J-A27016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
M.S.S. :
:
Appellant No. 744 WDA 2017
Appeal from the Order April 24, 2017
In the Court of Common Pleas of Clearfield County Civil Division at No(s):
No. 2013-1234 C.D.
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 5, 2018
M.S.S. (“Father”) appeals from the final custody order entered April
24, 2017, in the Court of Common Pleas of Clearfield County, which awarded
primary physical custody of the parties’ minor son, L.S. (“Child”), to L.M.S.
(“Mother”), and awarded Father partial physical custody every other
weekend. The order also awarded the parties shared legal custody. We
affirm in part and vacate in part.
The parties are the natural parents of Child, born in March of 2012.
Mother and Father were married but separated in June of 2013. On
December 12, 2013, the parties entered into a custody agreement.
Pursuant to the agreement, Mother and Father shared physical and legal
J-A27016-17
custody of Child.1 The agreement also detailed a custody schedule for the
following holidays: Christmas Eve, Christmas Day, Easter Sunday and
Thanksgiving.
The parties operated under the shared custody agreement until
December 21, 2015, when Mother filed a Petition to Modify Custody in
anticipation of Child starting kindergarten the following school year. Father
filed an answer to Mother’s Petition to Modify Custody on April 22, 2016.
After several continuances, a hearing was held on Mother’s petition on June
15, 2016. On April 24, 2017, the trial court granted Mother’s petition and
awarded her primary physical custody of Child. Father was awarded partial
physical custody every other weekend and at other such times as the parties
agree. On May 22, 2017, Father timely filed a notice of appeal and a concise
statement of errors complained of on appeal. In lieu of filing an opinion
pursuant to Rule 1925(a), the trial court referred this Court to its opinion
accompanying the subject order.
Father now raises the following issue for our review:
Whether it was unreasonable for the trial court to determine that
the need for stability and continuity in the child’s education,
family life and community life favored Mother where there was
no evidence that the distance between the parties’ residences
prevented a shared custody arrangement and there was no
____________________________________________
1
Father lives in DuBois, Pennsylvania, and Mother lives in Clearfield,
Pennsylvania, which are approximately fifteen to twenty miles apart. Trial
Court Opinion, 4/24/17, at 3.
-2-
J-A27016-17
discussion of the possible effect on the minor child of a proposed
transfer of custody?
Father’s Brief at 9 (full capitalization omitted).
We address Father’s claim mindful of our well settled standard of
review.
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).
“The primary concern in any custody case is the best interests of the
child.” J.P. v. S.P., 991 A.2d 904, 907 (Pa. Super. 2010). “The best-
interests standard, decided on a case-by-case basis, considers all factors
that legitimately have an effect upon the child’s physical, intellectual, moral,
and spiritual wellbeing.” Id. The factors to be considered by a court when
awarding custody are set forth at 23 Pa.C.S. § 5328(a) as follows:
(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:
-3-
J-A27016-17
(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, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
-4-
J-A27016-17
(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. § 5328(a).
This Court has stated that trial courts are required to consider “[a]ll of
the factors listed in section 5328(a) . . . when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).
We have further explained:
Section 5323(d) provides that a trial 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). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 (Pa. 2013). . . .
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 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 (Pa. Super. 2013), appeal
denied, 68 A.3d 909 (Pa. 2013). A court’s explanation of
-5-
J-A27016-17
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014).
Instantly, the trial court issued its decision on April 24, 2017, 2 in which
it considered all of the section 5328(a) best interest factors. Trial Court
Opinion, 4/24/17, at 2-6. The court found that the majority of the factors
weighed equally in favor of both parties, or did not weigh in favor of either
party. Trial Court Opinion, 6/26/17, at 2-6. The trial court observed that
Child has a younger half-brother who lives with Mother. Id. at 3. Upon
completing its analysis of the Section 5328(a) factors, the trial court
concluded that Child’s best interests would be served by awarding Mother
primary physical custody. Id. at 9. The court placed particular emphasis on
the fact that Child would soon be starting kindergarten and that it would be
in his best interest “that he [have] the same routine on a daily basis as he
____________________________________________
2
We observe that the trial court issued its decision 313 days after the
conclusion of the custody hearing, which fails to comply with the rules
regarding prompt disposition of custody cases. See Pa.R.C.P. 1915.4(d)
(“The judge’s decision shall be entered and filed within 15 days
of the date upon which the trial is concluded unless, within that
time, the court extends the date for such decision by order
entered of record showing good cause for the extension. In no
event shall an extension delay the entry of the court’s decision
more than 45 days after the conclusion of trial.”).
We caution the Clearfield County Court of Common Pleas to comply with the
relevant rules for prompt disposition of decisions in custody cases.
-6-
J-A27016-17
moves into another phase of his life.” Trial Court Opinion and Order,
4/24/17, at 3.
On appeal, Father argues that the trial court erred and committed an
abuse of discretion by awarding Mother primary physical custody of Child
because Child will be enrolling in kindergarten. Father’s Brief at 28-40.
Father avers that the parties have been sharing physical custody of Child
since Child was fifteen months old and that Child “was being reared in both
homes for the majority of his life and certainly for the only period of his life
that he could remember.” Id. at 37. Accordingly, Father asserts that there
was insufficient evidence “to support a modification of the shared custody
arrangement.” Id. at 40. In support of his position, Father relies on R.S. v.
T.T., 113 A.3d 1254, 1260 (Pa. Super. 2015), in which this Court rejected
the conclusion that a “Child’s entrance into full-day schooling requires that
one parent must have primary physical custody so that Child may establish a
routine.” R.S., 113 A.3d at 1260.
In R.S., the mother filed a petition to modify the parties’ custody
agreement. The mother requested primary physical custody because the
child was entering elementary school, and she believed that the child would
be better off living with one parent in order to establish a routine. R.S., 113
A.3d at 1259. Thereafter, the father filed a competing petition to modify
custody. The trial court held a hearing and entered an order granting the
mother primary physical custody during the school year and shared physical
-7-
J-A27016-17
custody over the summer months. Father filed a timely notice of appeal,
arguing that the trial court erred in finding that “both parties agree that the
current schedule requires the child to be driven in a vehicle back and forth
too frequently and that time spent doing this is not in the best interest of the
child.” Id. at 1258 (modifications in original).
On appeal, this Court agreed with the father and rejected the trial
court’s conclusion that the child’s entrance into full-day schooling in that
situation required one parent to have primary physical custody. In its
opinion, this Court explained as follows:
Mother’s concerns, while well-meaning, do not require
modification of the 2011 shared physical custody order. We
agree with Father that there appears to be no evidence of record
indicating that he agreed that Child was being driven back and
forth too frequently, or that Child’s time in transit was not in his
best interest. To the contrary, the trial court acknowledged in its
opinion that Father “submitted a post-trial proposed order
requesting a schedule of shared physical custody. The proposed
schedule for shared physical custody was the same as the
schedule established by the Order in custody dated October 3,
2011.” This is consistent with the argument of Father’s counsel
prior to trial, and with Father’s testimony, that Father would
accept a shared physical custody arrangement in lieu of primary
physical custody if the court would include “some caveats” in the
custody order to prevent Mother’s alleged attempts at alienating
Child from Father.
Additionally, the record does not support the trial court’s
conclusion that the distance between the parties’ residences
militates against a shared custody arrangement. Mother testified
that she lives within 2 miles of Child’s school, and that Father
lives approximately 14 miles away. She testified that she drives
Child to school during her periods of custody. According to
Mother, it would take Father about 35 or 40 minutes to transport
Child from Father’s home to school and/or her home. Father
disputed this claim, stating that the drive took him only 20
-8-
J-A27016-17
minutes and, sometimes, only 15 minutes. Father testified that,
under the 2011 custody schedule, he picks up Child directly from
school on Monday and Tuesday, and he is willing to continue
doing so. Additionally, Father also expressed a willingness to
allow Child to participate in a baseball league near Mother and to
attend those games.
***
Based on the foregoing, we find that the trial court abused its
discretion in determining that a shared custody schedule would
limit Child’s ability to remain in Mother’s school district,
participate in activities there, and maintain his established
friendships. Accordingly, we reject the court’s conclusion that
Child’s entrance into full-day schooling requires that one parent
must have primary physical custody so that Child may establish
a routine.
Id. at 1259-1260 (internal citations and footnotes omitted).
Notably, in R.S., the parties did not dispute that a shared-custody
schedule would be feasible. The parties agreed upon which school district
would be appropriate for the child. Furthermore, both parents had no issue
transporting the child back and forth to school based on their custody
schedule. Accordingly, this Court concluded that the trial court’s
determination that one parent was required to maintain physical custody of
the child during the school year due to child starting school was not
supported by the evidence of record. R.S., 113 A.3d at 1261.
Here, however, Father and Mother acknowledge that a shared custody
agreement could not continue once Child began kindergarten. On cross-
examination by Mother’s counsel, Father testified as follows:
[Counsel for Mother]: But you agree that the current situation
where he spends half the time with you in DuBois and half the
-9-
J-A27016-17
time here in Clearfield, that can’t continue once [Child] starts
kindergarten in a year, right?
[Father]: I understand.
N.T., 6/15/16, at 56.
Moreover, the parties do not agree on which school district Child
should attend. In conducting the Section 5328 analysis, the trial court
concluded, “The parties have not been able to reach an agreement as to
which school [Child] will attend in the fall of 2017.” Trial Court Opinion,
4/24/17, at 3. This conclusion is supported by evidence of record.
Father testified that he wants Child to attend school in DuBois and live
primarily with him in DuBois. N.T., 6/15/16, at 58. Furthermore, Father
contends that Mother works in DuBois and should be able to easily transport
Child back and forth to school in DuBois during her custodial periods. Id. at
58-59. Father contends that DuBois “has a better education system” than
Clearfield. Id. at 59-60.
Mother testified that she believes it is important for Child to attend one
school so that he is taught under one curriculum and is not confused. N.T.,
6/15/16, at 134. Mother testified that she is seeking primary physical
custody of Child so that she can “insure that the educational and emotional
needs are being met through the week.” Id. at 154. Mother’s husband,
Kenneth Wisor, also testified that he believed Child should live with him and
Mother because “[Child] is starting to go to school in a year -- stability,
really, foundation, get him started.” Id. at 167. In response to Father’s
- 10 -
J-A27016-17
statement that Clearfield School District was inferior to DuBois School
District, Mother asserted that that Clearfield provided her an appropriate
education and “properly prepared [her] for college.” Id. at 110.
Thus, the record reflects that in this case both parties are requesting
primary physical custody of Child and are not interested in a joint physical
custody arrangement; both parties agree that Child’s time can no longer be
split equally between the parties once Child becomes enrolled in school; and
the parties are unable to agree upon the appropriate school district for Child.
R.S. is clearly distinguishable from this case. Accordingly, based on the
evidence of record, we reject Father’s contention that R.S. is applicable in
the instant matter.
Given the fact that the parties have agreed that a continued joint
physical custody arrangement is not feasible, we do not discern any abuse of
discretion or error of law in the trial court’s awarding Mother primary
physical custody and shared legal custody of Child. We are cognizant of our
standard of review: “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.,
55 A.3d at 1197. Based on the evidence of record, we cannot conclude that
the trial court’s determination was unreasonable.
- 11 -
J-A27016-17
Father also argued that the order providing Mother primary physical
custody was unreasonable because it did not provide him with additional
time with Child during the summer and did not allow him an opportunity to
take Child on vacation. Appellant’s Brief at 27. We observe that the trial
court failed to make a specific ruling regarding a summer vacation schedule
in its April 24, 2017 order and opinion awarding Mother primary physical
custody of Child. Accordingly, we vacate the subject order insofar as it does
not establish a custody schedule for the summer months. We remand this
matter to the trial court for imposition of a custody schedule for the summer
months, and if necessary, further evidentiary proceedings in order to
consider a summer custody schedule that will serve Child’s best interests.
Thereafter, the court shall enter a new custody order which sets forth both a
school year and a summer custody schedule.
Order affirmed in part and vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2018
- 12 -