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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.S.L., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
R.A.L. : No. 269 MDA 2017
Appeal from the Order entered January 20, 2017
in the Court of Common Pleas of Luzerne County,
Civil Division, No(s): 13285 of 2010
BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 15, 2017
L.S.L. (“Mother”) appeals from the Order granting R.A.L. (“Father”)
sole physical and legal custody of Z.L. (“Child”), and Mother supervised
partial physical custody of Child.1 We affirm.
In its Opinion, the trial court set forth a recitation of the protracted
procedural history, which we adopt for the purpose of this appeal.2 See Trial
Court Opinion and Order, 1/20/17, at 2-9.
Following hearings, the trial court granted Father sole legal and
physical custody of Child. The trial court also granted Mother supervised
partial physical custody and daily unsupervised phone contact with Child.
1
Also pursuant to the Order, the trial court denied Mother’s Petition for
Relocation as moot based upon its award of legal and physical custody of
Child to Father.
2
Mother and Father were married in June 2008. They each had two children
from prior relationships. Mother and Father divorced in June 2012.
Currently, Mother lives in Sunapee, New Hampshire, and Father lives in
Kingston, Pennsylvania.
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Based upon this ruling, the trial court found no basis in law to address
Mother’s Petition for Relocation. Mother filed a timely Notice of Appeal and a
Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Mother raises the following questions for our review:
I. Whether the [trial] court erred in applying the best interest
of the child standard to the factors for determining custody
per 23 Pa.C.S.A. § 5328[,] and not granting primary
physical and legal custody to [M]other[?]
II. Whether the [trial] court erred in failing to apply the
factors for determining relocation per 23 Pa.C.S.A. §
5337[,] and not granting the relocation of [C]hild to New
Hampshire[?]
III. Whether the [trial] court erred in admitting the guardian
ad litem’s report[,] and thereafter relying upon it[?]
Mother’s Brief at 3.
This Court’s standard and scope of review of custody orders is as
follows:
The 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) (citation, ellipses and
brackets omitted). Additionally, we have explained that
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[o]n issues of credibility and weight of the evidence, we defer to
the findings of the trial court[,] who has had the opportunity to
observe the proceedings and demeanor of the witnesses. The
parties cannot dictate the amount of weight the trial court places
on evidence. Rather, the paramount concern of the trial court is
the best interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the best interest
of the child was careful and thorough, and we are unable to find
any abuse of discretion. The test is whether the evidence of
record supports the trial court’s conclusions.
Id. (citations, paragraph breaks and brackets omitted); see also Ketterer
v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (stating that “[t]he
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.”)
(citation omitted).
In any custody case decided under the Child Custody Act, the
paramount concern is the best interests of the child. See 23 Pa.C.S.A.
§§ 5328, 5338; see also W.C.F. v. M.G., 115 A.3d 323, 326 (Pa. Super.
2015). In assessing the child’s best interest, the trial court must consider
the seventeen custody factors set forth in 23 Pa.C.S.A. § 5328(a). W.C.F.,
115 A.3d at 326. Section 5328(a) provides as follows:
§ 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:
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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)
(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, education 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.
“All of the factors listed in section 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 omitted). Moreover,
section 5323(d) mandates that, when the trial court awards custody, it “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). The trial court may not
merely rely upon conclusory assertions regarding its consideration of the
section 5328(a) factors in entering an order affecting custody. M.E.V. v.
F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014). However, “[i]n expressing
the reasons for its decision, 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.”
A.V., 87 A.3d at 823 (citation and quotation marks omitted).
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In her first claim, Mother contends that the trial court should have
granted her legal and physical custody of Child. Mother’s Brief at 9. Mother
argues that the trial court erroneously applied the factors set forth in section
5328. Id. at 9-10. Specifically, Mother challenges the trial court’s findings
under subsections (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13),
and (15). Mother’s Brief at 11-27.
With regard to subsection (1), Mother asserts that the trial court erred
in finding that Father was best suited to encourage contact between Child
and the other parent. Id. at 11. Mother claims that the trial court
incorrectly found that her request for relocation was an attempt to limit
contact between Child and Father. Id. Mother further claims that the trial
court failed to consider Father’s attempts to limit her contacts with Child.
Id. at 11, 12.
With regard to subsection (3), Mother claims that the trial court
erroneously found that both parties were capable of providing for the needs
of Child, and should have weighed this factor in favor of Mother. Id. at 12.
Mother argues that in her limited capacity to parent Child, she has provided
Child with clothes. Id. Mother asserts that while Father has performed
some parental duties, he relies on babysitters to supervise Child. Id. at 13.
Mother further asserts that Father has failed provide a proper car seat for
Child, and has dressed Child inappropriately on occasion. Id.
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With regard to subsection (4), Mother argues that the evidence does
not support the trial court’s finding that this factor weighs in favor of Father.
Id. Mother asserts that while the trial court pointed to numerous filings by
Mother concerning Child’s education and family life in weighing this factor in
favor of Father, it did not consider Father’s filings. Id. at 13, 15. Mother
points out that Father failed to provide her with any information involving
Child’s activities, education, or health. Id. at 13. Mother further asserts
that the trial court failed to consider her frequent trips from New Hampshire
to see Child. Id. Mother additionally claims that there were abuse
allegations made against Father. Id. at 14-15.
With regard to subsections (5) and (6), Mother asserts that the trial
court erred in finding these factors to be neutral between the parties, and
should have found that the factors weigh in favor of Mother. Id. at 15-16,
17. Mother points out that Child would live with Child’s brothers if she lived
in New Hampshire. Id. at 16. Mother claims that Father failed to present
any evidence, other than his own testimony, demonstrating Child’s
relationships with his family members. Id. at 17.
With regard to subsection (7), Mother contends that the trial court’s
finding that Child loved both parents was illogical in light of its ultimate
conclusion. Id. Mother argues that her alleged behavior did not have such
a negative impact on Child’s relationship with Father that she was prevented
from having unsupervised contact with Child. Id. Mother also asserts that
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the trial court should have given more weight to Child’s testimony that she
wanted to spend more time with Mother and attend school in New
Hampshire. Id. at 18.
With regard to subsection (8), Mother contends that the trial court
relied on evidence that is not relevant to this case. Id. Mother argues that
the only relevant issue raised by the trial court was Mother’s accusation that
Father could not properly care for Child. Id. at 18-19. Mother again claims
that the mere filing of a request for relocation does not evidence her intent
to limit contact between Father and Child. Id. at 19.
With regard to subsection (9), Mother asserts that the trial court erred
in finding that this factor weighs in favor of Father based solely upon
negative actions by Mother. Id. at 19-20.
With regard to subsection (10), Mother argues that the trial court’s
finding that both parents are able to attend to the daily needs of Child was
erroneous. Id. at 20. Mother asserts that there were legitimate concerns
regarding Child’s car seat and Father’s inattention to Child’s health care
needs. Id. at 20-22; see also id. at 21 (wherein Mother argues that
Father’s allegations that Mother takes Child on too many unnecessary doctor
appointments is not supported by the record). Mother claims that Father did
not adequately deal with Child’s bullying concerns at school and cannot
name any of Child’s friends. Id. at 21. Mother additionally argues that
Father did not present any evidence of Child’s life, and does not exhibit an
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understanding of the value of Mother’s presence in Child’s home life. Id. at
20, 22-23. Mother contends that the trial court merely emphasized her
actions without considering Father’s negative impact on Child. Id. at 23, 24.
With regard to subsection (11), Mother argues that the trial court
erred in finding that this factor weighs in favor of Father based solely on the
fact that she voluntarily moved to New Hampshire. Id. at 24. Mother
asserts that the trial court failed to consider any of the reasons she moved
to New Hampshire, including to care for her elderly mother and the fact that
her two sons have established educational and social lives in that state. Id.
With regard to subsection (12), Mother contends that the trial court’s
conclusion that her move to New Hampshire prevented her from making
child care arrangements was illogical. Id. at 24-25, 26. Mother argues that
the evidence demonstrated that she could provide care for Child when she is
not in school. Id. at 25. Mother further claims that Father allows Child to
“amuse herself” while he works and uses a large variety of babysitters. Id.
With regard to subsection (13), Mother claims that the trial court erred
in weighing the factor in favor of Father. Id. at 26-27. Mother argues that
the trial court improperly relied upon prior decisions in the case to find that
she was at fault for the animosity between the parties. Id. at 26. Mother
contends that she undertook various actions to protect Child. Id. at 27.
With regard to subsection (15), Mother claims that contrary to the trial
court’s finding that it needed more information about Mother’s mental state,
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she presented evidence indicating that she was receiving treatment from two
separate counselors. Id.
In its Opinion, the trial court set forth the relevant testimony from the
hearings; found that Mother was non-responsive and evasive during her
testimony; addressed the best interests of Child, including an analysis of the
best interest factors; and determined that it was appropriate to award
Father sole legal and physical custody of Child. See Trial Court Opinion and
Order, 1/20/17, at 10-24, 29. We decline Mother’s invitation to disturb the
trial court’s findings and weighing of the evidence, in favor of the findings
and inferences that Mother proposes. See M.J.M. v. M.L.G., 63 A.3d 331,
337 (Pa. Super. 2013) (rejecting appellant/mother’s argument asking this
Court to reconsider the trial court’s findings and credibility determinations
with regard to the best interest factors); see also C.A.J. v. D.S.M., 136
A.3d 504, 506 (Pa. Super. 2016) (stating that “[w]e defer to the trial [court]
regarding credibility and the weight of the evidence.”). Further, our review
of the record reveals that the trial court’s findings of fact and cogent analysis
are supported by the record. See C.A.J., 136 A.3d at 506 (stating that this
Court cannot reweigh the evidence supporting the trial court’s
determinations so long as there is evidence to support the findings).
Therefore, we conclude that the trial court did not abuse its discretion, and
we defer to its custody decision. See Trial Court Opinion and Order,
1/20/17, at 10-24, 29; see also A.V., supra (stating that “[a]ppellate
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interference is unwarranted if the trial court’s consideration of the best
interest of the child was careful and thorough, and we are unable to find any
abuse of discretion.”).
In her second claim, Mother contends that the trial court erred by
failing to apply the relocation factors at 23 Pa.C.S.A. § 5337. Mother’s Brief
at 28. Mother argues that a review of the factors would have led the trial
court to grant relocation. Id. at 29-32.3
Here, the trial court ordered that, because Father retained both legal
and physical custody of Child, “there is no reason or basis in law for the
court to address [] Mother’s Petition for Relocation.” Trial Court Opinion and
Order, 1/20/17, at 25. We discern no abuse of discretion, as the issue of
relocation became moot based upon the fact that Child would not be moving
and would continue to reside in Pennsylvania. See, e.g., D.K. v. S.P.K.,
102 A.3d 467, 472 (Pa. Super. 2014) (noting that the relocation provisions
set forth in section 5337 must be addressed where a change in residence of
the child affected the non-relocating parent’s ability to exercise custodial
rights).
3
We note that with regard to some of the factors listed in section 5337,
Mother incorporates her argument from the first issue on appeal. See, e.g.,
Mother’s Brief at 30, 32. It is well-settled that incorporation by reference
does not constitute a properly developed argument. See Hrinkevich v.
Hrinkevich, 676 A.2d 237, 241 (Pa. Super. 1996); see also
Commonwealth v. Briggs, 12 A.3d 291, 342–343 (Pa. 2011).
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In her third claim, Mother contends that the trial court erred in
admitting and relying upon the guardian ad litem’s report. Mother’s Brief at
32, 36, 37-38. Mother argues that the report primarily reiterates
information that had been established in prior proceedings and was thus
irrelevant. Id. at 33-35. Mother further argues that even if the report was
relevant, it was cumulative of other evidence and should not have been
given any weight by the trial court. Id. at 35, 37. Mother also claims that
the guardian did not conduct an extensive and thorough investigation prior
to producing the report as required by 23 Pa.C.S.A. § 5334. Mother’s Brief
at 36-37.
Here, Mother failed to raise this claim in her Rule 1925(b) Concise
Statement. Thus, the claim is waived on appeal. See Ramer v. Ramer,
914 A.2d 894, 902 (Pa. Super. 2006) (concluding that mother’s claim in a
custody case was waived on appeal because it had not been raised in her
Rule 1925(b) statement); see also Pa.R.A.P. 1925(b)(4)(vii).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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Circulated 07/21/2017 03:07 PM