J-S20026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
C.L.
Appellee No. 1300 WDA 2015
Appeal from the Order August 17, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 06-00656-002
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 22, 2016
Appellant, L.A.1 (“Mother”), appeals pro se from the order entered on
August 17, 2015. We affirm.
The factual background and procedural history of this case are as
follows. Mother and C.L. (“Father”) became romantically involved in 2005.
Their relationship produced two children, De.L., born in July 2007, and Da.L,
born in August 2008 (collectively “the Children). Mother and Father had a
contentious relationship and the Commonwealth charged Father with
harassment and related offenses for an incident that occurred in June 2008
at the couple’s residence.
1
We identify the parties to this litigation by their initials in order to maintain
confidentiality for the Children.
* Retired Senior Judge assigned to the Superior Court
J-S20026-16
In 2011, Mother planned to relocate to Mississippi. Prior to leaving for
Mississippi, Mother left the Children with Father who assumed primary
physical custody. After a brief stay in Mississippi, Mother returned to
Allegheny County, Pennsylvania. Upon her return, she did not seek custody
of the Children on a regular basis. In 2013, however, Mother requested
custody of the Children on a more frequent basis. Father permitted Mother
to have more custody time.
On October 25, 2011, Mother filed a complaint in custody seeking
primary physical custody of the Children. On May 22, 2012, because Mother
failed to attend conciliation, the trial court dismissed her complaint. On July
17, 2012, Mother filed a second complaint in custody seeking primary
physical custody of the Children. On January 18, 2013, because both parties
failed to attend mediation, Mother’s second custody complaint was
dismissed. On November 21, 2014, the trial court awarded Father primary
physical of the Children and awarded Mother partial physical custody.
On April 7, 2014, Mother filed a petition seeking custody modification.
On July 24, 2014, a hearing officer filed a report and recommendation
finding that Father had primary physical custody of the Children pursuant to
court order and that Father maintained primary physical custody of the
Children between January 2013 and February 2014. On October 21, 2014,
the trial court adopted the hearing officer’s recommendation and overruled
Mother’s objections thereto. On November 21, 2014, the trial court ordered
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that Father continue with primary physical custody of the Children and that
Mother continue with partial physical custody. On March 27, 2015, after
conciliation, the trial court again ordered that Father continue with primary
physical custody of the Children and that Mother continue with partial
physical custody.
On July 7, 2015, a trial was held on Mother’s custody modification
petition. On August 14, 2015, the trial court entered findings of fact. On
August 17, 2015, the trial court ordered that Father continue with primary
physical custody of the Children and that Mother continue with partial
physical custody. This timely appeal followed.2
Mother raises one issue for our review:
Whether the [trial] court ignored evidence and witness
testimony, and whether the [trial] court show[ed] favoritism
toward [F]ather[?]
Mother’s Brief at 1 (unnumbered).
In custody cases, our standard and scope of review are as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard [of review] 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
2
The trial court did not order Mother to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).
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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.
R.S. v. T.T., 113 A.3d 1254, 1257 (Pa. Super. 2015), appeal denied, 117
A.3d 298 (Pa. 2015) (citation omitted).
We have stated:
the 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.
R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015) (citation omitted).
Thus, we will only find an abuse of discretion “if in reaching a conclusion, the
court overrides or misapplies the law, or the judgment exercised is shown by
the record to be manifestly unreasonable or the product of partiality,
prejudice, bias, or ill will[.]” Estate of Sacchetti v. Sacchetti, 128 A.3d
273, 282 (Pa. Super. 2015) (citation omitted).
With any custody case, the paramount concern is the best interest of
the child. See 23 Pa.C.S.A. §§ 5328, 5338. Upon petition, a trial court may
modify a custody order if it serves the best interest of the child. 23
Pa.C.S.A. § 5338. Section 5328(a) sets forth the best interest factors that
the trial court must consider. See S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.
Super. 2014).
Section 5328(a) outlines the following best interest factors:
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(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.
(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.
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(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). Although a trial court must consider all of these
factors, “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.”
K.T. v. L.S., 118 A.3d 1136, 1160 (Pa. Super. 2015) (citation omitted).
Mother raises a general claim that the trial court abused its discretion.3
We address Mother’s various contentions in that claim seriatim. Mother
argues that the trial court abused its discretion by failing to consider the fact
that Father abused her in 2008 and harassed her in 2014 and 2015. The
trial court, however, explicitly recognized that Father was charged with
harassing Mother in 2008. Findings of Fact, 8/14/15, at 2. It nonetheless
determined that there was no continued risk of harm to the Children or
Mother if Father were awarded primary physical custody of the Children.
3
We could find Mother’s lone issue waived for failure to cite to the record
and pertinent legal authority. See Pa.R.A.P. 2101, 2119(b). In our
discretion, however, we decline to find waiver on this basis.
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See id. The trial court further found that both parties could provide
adequate physical safeguard and supervision of the Children. See id. Thus,
the trial court adequately considered the second section 5328(a) factor.
Next, Mother argues that the trial court erred by finding that Father
was more likely than Mother to foster the Children’s relationship with the
other parent. We conclude that this factual finding is supported by the
record. Specifically, Father testified that he was “more lenient” with
granting Mother additional custody time with the Children than he was
required by court order. N.T., 7/7/15, at 94. In other words, he chose to
foster the Children’s relationship with Mother by granting her more custody
time. Mother argues that Father withheld custody of the Children on certain
occasions; however, the trial court determined that, based upon the parties’
custody arrangement, Father was within his rights to withhold custody
during those periods.
Mother also argues that Father admitted to having a conversation with
his brother and his brother’s girlfriend, in the Children’s presence, which
caused the Children to cry. The testimony at trial, however, reveals that the
Children were crying because Mother called the police. N.T., 7/7/14, at 119.
Furthermore, it was Father’s brother and his girlfriend that were speaking
poorly of Mother. See id. at 118.
Mother contends that the trial court erred by finding that her hostility
towards Father would prevent her from attempting to foster a relationship
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between the Children and Father. The trial transcript reveals Mother’s open
hostility to Father. For example, Mother’s attempt to break up a father-son
moment after one of the Children’s youth football games at Highmark
Stadium evidenced her hostility towards Father. Thus, the trial court’s
finding that the first section 5328(a) factor weighed in favor of Father is
supported by the record and free of legal error.
Next, Mother argues that the trial court’s factual finding that Mother
did not seek custody of Children upon her return from Mississippi is
unsupported by the record. Although Mother testified that she sought
custody of the Children upon her return, the trial court found this testimony
not credible. Instead, the trial court credited Father’s testimony. Father
testified that Mother did not seek custody of the Children upon her return
from Mississippi. N.T., 7/7/15, at 97. Because, the trial court’s factual
finding is supported by the record, and because credibility assessments fall
within the purview of the trial court, we will not disturb this determination on
appeal.
Mother next argues that the trial court erred when finding that Mother
does not prioritize education. The trial court’s factual finding in this regard
is supported by the record. At trial, Mother conceded that the Children had
five unexcused absences from school while in her care and were frequently
tardy. Furthermore, Father testified that the Children were frequently in
trouble at school until he pulled them out of public school and enrolled them
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in a charter school. Thus, the trial court’s determination that Mother did not
prioritize education is supported by the record.
Mother argues that the trial court erred by finding that Mother does
not provide a stable environment for the Children. Mother concedes,
however, that she left the Pittsburgh area and moved to Mississippi in 2011.
Father testified that Mother made no arrangements with him regarding this
move and that he made emergency arrangements for the Children’s care
because of Mother’s absence. Furthermore, Father testified that Mother’s
situation upon returning from Mississippi was not stable. Thus, the trial
court’s factual finding as to the fourth section 5328 factor is supported by
the record.
Finally, Mother contends that the trial court erred when it found that
Father attempts to limit his communication with Mother. Mother instead
claims that she asked Father to stop contacting her. The trial court’s factual
finding is supported by the record. At trial, Father testified that he does not
unnecessarily communicate with Mother. Instead, he only contacts Mother
when required to arrange custody transfers and other necessary tasks. The
trial court accepted Father’s explanation that he avoids communication with
Mother to avoid her anger and insults. Accordingly, the record supports the
trial court’s factual finding on this issue. Hence, this contention merits no
relief.
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We have carefully reviewed the notes of testimony from the custody
trial and related filings. We have also reviewed the trial court’s findings of
fact and Mother’s brief on appeal. We conclude that the trial court properly
considered and weighed the section 5328 factors without any evidence of
bias, ill will, or prejudice to Mother. The trial court’s factual findings are
supported by the record and its legal conclusions are free of error. Thus, we
affirm the trial court’s award of primary physical custody to Father.
Order affirmed.
Platt, J., joins this memorandum.
Panella, J., concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2016
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