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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.G.L., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
A.R.L. :
:
Appellee : No. 1644 MDA 2016
Appeal from the Order September 6, 2016
In the Court of Common Pleas of Berks County
Civil Division at No(s): 05-5988 #3
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 11, 2017
Appellant, L.G.L., Jr. (“Father”), appeals from the order entered in the
Berks County Court of Common Pleas, which granted the petition for special
relief of Appellee, A.R.L. (“Mother”) and also gave Mother sole legal and
physical custody of the parties’ minor child, A.J.L. (“Child”). We vacate and
remand for further proceedings.
The trial court sets forth the relevant facts of this case as follows:
The parties…are the natural parents of [Child.] Father
initiated a custody action on June 22, 2006, by filing a
Complaint for Custody seeking primary physical custody of
[C]hild. ….
* * *
… Following a custody trial, [the court] entered a Final
Custody Order dated September 20, 2007, granting the
parties shared legal custody of [C]hild and granting Mother
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*Retired Senior Judge assigned to the Superior Court.
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primary physical custody of [C]hild. … Father
subsequently appealed to the Superior Court of
Pennsylvania, which affirmed the trial court’s Order on
[October 16], 2008.
Most recently, the parties came to an impasse regarding
counseling for [C]hild. Mother filed a Petition for Special
Relief on August 26, 2016, seeking a court order
authorizing her to obtain counseling for [C]hild without
Father’s consent. …
* * *
Th[e c]ourt scheduled a hearing on Mother’s Petition for
Special Relief on September 6, 2016. During an off-the-
record discussion with counsel for the parties,¹ it appeared
to the [c]ourt that there was no factual dispute as to the
allegations in Mother’s Petition. Accordingly, [the] [c]ourt
entered [an] Order…granting Mother sole legal and primary
physical custody of [C]hild and allowing Mother to obtain
counseling for [C]hild without Father’s consent.
¹ As this matter was resolved off the record, there is
no transcript of the proceedings.
(Trial Court Opinion, filed November 1, 2016, at 1-3).1 Father filed a timely
notice of appeal on September 29, 2016.2
Father raises the following issues for our review:
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1
Nothing in the court’s order indicates the order was intended to be either
temporary or without prejudice, as the court stated in its opinion.
2
Father did not file a concise statement of errors contemporaneously with
his notice of appeal per Pa.R.A.P. 1925(a)(2)(i). Rather, Father filed a Rule
1925 concise statement on October 8, 2016. We decline to find waiver for
Father’s technical noncompliance with the rules. See J.P. v. S.P., 991 A.2d
904 (Pa.Super. 2010) (explaining failure to file concise statement with notice
of appeal constitutes defective notice of appeal, which court can dispose of
on case-by-case basis; declining to find waiver of issues for technical
violation of procedural rules outlined in Rule 1925(a)(2)(i)).
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DID THE TRIAL COURT ERR IN FAILING TO CONSIDER
AND FULLY ANALYZE ALL OF THE 23 PA.C.S.[A.] § 5328(A)
FACTORS IN RENDERING ITS DECISION TO CHANGE
CUSTODY AS REQUIRED BY LAW?
DID THE TRIAL COURT ERR IN FAILING TO DELINEATE
THE REASONS FOR ITS AWARD OF CUSTODY ON THE
RECORD IN OPEN COURT OR IN A WRITTEN OPINION OR
ORDER?
DID THE TRIAL COURT ERR IN ORDERING A CHANGE IN
CUSTODY AT THE HEARING ON [MOTHER]’S PETITION FOR
SPECIAL RELIEF, WHEREIN NEITHER PARTY RAISED,
REQUESTED, OR CONTEMPLATED A CHANGE IN CUSTODY?
DID THE TRIAL COURT ERR BY NOT ALLOWING A FULL
AND FAIR HEARING ON THE RECORD?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
GRANTING [MOTHER] SOLE LEGAL AND PHYSICAL
CUSTODY?
(Father’s Brief at 2).
In his issues combined, Father argues the trial court failed to consider
each of the custody factors under 23 Pa.C.S.A. § 5328(a) before it gave
Mother sole legal and physical custody of Child. Father asserts the court
also failed to delineate its reasons for granting Mother sole custody. Father
maintains he had no notice that a change of custody was at issue because
Mother did not request a change in custody in her petition. Father avers the
court also failed to conduct a full evidentiary hearing on Mother’s petition;
the parties did not present evidence and testimony. Father contends the
court granted Mother’s petition and gave Mother sole custody of Child after
only a discussion with counsel off the record. Father submits this record
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does not support the trial court’s order. Father concludes this Court should
vacate and remand for further proceedings. We agree.
Our scope and standard of review of a custody order are as follows:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it…. However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination…. Thus, an appellate court is empowered to
determine whether the trial court’s incontrovertible factual
findings support its factual conclusions, but it may not
interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings;
and thus, represent a gross abuse of discretion.
A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (quoting R.M.G., Jr. v.
F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009)).
When deciding an award of custody, the court must conduct a
thorough analysis of the best interests of the child based on the factors set
forth in the Child Custody Act (“Act”). E.D. v. M.P., 33 A.3d 73 (Pa.Super.
2011). “All of the factors listed in [S]ection 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
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.A. § 5323(d). “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
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(Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A
court’s explanation of the reasons for its decision, which adequately
addresses the relevant custody factors, complies with Section 5323(d). Id.
A trial court “may not permanently modify a custody order without
having a petition for modification before it.” Langendorfer v. Spearman,
797 A.2d 303, 308 (Pa.Super. 2002). A party’s due process rights are
violated where that party “had no notice that custody would be at issue in
the proceedings,” after which the court modified custody. Id. at 309.
Notice, in our adversarial process, ensures that each party
is provided adequate opportunity to prepare and thereafter
properly advocate its position, ultimately exposing all
relevant factors from which the finder of fact may make an
informed judgment. Without notice to the parties that
custody [i]s at issue, the trial court [can]not assume that
the parties ha[d] either sufficiently exposed the relevant
facts or properly argued their significance. Consequently[,
in the absence of notice,] 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 [one
party].
Id. (internal citations and quotations omitted).
Instantly, Mother filed a petition for special relief, in which she sought
court permission for Child to participate in counseling without Father’s
consent. In her petition, Mother did not ask the court to modify the parties’
custody of Child. The court’s proceeding on Mother’s petition consisted of an
off-the-record discussion with counsel; the parties presented no evidence
and testimony. No transcript of the event exists. The court entered an
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order that granted Mother’s petition and gave her sole legal and physical
custody of Child, without providing its reasons for the order either on the
record or in a written opinion.
The record lacks support for the trial court’s order granting Mother’s
petition. We have no transcript of the proceeding on Mother’s petition and
no evidence to support Mother’s position. See A.V., supra.3 Further, the
trial court erred when it gave Mother sole legal and physical custody, where
Father had no notice that custody was at issue and Mother did not request in
her petition that the court modify custody. See Lagendorfer, supra. Even
if Father had been given proper notice concerning a requested change in
custody, the court should have held a hearing, recited its rationale, and
demonstrated it had considered all of the Section 5328(a) factors before it
modified custody. See J.R.M., supra; 23 Pa.C.S.A. § 5323(d), supra.
Based upon the foregoing, we vacate and remand for a full hearing on
Mother’s petition for special relief.4
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3
In its Rule 1925(a) opinion, the trial court acknowledged it erred when it
failed to conduct a full evidentiary hearing on Mother’s petition and when it
gave Mother sole custody of Child without providing its reasons.
Accordingly, the court asked us to remand this case for a full and fair
evidentiary hearing on Mother’s petition.
4
If either party wishes to modify custody, that party must follow proper
procedure and provide the other party with adequate notice of the custody
modification request. See Langendorfer, supra.
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Order vacated; case remanded. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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