J-S05002-16
2016 PA Super 40
C.A.J., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
D.S.M.,
Appellee No. 1264 MDA 2015
Appeal from the Order Entered June 25, 2015
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2013-154
BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 18, 2016
Appellant, C.A.J. (“Mother”), appeals from the order entered on June
25, 2015, modifying custody and granting Mother and Appellee, D.S.M.
(“Father”), shared legal and physical custody of minor child, G.M. (“Child”).
After careful review, we vacate the order and remand to the trial court for
proceedings consistent with this opinion.
The trial court summarized the relevant facts and procedural history of
this case in its Pa.R.A.P. 1925(a) opinion, as follows:
Mother and Father are the parents of one minor child, []
born June [] 2012. Mother originally filed a complaint for
custody and special relief on January 1, 2013. Following
conciliation, the parties reached an agreement and a Custody
Order was entered on January 31, 2013 (hereinafter “2013
Order”). The 2013 Order gave Mother primary physical custody
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*
Retired Senior Judge assigned to the Superior Court.
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with Father having custody every other weekend during the
months of September through May 1. From May 1 through
September 1, the parties were to share custody 50/50 on a week
on/week off basis.
Prior to the 2013 Order, Mother and Father shared custody
as mutually agreed upon. Earlier in January 2013, before the
2013 Order was entered, Mother relocated to New Kensington,
Pennsylvania. As the courts were not involved, Mother did not
seek permission to relocate.
Father filed a pro se Petition for Contempt on February 17,
2015. In his petition, Father alleged that Mother was not giving
Child back when it was Father’s time. Father also requested that
he be given primary care of Child in the petition. This Court
ordered the parties to attend a custody conciliation.
The custody conciliation was held on March 19, 2015.
Neither party was represented by counsel at the conciliation. At
the conciliation, Father requested that the parties share custody
on an alternating bi-weekly schedule due to the distance
between the parties’ residences. The parties were not able to
reach an agreement on custody and requested a hearing before
the court on outstanding custodial issues. On March 31, 2015, a
temporary custody order was entered pending the court hearing
on Father’s Petition for Contempt.
The hearing on Father’s Petition for Contempt was held on
June 24, 2015, with both parties present. Father testified that
Mother violated the 2013 Order by refusing him custodial time
and harassing him. Father stated the most recent event
occurred on December 23, 2014, when Mother came to his
residence demanding he return Child, even though it was his
time. Thereafter, Mother kept Child the entire month of January
and Father did not see Child until February 6, 2015. Father
indicated he made contact with Mother through text message
during January with no response until February 6. Mother
responded by testifying that Father also denied her access to
Child and will not let her speak to Child on the phone.
It became apparent at the hearing that neither party
followed the 2013 Order. Father and Mother would keep Child
for extended periods of time and exchange custody when it was
convenient for them and not when the 2013 Order dictated.
Therefore, Father indicated at the hearing that he wanted the
custody order changed to a two weeks on, two weeks off
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schedule, because for all practical purposes Mother and Father
were already sharing time on an equal basis. Father also
presented the testimony of his girlfriend, Angela Small. She
testified that she lives with Father along with her two sons, ages
12 and 5. She stated that Child has a good relationship with her
sons and they enjoy spending time together. Mother testified
she wanted to retain primary physical custody with Father
having custody every other weekend. She indicated that the
50/50 custody the parties had over the summertime was not
working.
Following the hearing, on June 25, 2015, this Court
entered a new custody order (hereinafter “2015 Order”). The
2015 Order granted shared physical custody to both Father and
Mother for a two week on, two week off period. Along with the
custody order, this Court also issued an order detailing its
analysis of the best interests of Child and discussed the relevant
custody factors.
Trial Court Opinion (TCO), 8/6/15, 1-4 (footnotes omitted).
On July 24, 2015, Mother filed a timely notice of appeal and Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Mother now presents
the following issues for our review:
I. Did the trial court err and abuse its discretion in modifying
the prior custody order when a custody modification
petition had not been filed but instead only a petition for
contempt had been filed?
II. Did the trial court abuse its discretion in applying the
custody factors found in 23 Pa.C.S. § 5[3]28 and in
determining the best interests of the child?
Mother’s Brief at 6 (unnecessary capitalization omitted).
We review a trial court’s determination in a custody case for an
abuse of discretion, and our scope of review is broad. Because
we cannot make independent factual determinations, we must
accept the findings of the trial court that are supported by the
evidence. We defer to the trial judge regarding credibility and
the weight of the evidence. The trial judge’s deductions or
inferences from its factual findings, however, do not bind this
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Court. We may reject the trial court’s conclusions only if they
involve an error of law or are unreasonable in light of its factual
findings.
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014).
Mother argues that she was denied due process when the trial court
entered its June 25, 2015 order modifying the 2013 custody order, because
Father only filed a petition for contempt, not a petition to modify custody.
Mother contends that before a court can modify a custody order, the filing of
a petition to modify custody is required, pursuant to Section 5338 of the
Domestic Relations Code.1
While we agree that, generally, the appropriate manner in which to
request modification of a custody order is to file a petition for modification in
compliance with Pa.R.C.P. 1915.15, we have previously stated that “this
does not prevent the trial court, under appropriate circumstances to alter a
custody/visitation Order when it is in the best interest of the child to do so.”
Guadagnino v. Montie, 646 A.2d 1257, 1262 (Pa. Super. 1994) (quoting
Choplosky v. Choplosky, 584 A.2d 340, 341 (Pa. Super. 1990)). In fact,
we recently emphasized:
While it is the appropriate practice under the Act and the Rules
of Civil Procedure to file a pleading entitled a “petition to modify
custody” to seek modification of a custody order, this Court has
held nonetheless, that if notice of the proceeding adequately
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1
See Section 5338, which provides, in relevant part: “Upon petition, a
court may modify a custody order to serve the best interest of the child.” 23
Pa.C.S. § 5338(a). See also Pa.R.C.P. 1915.15, which governs the format
for a petition to modify a custody order.
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advises a party that custody will be at issue, a court may
entertain the request to permanently modify a custody order
after hearing in that proceeding.
S.W.D., 96 A.3d at 405-406 (Pa. Super. 2014) (citing Guadagnino, 646
A.2d at 1262) (emphasis added).2
In Guadagnino, we examined the law regarding the procedure by
which a change in custody can be requested. At the time, there were
numerous cases in which trial courts modified custody agreements at
contempt hearings without a pending petition for modification, which
ultimately led to remand on appeal, so that the proper procedure for
requesting a custody modification could be followed.3 However, in each of
these cases, there was no notice that the custody order would be at issue
during the contempt hearing. Guadagnino, 646 A.2d at 1262.
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2
In S.W.D., the father filed a petition for special relief which focused
primarily on where the child would attend school, but also included a request
to enforce an informal custody modification to which the mother and father
had agreed. Contrary to the trial court’s belief in S.W.D., we explained that
even though the pleading filed was not entitled a “petition for modification,”
the trial court would not have abused its discretion by modifying the custody
order, should it have deemed a modification to be in the best interest of the
child, because the mother had been provided adequate notice that custody
would be at issue at the hearing. S.W.D., 96 A.3d at 406.
3
See Choplosky, 584 A.2d at 341-342 (holding that while modification of
custody orders may be entertained at any time in order to promote the best
interests of the child, general notice requirements must be strictly
observed). See also Seger v. Seger, 547 A.2d 424, 426 (Pa. Super. 1988)
(finding that the trial court lacked authority to modify custody order absent
the filing of a petition for modification); Steele v. Steele, 545 A.2d 376,
378 (Pa. Super. 1988) (stating that the filing of a petition for modification is
the appropriate manner in which to seek a change in a custody or visitation
order).
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The facts in Guadagnino were distinguishable from these cases, in
that there was adequate notice to the parties that the custody order would
be challenged. Id. In Guadagnino, a custody order had been entered
granting the mother and father shared physical custody of the child.
However, the father filed a petition for contempt and claimed that the
mother obstructed transfer of custody and was, generally, confrontational.
In addition to requesting that the mother be found in contempt, the father’s
petition also included a request for an order granting him primary physical
custody of the child. Id. at 1258. On appeal, we stated the following:
Here, the trial court had before it the request that custody be
transferred, and conducted the “contempt” hearing accordingly;
the hearing was tailored to the issues at hand. We do not find it
necessary, therefore, to remand for reinstatement of the original
custody order so that another hearing can be held on the
petition for modification of custody; such action would result in a
waste of judicial resources.
Id. at 1262.
Similarly, in the case before us, Father’s Petition for Contempt
expressly stated that he was seeking primary custody.4 Accordingly, upon
receipt of Father’s Petition, the court entered an order directing the parties
to appear before a conciliator on March 19, 2015 for a “Pre-Hearing Custody
Conference.” The order further directed the parties “to furnish any and all
existing … Custody orders to the conciliator 48 hours prior to scheduled
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4
See Father’s Petition for Contempt at ¶ 25 (stating “[Father] wants
primary care of [Child]”).
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hearing.” Order of Court, 2/18/15. Additionally, the record indicates that
the February 18, 2015 order was served on Mother and that Mother
participated in the custody conciliation by telephone. Thus, Mother was
clearly on notice that the 2013 custody order was at issue. As pointed out
by the trial court in its 1925(a) opinion:
[At the custody conciliation,] the parties discussed custody but
were unable to reach an agreement. The conciliation report also
details both parties’ positions with regard to custody of the child.
Furthermore, the conciliation report states:
7. As the parties requested a hearing before the [c]ourt on
the outstanding custodial issues, the conciliator submits an
Order in the form as attached scheduling a hearing and
providing for temporary custodial arrangements which
were agreed upon by the parties, pending the hearing.
Thereafter, the [c]ourt hearing was held on June 24, 2015, with
both parties having notice custody would be discussed as they
had requested at the conciliation. At the hearing, both parties
were present and offered their positions on custody. Based on
the best interest of Child and after consideration of the custody
facts, this [c]ourt modified the prior custody order.
TCO at 6-7 (internal footnotes omitted).
Mother argues that the trial court violated her due process rights,
relying on the decision in Langendorfer v. Spearman, 797 A.2d 303 (Pa.
Super. 2002), where this Court concluded that the father’s due process
rights were violated when the trial court granted the mother’s petition for
contempt and modified custody, because the father had no notice that
custody would be at issue in the proceedings. In Langendorfer, this Court
stated:
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Without notice to the parties that custody was at issue, the trial
court could not assume that the parties had either sufficiently
exposed the relevant facts or properly argued their significance.
Consequently[,] neither we nor the trial court can make an
informed, yet quintessentially crucial judgment as to whether it
was in the best interests of the child involved to give sole legal
and physical custody to the mother.
Id. at 309 (quotation marks and citations omitted) (emphasis added).
Oddly, Mother reproduces the following portion of the Langendorfer opinion
in support of her argument:
In the instant case, Mother’s petition for contempt in no way
implicates custody, i.e., she did not request any change in
custody. Furthermore, the order to appear received by the
parties from the court that scheduled the contempt hearing did
not notify the parties that custody was at issue. … Moreover, the
transcript of the hearing reveals that only the contempt petition
was before the court.
Mother’s Brief at 10 (quoting Langendorfer, 797 A.2d at 308-309)
(emphasis added).
Based on our review of relevant case law, we conclude that if the
parties had notice that custody would be at issue, the court is permitted to
modify custody without a pending petition for modification. Mother’s
reliance on Langendorfer is misplaced, as the facts in the instant case are
easily distinguishable. First, in the case before us, Father’s petition
expressly states that he is requesting physical custody, thereby placing
Mother on notice that the custody order was at issue. Additionally, in
response to the filing of Father’s petition, the court ordered Mother to appear
at a custody conciliation. Finally, our review of the transcript of the
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contempt hearing reveals that the issue of custody was the focus of the
hearing.
Based on the foregoing, we conclude that Mother had proper notice
custody would be at issue at the contempt proceeding. Accordingly, we
discern no abuse of discretion by the trial court in its modification of the
2013 custody order.
We now address Mother’s second issue as to whether the trial court
properly applied the custody factors listed in 23 Pa.C.S. § 5328 in
determining the best interests of Child. As we stated in A.V. v. S.T., 87
A.3d 818 (Pa. Super. 2014):
Section 5328 [of the Custody Act] provides an enumerated list of
sixteen factors a trial court must consider in determining the
best interests of the child … when awarding any form of custody:
§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.
(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).
Id. at 821-822 (emphasis added).
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Mother avers that the trial court erred in not fully delineating its
reasons on the record or in an opinion for its modification of the 2013
custody order. Mother’s Brief at 17. After careful review, we agree.
We explained in S.W.D. that:
The Act requires a court to consider all of the § 5328(a) best
interest factors when ordering any form of custody. Sections
5323(a) and (d) reinforce this mandate by requiring a court to
delineate the reasons for its decision when making an award of
custody either on the record or in a written opinion. Mere
recitation of the statute and consideration of the § 5328(a)
factors en masse is insufficient. A trial court’s failure to place its
reasoning regarding the § 5328(a) factors on the record or in a
written opinion is an error of law. Accordingly, in C.B.[ v. J.B.,
65 A.3d 946 (Pa. Super. 2013)], when the trial court merely
stated that it had considered the § 5328(a) factors, we held that
the trial court’s on-the-record explanation was insufficient under
the statute. Similarly, in M.P.[ v. M.P., 54 A.3d 950 (Pa. Super.
2012)], we found error where the trial court listed the § 5328(a)
factors but failed to apply them.
S.W.D., 96 A.3d at 401-402 (internal citations and quotation marks
omitted).
In the case at bar, the trial court entered a new custody order on June
25, 2015, granting shared physical custody to Father and Mother. Along
with the custody order, the court also issued an order listing the following
reasons in support of its custody modification:
1. Both parties are likely to encourage and permit frequent and
continuing contact between [] Child and each other.
2. Both parties have adequately performed parental duties for []
Child.
3. In as much as [] Child is only 3 years old and is not yet
enrolled in school, this is the best time for the parents to
share custody equally. Obviously, once [] Child is enrolled in
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school, given the significant distance between the parents’
homes, [] Child will obviously have to have primary custody
with one of the parents during the school year.
4. [] Child does have significant sibling relationships with the
Father’s girlfriend’s two children who live in Father’s home.
5. Both parties are capable of maintain a loving, stable and
consistent and nurturing relationship with [] Child.
6. Father resides in Enola, Pennsylvania and Mother in New
Kensington, Pennsylvania which is near Pittsburgh. Given this
significant distance between the parents’ homes, minimizing
exchanges will financially benefit both parties.
7. Both parties have shown their ability to provide for
appropriate child care arrangements when they are working.
8. The level of conflict between Mother and Father is significant.
They do not communicate well. Accordingly, having a set
50/50 schedule minimizes the amount of communication
these parents have to have with each other.
Order of Court, 6/25/15.
Based on our review of the record, it is evident that the trial court
considered approximately half of the statutorily mandated factors in making
its decision to modify custody. However, the court is required to consider all
of the section 5328(a) factors when entering a custody order. See J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). Here, the list of reasons
provided by the trial court fails to make any mention to the following
mandated factors: the present and past abuse committed by a party or
member of the party’s household; the availability of extended family; the
well-reasoned preference of the child, based on the child’s maturity and
judgment; the attempts of a parent to turn the child against the other
parent; which party is more likely to attend to the daily physical, emotional,
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developmental, educational and special needs of the child; the history of
drug or alcohol abuse of a party or member of a party’s household; and the
mental and physical condition of a party or member of a party’s household.
See 23 Pa.C.S. § 5328(a). Moreover, some of the section 5328(a) factors
which are addressed by the court lack any in-depth analysis. Accordingly,
we are constrained to conclude that the trial court committed an error of law
by failing to properly assess all of the section 5328(a) factors.
For the foregoing reasons, we vacate the 2015 custody order and
remand for preparation of an opinion and order specifically addressing all the
factors enumerated under 23 Pa.C.S. § 5328(a) on the issue of physical
custody. The trial court must issue its opinion and order within 30 days of
the date on which the certified record is returned.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2016
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