [c]ourt err in its determination that a shared
custody schedule is appropriate where Father is not available for
three of the six days during his period of custody and Mother is
not working?
3. Did the [t]rial [c]ourt err in its determination that a shared
custody schedule is appropriate when Father does not encourage
and permit [ ] continued contact between the [C]hildren and
Mother during his periods of custody?
4. Did the [t]rial [c]ourt err in that it did not give adequate
consideration to the strong relationship that the [C]hildren share
with [Half-Brother] in Mother’s home?
5. Did the [t]rial [c]ourt err in its determination that a shared
custody schedule was appropriate when Father is not flexible
with Mother when it comes to issues of co-parenting?
Mother’s Brief at 14.
Since the hearing in this matter took place in July 2014, the Child
Custody Act (“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) (the Act applies to custody
evidentiary proceedings which commence on or after the effective date of
the Act, January 24, 2011).
In custody modification 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,
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or are unreasonable in light of the sustainable findings of the
trial court.
Id. at 443 (citation omitted).
We have stated:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).
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 5323 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
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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.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323.
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) of the Act sets forth the sixteen best interest
factors that the trial court must consider. See 23 Pa.C.S. § 5328(a); see
also E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).2
Mother filed a petition to modify, seeking a determination of primary
physical custody where the parties previously had exercised shared physical
custody. In its opinion that accompanied its order, the trial court stated, “In
consideration of the relevant factors set forth in 23 Pa.C.S. § 5328(a) as
they relate to the Children’s best interests in this case, the Court finds. . . .”
2
We note that, effective January 1, 2014, the legislature amended the Act
to include an additional factor that provided for consideration of child abuse
and involvement with child protective services. See 23 Pa.C.S. §
5328(a)(2.1).
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See Trial Court Opinion, 7/28/14, at 5. The trial court then listed eight
matters that it considered, without indicating the specific factor of section
5328(a) to which each paragraph related. In its order entered on July 28,
2014, the trial court awarded shared legal custody and shared physical
custody on a two-week rotating basis.
Mother’s challenges on appeal relate to whether the trial court
committed an abuse of its discretion in continuing shared physical custody
instead of granting the modification petition to award her primary physical
custody. See Mother’s Brief, at 17. In her first and second issues, Mother
contends that the trial court inadequately considered section 5328(a)(7) and
section 5328(a)(12) in its opinion. See id. at 18-22. In her third, fourth,
and fifth issues, Mother complains that the trial court failed to address
sections 5328(a)(1), (6), and (13), respectively. See id. at 23-29.
In S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014), a father filed a
petition for specific relief requesting the trial court to ratify an informal
change to the custody schedule that the parties were following. This Court
reasoned that the father requested a modification of physical custody. The
panel stated:
This compelled the trial court to decide which physical custody
arrangement was in Child’s best interest, squarely implicating an
award of a form of custody under 23 Pa.C.S.[] § 5323(a).
Therefore, the trial court was required to consider all the
§ 5328(a) best interest factors. Even if the trial court only
reaffirmed its prior order, it nonetheless was ruling upon a
request to change the form of physical custody and, therefore,
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bound to decide whether the prior order remained in Child’s best
interest.
S.W.D., 96 A.3d at 406. The panel vacated the portion of the order
concerning the change to physical custody, and remanded the matter for
preparation of an opinion and order specifically addressing all of the factors
under 23 Pa.C.S. § 5328(a) on the issue of physical custody. S.W.D., 96
A.3d at 407.
Moreover, in A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court
addressed a situation in which the trial court entered an order granting the
mother’s petition to relocate with the parties’ children, but failed to address
the section 5328(a) factors in modifying the prior physical custody
agreement. The trial court did not file an opinion in support of its order or
explain the basis for its decision. In reviewing an appeal filed by the father,
this Court stated:
When deciding a petition to modify custody, a court must
conduct a thorough analysis of the best interests of the child
based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
A.3d 73, 80 (Pa. Super. 2011). “All 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). . . . The record
must be clear that the trial court considered all the factors.
[E.D., supra at 81.]
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.[] § 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
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of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, ___ Pa. ___, 70 A.3d 808 (2013). . . .
In expressing the reasons for its decision, “there is no
required amount of detail for the trial court’s explanation; all
that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
denied, ___ Pa. ___, 68 A.3d 909 (2013). A court’s explanation
of reasons for its decision, which adequately addresses the
relevant factors, complies with Section 5323(d). Id.
A.V., 87 A.3d at 822-823.
The panel in A.V. further explained the need to discuss all of the
section 5328(a) factors where a party requests a modification of physical
custody from shared to primary, as follows:
We note this Court’s recent opinion in M.O. v. J.T.R., 85
A.3d 1058 (Pa. Super. 2014) (holding trial court need not
address Section 5328(a) custody factors in modifying custody
order, so long as modification does not affect type of custody
award; alteration to terms and conditions of custody order is not
“modification” of type of custody award; concluding Section 5328
and Section 5323 did not apply). But see E.D., supra at 80
(stating: “[W]hen a party files a petition for modification of a
custody order, the trial court must perform a ‘best interests of
the child’ analysis considering all of the section 5328(a)
factors”). Compare M.O., supra (limiting Section 5323 only to
orders awarding or modifying type of custody award) with 23
Pa.C.S.[] § 5323(c), (f), (g), and (h), (regulating entire scope of
custody orders, including requiring elaboration of any terms and
conditions of award, and providing for contempt with respect to
any custody order). Nevertheless, the instant case involves a
direct modification of the “type” of custody, from shared physical
to partial physical custody, and substantially reduced Father's
time with Children.
A.V., 87 A.3d at 824 n.4. The panel in A.V. found that the trial court’s
opinion was a wholesale adoption of the mother’s post-trial brief, with minor
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changes. The panel ruled that the trial court’s failure to articulate the
court’s independent reasoning with an analysis deprived this Court of the
ability to conduct appellate review. Thus, the panel remanded the matter
for further proceedings. A.V., 87 A.3d at 825.
We find that the trial court has failed to comply with section 5323(d),
as it has included an incomplete analysis of the section 5328(a) factors in its
opinion. We cannot conduct our appellate review. Accordingly, we remand
the matter for the trial court to address each of the section 5328(a) factors
in its opinion to demonstrate that it fully considered the best interests of the
Children, consistent with section 5323(d).
Case remanded with instructions. Panel jurisdiction retained.
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