J. A19008/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
M.P. A/K/A M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
C.J.P., : No. 40 EDA 2016
:
Appellant :
Appeal from the Order Entered December 7, 2015,
in the Court of Common Pleas of Lehigh County
Domestic Relations Division at No. 2006-FC-0697
BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2016
C.J.P. (“Father”) appeals, pro se, from the order dated December 4,
2015, and entered December 7, 2015, in the Lehigh County Court of
Common Pleas, which denied the petition for modification of custody of C.P.,
born in April of 2003, and A.J.P., born in May of 2005 (collectively,
“Children”), filed by M.P. (“Mother”), granted in part and denied in part the
petition for modification of custody filed by Father, and awarded the parties
* Former Justice specially assigned to the Superior Court.
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shared legal custody, Mother primary physical custody, and Father partial
physical custody.1 2
After review, we affirm.
The relevant procedural and factual history was summarized by the
trial court as follows:
The parties married on November 8, 2002 in
Fort Myers, Florida. They have two minor children,
C.P., born [in April of 2003], and A.J.P., born [in May
of 2005]. [Mother] filed a complaint in divorce on
June 8, 2006.
The parties initially entered into an
agreed-upon custody order on May 10, 2007 under
which they shared joint legal custody and [Mother]
had primary physical custody of the children.
Following the entry of that order, there were a
number of subsequent modification petitions and
emergency custody petitions in this matter which led
to several modified orders. The last custody order in
place prior to the order from which the instant
appeal in being taken was entered on December 3,
2014.[3] The December 3, 2014 order made certain
modifications to the physical custodial schedule, but
otherwise maintained the status quo of shared legal
1
The court additionally granted Mother’s petition for contempt and
sanctioned Father. Father does not address this portion of the trial court’s
order; therefore, Father waived any challenge to the contempt sanction
portion of the order.
2
While awarding Father partial physical custody, which he had previously
been awarded, the trial court reduced Father’s custodial time. (See order,
12/7/15 at 6-7; order, 12/4/14 at 7.)
3
The certified record reflects that, while this order was dated December 3,
2014, it was not entered for purposes of Pa.R.C.P. 236(b) until December 4,
2014. (Order, 12/4/14.)
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custody and primary physical custody with
[Mother].[4]
On March 3, 2015, [Mother] filed a petition for
modification of the December 4, 2014 order.
However, this petition was dismissed on March 31,
2015 at [Mother]’s request.
On May 11, 2015, [Father] filed a petition for
modification of the December 4, 2014 order.
[Mother] filed an Answer with a cross-petition to
modify on June 11, 2015. [Mother] also filed a
petition for contempt on the same day.
The Court conducted a custody trial on
December 2, 2015 to consider [Father]’s May 11,
2015 modification and contempt petitions, as well as
[Mother]’s answers and cross-petitions for
modification and contempt filed June 11, 2015.[ ] [6]
5
After the trial, the Court issued an order granting in
part and denying in part [Father]’s petition to modify
4
This order granted Father partial physical custody during a two-week
period from Thursday after school until Monday morning when Children were
to be dropped off timely at school (or at Mother’s residence by 10:00 a.m., if
no school) the first week, and from Wednesday after school until Friday
morning when Children were to be dropped off timely at school (or at
Mother’s residence by 10:00 a.m., if no school) the second week. (Order,
12/4/14 at 7.)
5
Upon review of the record, the trial court erroneously suggests a petition
for contempt was filed on behalf of Father.
6
At the hearing on December 2, 2015, both Father and Mother testified on
their own behalf. Additionally, Mother presented the testimony of her fiancé,
S.K., and the court interviewed Children, in camera.
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the custody order.[7] The Court also granted
[Mother]’s contempt petition and imposed a fine on
[Father], as well as ordering him to pay counsel fees
to [Mother].[8]
Trial court opinion, 1/25/16 at 1-2.
On January 4, 2016, Father filed a notice of appeal, pro se, along with
what he titled “A Briefing of Reasoning as to Why the Appeal,” which he also
later submitted as his appellate brief.9
On appeal, Father takes issue with the trial court’s award of less
custodial time with Children, arguing that “such a significant reduction of
custody time will truly harm them particularly now in their impressionable
years.” (Father’s brief at 1 (unpaginated).) Father proceeds to list each of
the 17 custody factors and dispute the trial court’s findings and/or note his
disagreement as to certain factors. (Id. at 1-7 (unpaginated).) As
7
This order granted the parties shared legal custody, Mother primary
physical custody, and Father partial physical custody. Specifically, Father
was awarded partial physical custody from Thursday after school until Friday
morning when Children were to be dropped off timely at school (or at
Mother’s residence by 10:00 a.m., if no school) and on alternating weekends
beginning Friday after school until Monday morning when Children were to
be dropped off timely at school (or at Mother’s residence by 10:00 a.m., if
no school). (Order, 12/7/15 at 6-7.)
8
The court additionally denied Mother’s request for modification. (Order,
12/7/15 at 6.)
9
Although Father’s brief may not be in conformity with Pennsylvania Rule of
Appellate Procedure 2111, et seq., as we find Father’s arguments
comprehensible and no resulting prejudice to Mother, and as Mother fails to
allege any resulting prejudice, we decline to dismiss and/or quash Father’s
appeal.
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characterized by the trial court, “[Father] . . . essentially reviews the various
factors and points out several instances where Appellant disagreed with the
Court’s determination or rationale.” (Trial court opinion, 1/25/16 at 4.)
Our standard of review with regard to a custody matter is well settled:
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,
or are unreasonable in light of the
sustainable findings of the trial court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012)
(citations omitted).
“When a trial court orders a form of
custody, the best interest of the child is
paramount.” S.W.D. v. S.A.R., 96 A.3d
396 (Pa.Super. 2014) (citation omitted).
The factors to be considered by a court
when awarding custody are set forth at
23 Pa.C.S. § 5328(a).
E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015).
Section 5328 provides as follows:
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(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) (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,
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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).
As we interpret his challenge to the trial court’s order, Father, in
essence, questions the trial court’s conclusions and assessments and seeks
for this court to re-find facts, re-weigh evidence, and/or re-assess credibility.
This we cannot do. Under the aforementioned standard of review applicable
in custody matters, the trial court’s findings of fact and determinations
regarding credibility and weight of the evidence are not disturbed if there is
any evidence in the record to support them. See E.R., 129 A.3d at 527. As
we stated in King v. King, 889 A.2d 630 (Pa.Super. 2005):
It is not this Court’s function to determine whether
the trial court reached the “right” decision; rather,
we must consider whether, “based on the evidence
presented, given [sic] due deference to the trial
court’s weight and credibility determinations,” the
trial court erred or abused its discretion. . . .
Id. at 632, quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super.
2005).
In the instant matter, the trial court carefully analyzed and addressed
each factor under Section 5328(a) in considering Children’s best interests.
(Order, 12/7/15 at 1-6.) Thus, after review of the record, we determine
that the trial court’s findings and determinations regarding the custody
factors are supported by competent evidence in the record, and we will not
disturb them. See E.R., 129 A.3d at 527.
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Accordingly, for the foregoing reasons, we affirm the order of the trial
court awarding the parties shared legal custody, Mother primary physical
custody, and Father partial physical custody.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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