J-A09035-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.K.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.L.C., A/K/A A.L.D. :
:
Appellant : No. 1287 WDA 2017
Appeal from the Order Dated August 8, 2017
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD 09-8227-005
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MAY 25, 2018
A.L.D. (Mother) appeals from the custody order awarding primary
physical custody of the parties’ minor son, L.D. (Child), to D.K.D. (Father),
partial physical custody to Mother, and shared legal custody to Father and
Mother. After careful review, we affirm in part and vacate in part.
In a published opinion, a prior panel of this Court summarized the
relevant factual and procedural history of this case as follows:
Mother and Father married [i]n March [ ] 2004, separated during
2009, and divorced in March [ ] 2015. The family moved to the
Pittsburgh area two years into the marriage. The marital home
was in Imperial, Pennsylvania. Following the separation, Father,
who currently works for the Federal Bureau of Investigation
(“FBI”) Joint Terrorism Task Force, moved approximately twelve
miles from the marital residence to his parents’ home in
Burgettstown. Until Mother moved to Florida during early 2015,
she remained in the marital home with the parties’ son[, Child],
who was born of the marriage during February 2008.
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Meanwhile, following the marital breakdown, on July 1, 2009,
Father filed a petition for divorce that included a count for custody
of [Child]. The trial court entered a consent order that granted
shared legal custody and awarded Mother primary physical
custody. Father received periods of physical custody of [Child] for
two hours on Tuesday and Thursday evenings and for three hours
on alternating Saturday afternoons. The accord expressly limited
the evening custody to the marital residence. While Father was
authorized to exercise his custodial rights outside of the home
during Saturday afternoons, in reality, Mother regularly objected
to [Child] leaving the home with Father due to her concern that
the disruption would be harmful to [Child’s] condition.[1] Father
generally acquiesced to Mother’s demands and exercised weekend
custody at the marital residence.
On September 25, 2014, Father filed a petition to modify the
consent order. He sought larger periods of physical custody, more
specific vacation and holiday schedules, and better enforcement
of his custodial rights. Approximately one month later, Mother
countered by issuing notice of her proposed relocation to
Ocklawaha, Florida, so that she and [Child] could reside with her
mother (“Maternal Grandmother”).
Father opposed the proposed relocation, and the trial court held a
two-day trial on the parties’ respective petitions. Mother and
Maternal Grandmother testified in support of the proposed
relocation. Father testified on his own behalf and presented
[Child’s pediatrician], and his parents (“Paternal Grandparents”)
as witnesses. Following the testimony and review of the parties’
proposed findings of fact, on March 20, 2015, the trial court denied
Mother’s proposed relocation. The trial court delineated the
reasons for its decision, and addressed the ten relocation factors
under 23 Pa.C.S. § 5337(h), reproduced infra. It found that the
only factor that militated in favor of relocation concerned the
anticipated enhancement to Mother’s quality of life. The
remaining factors, including consideration of [Child’s] quality of
life, either weighed against relocation, were determined to be
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1 Child is diagnosed with Pervasive Development Disorder, a nonspecific
descriptive diagnosis within the autism spectrum of developmental delays in
two or more areas. D.K.D. v. A.L.C., 141 A.3d 566, 569 n.1 (Pa. Super.
2016).
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neutral, or were inapplicable. In sum, the court reasoned, “While
Mother demonstrated that relocating to Florida would enhance her
general quality of life, she failed to meet her burden that
relocation is in [Child’s] best interest.” Findings of Fact, 3/23/05,
at 15.
In addition, the trial court granted Father’s motion to modify the
custody arrangement. It alleviated Mother’s precondition that
Father exercise custody at the marital home and fashioned a
custody schedule that increased Father’s periods of physical
custody gradually over four months. The expansion culminated
with Father exercising overnight custody on alternating weekends
from Friday evening until Sunday evening. The court also outlined
a defined custody schedule for [Child’s] academic breaks,
holidays, and summer vacation.
On April 8, 2015, Mother filed a motion for reconsideration and a
motion for special relief. The motion for reconsideration noted
that the trial court had not established a custody schedule in the
event that Mother elected to relocate to Florida without her son.
The concomitant motion for special relief informed the court that,
while the court’s decision was pending, Mother, who attained a
Juris Doctor degree, had accepted a job in Florida as a claims
assistant at the Department of Veterans Affairs and had devised
an interim plan for Maternal Grandmother to care for [Child] in
the marital residence while she began immediate employment.
Mother continued that she intended to purchase a home in Florida
in anticipation of the trial court’s reconsideration of its denial of
her prior petition for relocation. Specifically, she averred, “Mother
plans to have a home purchased in the geographic area of her
employer in which she and her mother will live, with, if the Court
permits, the child.” Petition for Special Relief, 4/15/15, at 3.
Mother asserted that the employment offer was a significant factor
that was not of record during the prior hearing and she contended
that “other significant changes have occurred,” which she failed to
identify in the petition. Id. at 2. Mother requested that the court
re-open the record to take additional evidence relative to her
relocation.
Within the thirty-day period to appeal the March 23, 2015 custody
order, the trial court granted Mother’s motion to reconsider,
reopened the record, and scheduled an evidentiary hearing for
June 2015. In light of the court’s decision to reopen the record,
Father submitted a motion to amend his original petition for
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modification in order to address Mother’s acceptance of
employment in Florida. The trial court granted Father’s motion to
amend. Thereafter, Mother issued an amended notice of
relocation proposing to relocate with [Child] to Treasure Island,
Florida, approximately two hours away from Maternal
Grandmother’s home. Again, Father opposed relocation.
On July 1, 2015, the trial court convened a third day of trial to
address Father’s amended motion for modification and Mother’s
amended relocation petition. Mother and Maternal Grandmother
again testified in favor of relocation. Father and his parents
testified in opposition to relocation and in favor of granting Father
primary physical custody of the child in Pennsylvania. On August
3, 2015, the trial court issued amended findings of fact and
entered a custody order granting Mother’s request to relocate with
[Child] to Treasure Island, Florida.
D.K.D. v. A.L.C., 141 A.3d 566, 569-571 (Pa. Super. 2016).
Father appealed and this Court reversed the trial court’s decision to
grant Mother’s petition for relocation. See id. at 579-580. Specifically, we
held that the trial court erred in its consideration of five out of the ten factors
listed in 23 Pa.C.S.A. § 5337(h). Id. Accordingly, because the evidence
demonstrated that the trial court’s conclusions were unreasonable, this Court
held that it was against Child’s best interest to relocate to Florida. Id. at 580.
Mother filed a motion requesting reargument and/or reconsideration, which
this Court denied on July 28, 2016.
Thereafter, on August 12, 2016, Mother filed a motion to stay this
Court’s decision with the trial court. In her motion, Mother alleged that Child
was thriving in Florida and that it would be “traumatizing for the child,
emotionally and psychologically, to immediately reverse the existing custody
or to remove the child from Mother. . . .” Motion for Stay, 8/12/16, ¶ 16.
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That same day, the trial court denied Mother’s motion to stay and issued an
order of court awarding Father primary physical custody of Child. Child has
resided with Father since August 2016.
On August 16, 2016, Mother filed a petition for modification of custody,
requesting that the trial court award her primary physical custody and sole
legal custody of Child. The trial court scheduled the matter for trial and
entered an interim order detailing the terms of Father’s primary physical
custody and Mother’s partial custody. A three-day trial commenced on August
4, 2017. Mother testified on her own behalf and presented the testimony of
Maternal Grandmother; Angie Hadley, the children’s director for Children’s
Ministry and the Christian play group at Mother’s church; Anthony Biork,
Child’s scout den leader; Colleen Kilen, a member of Mother’s church;
Shakorya Hansen, Child’s teacher at the YMCA after-school program; Sean
Leonard, Mother’s friend; and Dean Hoskin, the recreational director at
Mother’s church. Father also testified on his own behalf and presented the
testimony of Child’s paternal grandparents; and Dr. Joseph Greenberg, a
clinical psychologist who conducted a psychological evaluation of Mother and
Father. The trial court also conducted an in camera interview of Child.
At the conclusion of trial, the court orally denied Mother’s petition to
modify custody and awarded Father primary physical custody of Child. Mother
was awarded partial physical custody of Child every weekend Child has off
from school on a Monday or Friday. The trial court memorialized its findings
in an order entered on August 8, 2017. Mother timely filed a notice of appeal
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on September 7, 2017, along with a concise statement of errors complained
of on appeal.
Mother presents the following issues for our review:
1. DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION, A
DISREGARD OF COMPETENT EVIDENCE, AND ERRORS OF LAW,
IN NOT ACKNOWLEDGING THE RECORD OF THE SUPERIOR
COURT DECISION AND ORDER, IN FAILING TO EXERCISE ITS
OWN JUDGMENT AND LEGAL AUTHORITY IN THE
IMPLEMENTATION OF THE SUPERIOR COURT ORDER, THEN IN
ADDRESSING MOTHER’S MODIFICATION PETITION,
RESULTING IN A DISREGARD OF THE BEST INTERESTS OF THE
MINOR CHILD?
2. DID THE TRIAL COURT IN ITS INTERIM ORDERS, AND AUGUST
8, 2017, ORDER, ABUSE ITS DISCRETION BY APPLYING
FACTORS IN A LIGHT MOST FAVORABLE TO FATHER,
EXERCISED A GENDER BIAS AGAINST [MOTHER], MADE
FINDINGS AGAINST [MOTHER] THAT WERE WHOLLY
UNSUBSTANTIATED AND UNSUPPORTED BY COMPETENT
EVIDENCE, WHILE FAILING TO CONSIDER THE MOTHER-SON
RELATIONSHIP, [MOTHER’S] ROLE AS PRIMARY CARETAKER
OF THE MINOR CHILD, AND, FATHER’S HISTORY OF CHRONIC
NEGLECT OF THE CHILD?
3. DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
AND ERRORS OF LAW IN ITS APPLICATION, AND LACK OF
APPLICATION, OF THE BEST INTEREST FACTORS OF 23
PA.C.S.[A. §] 5328(A)(1)-(16) IN DENYING [MOTHER’S]
MOTION TO MODIFY CUSTODY?
Mother’s Brief at 6.
We address Mother’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
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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 Child Custody Act (the Custody Act), 23 Pa.C.S.A. §§ 5321-5340,
governs all custody proceedings commenced after January 24, 2011. E.D. v.
M.P., 33 A.3d 73, 77 (Pa. Super. 2011). “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.
In awarding custody, the Custody Act requires a trial court to determine
the best interests of the child after considering all relevant factors, including
certain statutory factors:
(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
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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.
(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.
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(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(a).
We have 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 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).
In her first issue, Mother alleges that the trial court improperly
considered this Court’s prior decision when it denied Mother’s petition to
modify custody. Mother’s Brief at 13-14. Mother asserts that it was error for
the trial court to consider the Superior Court’s decision, and that the trial
court’s error “resulted in the [t]rial [c]ourt becoming predisposed to rule
against Mother, resulting in a disregard of [Child’s] best interests.” Id. at 14.
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We find that Mother has waived this issue on appeal. Pennsylvania
courts have long held:
In order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim which was
not called to the trial court’s attention at a time when any error
committed could have been corrected. In this jurisdiction . . . one
must object to errors, improprieties or irregularities at the earliest
possible stage of the adjudicatory process to afford the jurist
hearing the case the first occasion to remedy the wrong and
possibly avoid an unnecessary appeal to complain of the matter.
In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (citations omitted). In
this case, this Court’s prior decision was referenced repeatedly throughout the
subject proceedings by both Mother’s and Father’s counsel, and by the trial
court. At no point did Mother object to the trial court’s consideration of this
Court’s earlier findings or seek its admission for a limited purpose. Thus, this
claim is waived. S.C.B., 990 A.2d at 767.
Additionally, Mother contends that the trial court erred in denying her
motion to stay without conducting a hearing. Mother’s Brief at 14-15.
Mother’s contention, however is beyond our jurisdictional mandate.
Pennsylvania Rule of Appellate Procedure 903 requires that a party file an
appeal “within 30 days after the entry of the order from which the appeal is
taken.” Pa.R.A.P. 903(a). As the 30-day period is jurisdictional in nature, it
must be strictly construed. Sass v. AmTrust Bank, 74 A.3d 1054, 1063 (Pa.
Super. 2013) (“Our Courts have reaffirmed on countless occasions that
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timeliness is jurisdictional, as an untimely appeal divests this Court of
jurisdiction to hear the merits of the case.”).
Here, the order Mother complains of was entered on August 12, 2016.
Accordingly, Mother had 30 days, or until September 12, 2016, to file a notice
of appeal. As Mother is challenging this order now, over a year after the order
became final, this contention is untimely. We therefore lack jurisdiction to
address Mother’s challenge to the trial court’s order denying her motion to
stay without a hearing.
Next, Mother asserts that the trial court’s custody determination was
made based on “gender bias against Mother.” Mother’s Brief at 25. Mother
highlights four instances of perceived bias and asserts that the trial court’s
order should be reversed. Mother asserts: 1) the trial court failed to consider
that Mother was Child’s primary caregiver for over eight years and that Father
has only had primary custody of Child since August 2016; 2) the trial court
inquired into Mother’s finances, but did not make the same inquiry for Father;
3) the trial court “boldly adopted” the belief that Mother moved to Florida out
of her own desire and ignored testimony Mother had a job in her home state
of Florida and that Father left Child when he was 18 months old to focus on
his career; and 4) the trial court abused its discretion by awarding Mother less
partial custody time with Child than Father received when Mother had primary
physical custody of Child. Id. at 25-30.
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In our prior decision, this Court rejected the same assertion raised by
Father, and we reject the present claim for the identical reason, i.e., “the trial
court’s decision is . . . clearly not the product of gender-bias.” D.K.D. v.
A.L.C., 141 A.3d at 572. We stated:
[G]ender-neutral custody considerations are well ensconced in
Pennsylvania jurisprudence, and the Custody Law does not
countenance presumptions between parents based upon gender
or any other characteristics. See 23 Pa.C.S. § 5327(a) (“In any
action regarding the custody of the child between the parents of
the child, there shall be no presumption that custody should be
awarded to a particular parent.”).
Id.
We disagree with Mother’s characterization of the trial court’s analysis.
In actuality, the certified record demonstrates that the trial court weighed all
the facts presented, along with the statutory mandates, and concluded that it
would be in Child’s best interest to remain in Father’s primary custody. As the
notion that the trial court’s determination was the product of gender-bias is
baseless, no relief is due.
Mother’s final issue presents a challenge to the trial court’s application,
and lack of application, of the best interest custody factors under Section
5328(a) of the Custody Act. Mother’s Brief at 31. Mother takes issue with the
trial court’s findings with respect to factors 1-5 and 7-13. Id. at 32-56.
Mother contends that the evidence of record does not support the trial court’s
decision to deny her request for primary physical custody. Mother challenges
several findings made by the trial court and the testimony of Dr. Joseph
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Greenberg, the clinical psychologist appointed by the court to perform a
psychological evaluation of the parties.
The trial court issued its decision at the conclusion of the custody
hearing on August 8, 2017, with consideration of the Section 5328(a) best
interest factors. N.T., 8/8/17, at 32-62. Ultimately, the trial court concluded
that Child’s best interest would be served by awarding Father primary physical
custody. In discussing the factors, the trial court noted that Mother and Father
were equally capable of providing for Child and that Child is “thriving and
equally connected to friends and activities in both environments.” N.T.,
8/8/17, at 39. However, the court expressed its concern that Mother was
influencing Child’s preference and was less likely to encourage contact
between Father and Child. Id. at 32-38, 43-45.
Although the court is required to give “weighted consideration to those
factors which affect the safety of the child,” pursuant to 23 Pa.C.S.A. §
5328(a), we have acknowledged that the amount of weight a court gives any
one factor is almost entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331,
339 (Pa. Super. 2013). Critically, as we stated in M.J.M.:
It is within the trial court’s purview as the finder of fact to
determine which factors are most salient and critical in
each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa. Super. 2010) (“In reviewing a custody order . . . 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.”). Our decision here does
not change that.
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Id. (emphasis added).
At their core, we interpret Mother’s claims as disputes with the trial
court’s findings of fact and determinations regarding credibility and weight of
the evidence. Mother essentially questions the trial court’s conclusions and
assessments and invites this Court to re-find facts, re-weigh evidence, and/or
re-assess credibility to her view of the evidence. That is not our role as an
appellate court. Under the aforementioned standard of review applicable in
custody matters, the trial court’s findings of fact and determinations regarding
credibility and weight of the evidence may not be disturbed absent an abuse
of discretion. See C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015). As we stated in
King v. King, 889 A.2d 630, 632 (Pa. Super. 2005):
It is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether,
‘based on the evidence presented, given [sic] due deference to
the trial court’s weight and credibility determinations,’ the trial
court erred or abused its discretion. . . .
(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)).
After a thorough review of the record, we find no abuse of discretion.
The trial court exhaustively analyzed and addressed each factor under Section
5328(a). See N.T., 8/8/17, at 32-62. Its findings and determinations
regarding the custody factors are supported by competent evidence in the
record, and we will not disturb them. See C.R.F., 45 A.3d at 443; see also
E.R., 129 A.3d at 527. To the extent Mother challenges the weight attributed
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to any factor by the trial court, we likewise find no abuse of discretion. As
stated above, the amount of weight that a trial court gives to any one factor
is within its discretion. M.J.M., 63 A.3d at 339.2
Finally, Mother argues that the order awarding Father primary physical
custody was unreasonable because it did not provide her with definitive
periods of partial custody or additional time with Child during the summer and
holidays. Mother’s Brief at 22-24. We observe that the trial court failed to
make a specific ruling regarding a summer vacation and holiday schedule in
its August 8, 2017 order awarding Father primary physical custody of Child.
Likewise, the custody order fails to consider that Child will not be able to
attend extracurricular activities while in Mother’s custody, as is required by
paragraph six of the order. Accordingly, we vacate the order insofar as it does
not establish a custody schedule for the summer months or holidays. We
remand this matter to the trial court for the imposition of a custody schedule
for the summer months and holidays, and if necessary, further evidentiary
proceedings to create a summer custody schedule that will serve Child’s best
interests. Thereafter, the trial court shall enter a comprehensive, revised
custody order that sets forth both a school year and summer custody
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2 We note that, as previously stated, this Court’s role is to determine “whether
the trial court’s conclusions are unreasonable as shown by the evidence of
record.” J.R.M., 33 A.3d at 650. Here, the certified record, including more
than 600 pages of testimony, supports the trial court’s findings. Accordingly,
the trial court did not abuse its discretion.
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schedule, mindful of the fact that Child may spend time with Mother in Florida
and may not be able to attend extracurricular activities while in Mother’s
custody.
Order affirmed in part and vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2018
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