J-A19032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
T.C.M., :
:
Appellant : No. 745 EDA 2017
Appeal from the Order entered January 26, 2017
in the Court of Common Pleas of Montgomery County,
Civil Division, No(s): 2016-09945
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 21, 2017
T.C.M. (“Father”) appeals from the Order (hereinafter, “the Custody
Order”) granting J.M. (“Mother”) primary physical custody, and shared legal
custody, of K.M. (born in November 2000), A.M. (born in August 2003), and
L.M. (born in October 2006) (collectively, “the Children”), and granting Father
partial physical custody and shared legal custody.1 We affirm.
The trial court summarized the relevant factual and procedural history
of this appeal, which we incorporate as though fully set forth herein. See
Trial Court Findings of Fact, 1/26/17, at 1-4.
The trial court entered the Custody Order on January 26, 2017. On the
same date, the court issued its Findings of Fact, wherein it addressed the
seventeen custody factors (hereinafter, “the best interest factors”) set forth in
1
The Custody Order provided that, during the Children’s summer vacation
from school, Father and Mother shall have shared physical custody.
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subsection 5328(a) of the Child Custody Act (“the Act”). See 23 Pa.C.S.A.
§ 5328(a).
Father timely filed a Notice of Appeal, followed by a court-ordered
Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of
errors complained of on appeal, presenting eighteen separate issues. The
trial court then issued a Pa.R.A.P. 1925(a) Opinion (hereinafter, the “Rule
1925(a) Opinion”).
Father now presents the following questions for our review:
A. Whether the [trial] court abused its discretion and committed
an error of law in weighing the [best interest] factors by
granting [] Mother primary custody of the Children?
B. Whether the [trial] court properly applied the [best interest]
factors in analyzing the best interests of the Children?
C. Whether the [trial] court abused its discretion and committed
an error of law in denying [] Father the opportunity to
participate in the Children’s daily lives?
D. Whether the [trial] court deviated from applicable standards
in establishing a schedule of when [] Father would be able to
have physical custody of the Children individually and
together?
Father’s Brief at 5-6 (issues renumbered for ease of disposition, capitalization
omitted).
“We review [a] trial court’s custody order for an abuse of discretion.”
M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super. 2017). In conducting this
review,
[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
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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). This Court has further explained that
[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, the primary concern is the best interests of the
child. See 23 Pa.C.S.A. §§ 5328, 5338; see also M.G., 155 A.3d at 1091.
In assessing the child’s best interest, the trial court must consider the best
interest factors, enumerated at subsection 5328(a) 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, 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.
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(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.
23 Pa.C.S.A. § 5328. “All of the [best interest] factors … 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).
Subsection 5323(d) of the Act 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). “In
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
[best interest] 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); see also id. (stating that “[a] court’s explanation of reasons for its
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decision, which adequately addresses the relevant factors, complies with
Section 5323(d).”).
Here, we will address Father’s first three issues together, as they are
closely related, and all essentially challenge the trial court’s weighing of the
best interest factors.
In his first issue, Father contends that the trial court “erred in making
factual findings that suggested that both Mother and Father were capable of
[exercising] primary physical custody, but then granted [primary] physical
custody to [] Mother.” Father’s Brief at 16. Father additionally argues that
“[t]he [trial] court’s findings of fact[] are not reasoned, and instead, make
prejudicial statements in favor of [] Mother, such as ‘Mother worked as the
CEO of the family.’ The [trial] court frowned upon [] Father being a surgeon
and physician.” Id. at 17-18 (quoting Trial Court Findings of Fact, 1/26/17,
at 9).
In his second issue, Father asserts that the trial court improperly
applied the best interest factors in analyzing the best interests of the
Children. Father’s Brief at 18. Father urges that “[t]here is no dispute that
[he] is able, available and wanted to have physical custody of the Children[,
yet he] … was only entitled to one overnight per week with all three Children
at the same time.” Id. at 21; see also id. at 22, 23 (asserting that such
custody schedule causes disruption in Father’s relationship with the Children
and “separation among the Children”). Father additionally argues that the
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trial court overlooked that (1) Mother made disparaging comments to the
Children concerning, inter alia, Father’s alleged alcohol abuse; (2) in
contradiction of Mother’s claim that Father is an alcoholic, Father submitted
an “expert report” opining that Father “had a low probability of having an
alcohol [] abuse” issue; and (3) paternal grandmother had often helped
Mother care for the Children. Id. at 22, 23; see also id. at 22 (asserting
that Mother’s testimony at the custody hearing was not credible).
In his third issue, Father argues that the trial court improperly denied
him the opportunity to participate in the Children’s daily lives. Id. at 30.
According to Father,
[t]here is no evidence in the record that [he] did not participate in
the Children’s daily well-being. The [trial] court stated in its [Rule
1925(a)] [O]pinion that the “majority of the household duties had
always been, and currently were still, performed by Mother.”
“Household duties” is not a statutory factor in awarding primary
physical custody. Such an arbitrary statement punishes [] Father
for being a physician and surgeon.
***
Moreover, if [] Father is able to maintain fifty percent [physical]
custody during the summer, when there are still household chores
to be done and [] Father still works, it is unreasonable to suggest
that the factors must change during the school year.
Id. at 32-33 (citations omitted). Father further points out that the trial court
found that “Father is also an involved, loving, doting parent[,] who attends to
the[] [Children’s] activities, participates in school programs and always
makes time to engage with the [C]hildren.” Id. at 34 (quoting Rule 1925(a)
Opinion, 3/31/17, at 15). Father contends that this finding “contradicts” the
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trial court’s awarding primary physical custody to Mother. Father’s Brief at
34.
In its Findings of Fact, the trial court thoroughly addressed all of the
best interest factors, and determined that it was in the Children’s best
interests to award Mother primary physical custody during the school year.
See Trial Court Findings of Fact, 1/26/17, at 4-12. Additionally, the court
addressed Father’s above-described claims in its Rule 1925(a) Opinion,
adeptly summarized the relevant law, and determined that the court did not
abuse its discretion in weighing the best interest factors, or in awarding
Mother primary physical custody during the school year. See Rule 1925(a)
Opinion, 3/31/17, at 6-9, 14-17. As the trial court’s analysis is sound, and
the record supports its factual findings, we incorporate it herein by reference.
See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court Findings of
Fact, 1/26/17, at 4-12. Like the trial court, we decline Father’s invitation to
disturb the court’s findings and weighing of the evidence, in favor of the
findings and custody arrangement that Father 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
A.V., supra (stating that a reviewing court should defer to the trial court on
issues of credibility and weight of the evidence). Accordingly, as the trial
court’s sound analysis of the best interest factors was careful and thorough,
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and we discern no abuse of the court’s discretion in fashioning a reasonable
award of physical custody that was in the Children’s best interests, we defer
to the court’s decision. See A.V., supra (stating that “[a]ppellate
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.”); see also id., supra, (stating that a reviewing court
may not interfere with a trial court’s conclusions where they are reasonable in
view of the trial court’s factual findings). We thus affirm on the basis of the
trial court’s Rule 1925(a) Opinion and Findings of Fact as to Father’s first
three issues. See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court
Findings of Fact, 1/26/17, at 4-12.
In his final issue, Father argues that the trial court rendered an
“arbitrary” physical custody award, which “was in deviation of the statutory
guideline and not in the Children’s best interests[,]” where “Father only has
[all] three Children together four times a month over a ten month period,
even though [Father] lives near [] Mother, closer to [the Children’s] school,
[and] on the bus route ….” Father’s Brief at 25-26. Father urges that
[t]he better solution to meet the Children’s best interests was …
[to award the parties] shared physical custody[, and] … a more
balanced schedule[,] where all three Children could stay with []
Father together more than four nights per month during the
school year, [which is] … a disproportionate [and] unjustified
holding. … The arbitrary decision of the [trial] court does not
reflect the reasoning as to why [] Father can have the Children
together 4 nights [per month] during ten months out of the year,
and fifteen nights [per month] for two summer months.
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Id. at 29.
In its Rule 1925(a) Opinion, the trial court explained that it (1) had
considered the Children’s “articulate and well reasoned” desires for a physical
custody schedule that was best suited to their respective individual needs;
and (2) was cognizant that the court had fashioned an unconventional
custody schedule, whereby the Children were not always together during
Father’s custodial time, and each had a slightly different schedule. See Rule
1925(a) Opinion, 3/31/17, at 10-11. The court determined that,
nevertheless, it was appropriate, and in the Children’s respective best
interests, to employ a physical custody schedule that the Children expressed
they prefer, even though it does not ensure that the Children are all together
at all times. Id. The trial court’s reasoning is sound and supported by the
record, and we discern no abuse of the court’s discretion in finding that the
unconventional physical custody schedule put into place was in the Children’s
best interests.2 Accordingly, we affirm on this basis in rejecting Father’s final
issue. See id.
Order affirmed.
2
Our determination is unaltered by Father’s pointing out that that he was
awarded shared physical custody during the Children’s summer vacation, but
not during the remainder of the year. The trial court found that such
arrangement was the one best suited to the Children’s best interests, and
their expressed preferences. See Rule 1925(a) Opinion, 3/31/17, at 8-9
(stating, inter alia, that “the [C]hildren have a very strong preference towards
spending more time in Mother’s household during the school year in order to
provide them with consistency and stability, especially in their academic
pursuits.”); see also id. at 10-11. Contrary to Father’s assertion, this
physical custody arrangement is neither arbitrary nor unreasonable.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2017
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