J-A33015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.P. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
M.A.P.
Appellant No. 897 WDA 2016
Appeal from the Order Entered May 20, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2014-7015
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 6, 2017
M.A.P. (Mother) appeals from the custody order regarding L.P. (Child)
entered in the Court of Common Pleas of Washington County on May 20,
2016. Among other things, the order specifies that Mother and M.P.
(Father) shall have 50/50 shared physical custody of Child. Upon review, we
affirm.
The trial court summarized the relevant facts and procedural history as
follows:
Father and Mother are the parents of one minor child, [(the
Child)], who is currently six years of age. Mother and Father
were married on September 22, 2006. This was Father’s first
marriage and Mother’s second. Mother had three daughters
from a previous marriage. [Child] was born on May 13, 2010.
On or about September 29, 2014, Mother filed for divorce from
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*
Retired Senior Judge assigned to the Superior Court.
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Father, and Father ultimately left the marital residence at
Mother’s request on or about October 31, 2014. Mother, Father
and [Child] lived as an intact family until Father vacated the
residence in October 2014.
On or about November 13, 2014, Father filed a [c]omplaint for
[c]ustody seeking shared physical and legal custody of [Child].
On January 7, 2014, the parties entered into an [i]nterim
[c]ustody [c]onsent [o]rder that provided shared legal custody
of [Child] to Mother and Father and granted Mother primary
physical custody. Father was entitled to partial physical custody
every other weekend from after school on Friday until 5:00 p.m.
on Sunday and every Wednesday from after school to Thursday
at 5:00 p.m. Following a [c]ustody [c]onciliation [c]onference
on April 6, 2015, the parties entered into another [i]nterim
[c]ustody [c]onsent [o]rder[,] [which] granted both parties two
non-consecutive seven day periods of vacation, granted the
Mother’s Day holiday to Mother, granted the Father’s Day holiday
to Father and [Child’s] birthday visitation was planned out. A
half-day [c]ustody [c]onciliation [c]onference was scheduled for
August 10, 2015.
Prior to the half-day [c]ustody [c]onciliation [c]onference on
August 10, 2015, both parties were required to complete a
[c]ustody [e]ducation [p]rogram. At the half-day [c]ustody
[c]onciliation [c]onference, Mother was precluded from
presenting any evidence because she had not completed said
[c]ustody [e]ducation [p]rogram. On September 3, 2015, this
[c]ourt adopted the [r]ecommended [o]rder of Conference
Officer David Rudnquist, and issued [an order] that granted both
parties legal custody of [Child] and granted the parties shared
physical custody on a rotating 3-4-4-3 basis. On September 29,
2015, Mother requested a [t]rial [d]e [n]ovo and a [p]re-[t]rial
[c]onference was scheduled for November 23, 2015.
However, prior to the [p]re-[t]rial [c]onference, Father
presented a [p]etition for [s]pecial [r]elief to this [c]ourt. The
[petition] stated that the 3-4-4-3 schedule . . . provided Father
with no weekend time. Father’s counsel proposed a new
schedule that would essentially follow the periods as suggested
in the [r]ecommended [o]order, but that would also provide
each party with a Saturday and Sunday on alternating
weekends. On October 20, 2015[,] this [c]ourt adopted the
schedule as suggested . . . so that Father and Mother would each
enjoy every other weekend with [Child], as well as continuing
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their shared custody arrangement. Afterwards, on November
18, 2015, this Court entered an [o]rder amending the
[r]ecommended [o]rder dated September 3, 2015, so that the
parties shared primary custody of [Child] on a 5-2-2-5 custody
rotation, and all other provisions . . . remained in full force and
effect. The November 18, 2015 [c]ourt [o]rder vacated the
[o]rder of [c]ourt dated October 20, 2015.
On November 23, 2015, a [p]re-[t]rial [c]onference was held in
this matter. Upon agreement of the parties, a subsequent
[conference] was scheduled for January 29, 2016. Thereafter a
trial de novo took place before the undersigned on April 18,
2016, April 19, 2016, and May 6, 2016. Father [sought] shared
physical and shared legal custody. Father [] also request[ed]
that [Child] attend the Peters Township School District and that
the parties have a week-on[-]week-off custody schedule that
limits the child’s transportation to and from the parties’ homes,
to one exchange per week. Mother [] request[ed] primary
physical custody and that [Child] attend the McGuffey School
District.
Trial Court Opinion, 7/20/16, at 1-3.
The trial court issued an order on May 20, 2016, changing the 50/50
custody arrangement to a 5-2-2-5 rotation so that Child would switch
between Mother and Father once per week. The court also ordered that
Child shall attend the Peters Township School District beginning in August
2016. Mother filed a timely notice of appeal and concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mother raises the
following issues for our review:
1. Did the trial court commit legal error and abuse its discretion
in entering a 50/50 shared physical custody arrangement
when applying the custody factors of 23 Pa.C.S.A. [§] 5328?
2. Did the trial court commit legal error and abuse its discretion
by ordering [Child to] attend school in Father’s school district
(Peters Township) thereby removing the child from Mother’s
[s]chool [d]istrict (McGuffey)[?]
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3. Did the trial court commit an error of law and abuse its
discretion in finding that [Mother’s] email of December 8,
2014, demonstrates [her] belief that she unilaterally has the
right to control Father’s contact with [Child]?
4. Did the trial court commit an error of law and abuse its
discretion in finding that [Mother] would only permit one
phone call between [Father] and [Child] while she was on
vacation?
5. Did the trial court commit an error law and abuse its
discretion in finding that [Mother] would not allow [Father]
any additional time if she was granted a greater level of
custody?
6. Did the trial court commit an error of law and abuse its
discretion in finding that testimony offered by [Mother’s]
three (3) other minor children and sister was not credible as
to [Father’s] role in the household prior to separation?
Brief for Appellant, at 11-12.
Our standard and scope of review are 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,
or are unreasonable in light of the sustainable findings of the
trial court. When a trial court orders a form of custody, the best
interest of the child is paramount. 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) (citations and
quotations omitted). Further,
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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 [s]ection 5328(a) factors. All of the
factors listed in section 5328(a) are required to be considered by
the trial court when entering a custody order.
A.V. v. S.T., 87 A.3d 818, 822 (Pa. Super. 2014) (citations and quotations
omitted).
We note that Mother raises several issues on appeal,1 which involve
the trial court considering the evidence, making credibility determinations,
weighing the factors set forth in section 5328(a), and coming to a conclusion
that is other than the outcome Mother desires. However, Mother does not
point to any instance in the record in which the court failed to consider any
of the required factors, nor does she cite to any portion of the record to
support her argument that the court abused its discretion. Mother merely
argues that the court decided the issues incorrectly. Indeed, a review of this
matter indicates that the record has been well-developed and that the court
appropriately considered each statutory factor and provided an evidentiary
basis for its determinations.
As to Mother’s first issue, she argues that the court abused its
discretion in ordering a 50/50 shared physical custody arrangement. Mother
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1
Mother’s brief fails to follow appellate rules regarding citation to the record
and largely fails to cite to relevant legal authority. See Jones v. Jones,
878 A.2d 86, 90 (Pa. Super. 2005) (finding waiver of issues on appeal for
failure to follow appellate briefing rules, including development of argument
and citation to relevant legal authority). Here, however, because we are
able to discern the issues raised, we will dispose of them on the merits.
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argues that the commute, approximately 40 minutes each way, is
unreasonable. However, Mother offers no legal support for this argument,
nor does she provide any evidence that this has been detrimental to Child.
The trial court determined, after weighing the custody factors, that it would
be in Child’s best interest to have equal time with both parents. Moreover,
the 5-2-2-5 arrangement requires Child to switch households only once per
week. Accordingly, we find no abuse of discretion on the part of the court.
Next, Mother argues that the court abused its discretion in ordering
that Child attend school in the Peters Township School District. Evidence
was presented that Peters Township is superior to the McGuffey School
District, where Mother resides. It is not contested that Child is highly
intelligent. Father testified that it is important that Child be challenged
academically. Mother merely argues, based upon her personal opinion, that
Child would excel in the McGuffey School District because her other children
did well in that district, but she offered no evidence on the record that
McGuffey would be a better placement for Child. Thus, when presented with
evidence that Peters Township is superior, the court did not abuse its
discretion in ordering that Child attend school there instead of the McGuffey
School District.
Mother presents an argument regarding an email she sent to Father on
December 8, 2014, which was shortly after Mother and Father had
separated. In the email, Mother wrote the following:
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Concerning your request to have [Child] a few overnights next
week in addition to your weekend, I am not in agreement with
you for [Child] to stay overnight at your house 3-4 nights a
week. What we had spoken about, both before you moved out
and since is as follows: Alternating weekends with me to have
[Child]. Also, I have offered that you can have [Child] one night
each week, Monday – Thursday, coinciding with my work trips.
In the event you do not have him one overnight, you see him
two evenings during the week. Additionally, I have also offered
that if you have free time during a weekday, i.e.[,] between 8am
and 5pm, you are free to see [Child] during that period. Pending
a custody hearing and ruling this is the visitation schedule I am
willing to work out with you.
Mother’s Email to Father, 12/8/14. Mother claims that the trial court erred
in determining that this email showed that Mother believed that she could
unilaterally control the amount of time Father could enjoy with Child. The
final sentence belies Mother’s claim of error, as it indicates her inflexible
stance on the subject. Accordingly, we discern no error on the part of the
court.
Next, Mother asserts that the court committed an error by finding that
Mother would only permit Father to speak with Child on the phone once
while she and Child were on vacation. Mother argues that this unfairly
places her in a negative light. The record reveals that an email was
admitted into evidence in which Mother informed Father that he “may call
[Child] once while we’re on vacation[.]” Mother’s Email to Father, 7/17/15.
Accordingly, this issue is baseless.
Mother also argues that the court abused its discretion when it
determined that if she were granted a greater level of custody, she would
not permit Father to have additional visitation time. Evidence was presented
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at trial to refute Mother’s claim, including an instance in which Mother
refused to allow Father to take Child to his company’s picnic despite her
having notice of it a month in advance. Thus, we find that the court’s
determination was not an abuse of discretion.
Finally, Mother argues that the court abused its discretion in weighing
the credibility of her sister’s and her children’s testimony regarding Father’s
role in the household prior to Mother and Father separating. Mother asserts
that the testimony of these witnesses establishes that Father was not
involved in the household in an attempt to demonstrate that he was not
invested in a relationship with Child. However, evidence was presented that
both Father and Mother provided for Child’s physical and emotional needs.
Additionally, credibility and weight of the evidence were determinations for
the court to make, and we discern no abuse of discretion.
For the foregoing reasons, we find that the trial court’s determinations
were reasonable and that the court did not abuse its discretion or commit an
error of law in entering the custody order in this matter. E.R., supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2017
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