J-A18015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.M.X. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
A.N.C. : No. 323 WDA 2020
Appeal from the Order Entered January 27, 2020
In the Court of Common Pleas of McKean County Civil Division at No(s):
No. 1019 CD 2018
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 13, 2020
K.M.X. (Father) appeals from the order, entered January 27, 2020, that
awarded Father and A.N.C. (Mother) shared legal custody of the parties’ son,
D.M.D.C. (Child), born in March of 2017. The order also sets forth the physical
custody arrangements, which are extensive due to the parties’ present
residences with Mother located in the state of Washington and Father living in
Pennsylvania. After review, we affirm.
In its opinion and order issued on January 27, 2020, the trial court
provided information on the procedural history of this case and a list of
findings of fact. This matter began in Pennsylvania when Father filed a petition
for contempt against Mother on December 27, 2018. A short time later, Father
filed a petition for emergency custody. By that time, the trial court here
assumed jurisdiction and deemed Father’s filings to be a petition to modify
custody. Mother responded by filing preliminary objections, asserting that
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Washington, not Pennsylvania, had jurisdiction. After consultation with the
court in Washington, that court relinquished jurisdiction and Mother’s
preliminary objections were dismissed. A conference and mediation ensued,
ending without an agreement. Trial was held on November 22, 2019, and
resulted in the opinion and order presently on appeal.
In its findings, the trial court stated that Father lived in Port Allegany,
Pennsylvania, with his older son and Child, when Child is in his custody.
Mother resided in Tacoma, Washington, with her maternal grandparents and
Child, when Child is in her custody. The court noted that for a short time in
2018, she lived with Father and then in an apartment nearby. The trial court’s
opinion then set forth the following findings:
4. Child was born out of wedlock.
5. Under the current custody order dated December 29, 2017[,]
the parties share legal custody[,] and physical custody is split
between Mother and Father. Child is scheduled to live with Mother
except when residing with Father. Father is permitted one full
week with Child, per visit, upon giving advance notice of at least
30 days. Father is also to have Child from June 20th to August
15th, Father’s Day, Thanksgiving in odd numbered years[,]
Christmas in even numbered years and on Child’s birthday in even
numbered years. The parties have not been follow[ing] this
parenting plan (court order) since at least April 2018.
6. Father is a disabled veteran. He receives monthly disability
payments from the military. His monthly income is approximately
$3,000.
7. Mother works at Johnny[’]s at Fife. Her work hours are
Wednesday/Thursday[]11 a.m. to 6 p.m., Friday 3 p.m. to 9
p.m.[,] Saturday and Sunday 8 a.m. to 3 p.m. Her monthly
income is approximately $1,000.
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8. Father was charged with negligent driving (DUI) in 2015.
9. Mother was charged with several motor vehicle violations in
January 2018 including Driving Under the Influence of Alcohol.
She was placed on electronic home monitoring with alcohol sensor
for 15 days and ordered to pay fines and costs. She completed
her sentence on April 30, 2019.
10. Mother and Father live approximately 2200 miles apart.
11. Mother has extended family living in and around Tacoma
including her mother, a sister, a brother, grandparents and
numerous nieces and nephews[.] Mother has a boyfriend with
whom she does not live but occasionally spends overnights.
12. Mother appears to be in good physical and mental health.
Mother has smoked marijuana and abused alcohol. She reports
that she is no longer doing so. She is 27 years old.
13. Father has extended family living in and around Port Allegany
including a brother and many nieces and nephews.
14. Father appears to be in good physical and mental health.
Notwithstanding, Father has been diagnosed with PTSD. He
receives treatment when needed from the Veterans
Administration. He has used marijuana and abused alcohol. He
states that he is no longer doing so. He is 40 years old.
15. Child has a paternal half-brother, [D.], age 11. Father and
others report that Child and his half-b[r]other are very close.
16. Father had difficulty coping with life after leaving the military.
He reports that he drank to excess, still to this day does not sleep
well and has not been in a steady relationship. He left Washington
to be near family in Pennsylvania.
17. Mother has not been without her own problems. Not until
recently did she begin making wise decisions regarding her
lifestyle. She was in an abusive relationship. She has used
alcohol as a coping mechanism. She followed Father with Child to
Pennsylvania with hope they could be a family for sake of Child.
Regrettably[,] things did not work out and Mother chose to return
to Washington.
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Trial Court Opinion and Order (TCOO), 1/27/20, at 3-4.
In addition to stating its findings of fact and identifying a list of witnesses
and exhibits presented at trial by the parties, the court considered all sixteen
factors that are set forth at 23 Pa.C.S. § 5328(a).1 The court then concluded
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1 Specifically, 23 Pa.C.S. § 5328(a) states:
(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.
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that “there is no compelling reason to award one parent substantially more
custodial time than the other.” TCOO at 12. In its order, the court directed
each party to have custody of Child for ten-week periods until the time Child
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(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.
(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).
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attains school age and, thereafter, they should comply with their 2017
parenting agreement. The court also allowed for either parent to travel to the
custodial parent’s home city and exercise partial custody for up to five days
with a two-week notice given. Additionally, the court included in its order
directions as to travel involving the exchange of custody and the cost of such
travel. The order further included liberal arrangements for regular
communication between Child and the non-custodial parent.
Father filed a timely notice of appeal and a concise statement of errors
complained of on appeal containing nine alleged errors. However, Father’s
brief lists only the following three issues:
Whether the trial court abused its discretion and erred as a matter
of law by applying a policy of the trial court in favor of shared
custody on a substantially equal basis absent evidence warranting
deviation therefrom?
Whether the trial court’s findings of fact and conclusions regarding
the sixteen custody factors were unreasonable in light of the
evidence presented?
Whether the trial court abused its discretion and erred as a matter
of law in its application of the [sixteen] custody factors and in
awarding physical custody in a manner that is not in the child’s
best interest?
Father’s brief at 6-7.
We address Father’s claims 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).
Furthermore, we note that:
The 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. Indeed, the knowledge gained by a trial
court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006)
(quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super.
2004)).
A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012). Moreover, “[w]hen a trial
court orders a form of custody, the best interest of the child is paramount.”
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (citation omitted).
In regard to his first issue, Father asserts that the trial court erred in
basing its custody decision on the “‘norm’ and ‘policy’ in favor of substantially
equal parental custody[,]” Father’s brief at 39, rather than on its
determinations relating to the sixteen custody factors listed in 23 Pa.C.S. §
5328. Father emphasizes the introduction to section 5328, which provides
that “the court shall determine the best interest of the child by considering all
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relevant factors, giving weighted consideration to those factors which affect
the safety of the child….” 23 Pa.C.S. § 5328. In response to this argument,
the trial court stated:
In his 4th fourth error complained of[,] Father asserts that
the trial [c]ourt abused its discretion and erred as a matter of law
by applying a policy “to award parents equal custody time” rather
than the best interests of the child. The trial [c]ourt did not do as
Father suggests. Father has taken the [c]ourt’s pronouncement
out of context and the trial [c]ourt concedes that its[] choice of
words could have been better. It is the policy of the trial [c]ourt
to award custody on a substantially equal basis when after
considering the factors enumerated in the Custody Act[] there is
no compelling reason to treat the parties’ custody time differently.
Neither parent has a presumption in their favor [indicating] that
custody be awarded equally. 23 Pa.C.S. § 5327(a). The trial
[c]ourt considered all the custody factors found at 23 Pa.C.S. §
5328(a) in making its determination to award [C]hild’s parents
substantially equal custody time.
Father and the trial [c]ourt do not agree on what is in Child’s
best interests. For Child to properly maintain his bond with each
parent[,] he must have a meaningful relationship with each of
them. This can best be achieved by Child spending significant
time with both parents. Father wishes to marginalize Child’s
relationship with Mother. He asserts that it is in Child’s best
interest that Child lives primarily with him. He proposed that
Mother have only two (2) to three (3) visits with Child each year
lasting not more than 10 days in her home state of Washington.
Additionally, he offered Mother custody time in Father’s home
community of Port Allegany knowing that it was not feasible for
Mother to exercise such time. Mother on the other hand proposed
that she and Father exchange custody on a quarterly basis.
Trial Court’s Pa.R.A.P. 1925(a) Opinion (TCO), 4/14/20, at 7-8. Father has
not convinced this Court that the trial court did not follow the dictates of
section 5328. The trial court explained the basis for its decision and has not
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erred or abused its discretion in constructing the custody arrangements.
Father’s first issue does not provide him with any relief.
The main thrust of Father’s arguments relevant to his second and third
issues center on his contention that the trial court did not accurately assess
the evidence presented and, therefore, could not have arrived at a
substantially equal shared custody arrangement. Specifically, Father cites
Mother’s alcohol and drug abuse, her paramour’s history of assaultive
behavior, and her attempts to move Child to Washington unilaterally. Father
also mentions evidence presented at trial dealing with Mother’s employment
history, her residency, the availability of both parents to care for Child,
Mother’s past sexual abuse of a child, the parties’ use of video calls, Child’s
sibling relationship with his half-brother, and the conflict between the parties.
Essentially, Father cites evidence in a manner that is most favorable to him.
However, based upon our review of the record, we conclude that the
trial court considered all relevant factors. We also note that its findings are
supported by the record. Father is basically requesting that we reject the trial
court’s findings and credibility determinations and accept the findings he
proposes. We cannot do so. Rather,
[w]e 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.
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J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011). Moreover, we recognize
that this must have been a difficult decision for the trial court in that each
parent loves Child and wants to develop a strong and caring relationship with
Child. As this Court has stated, “the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of record.” E.D. v.
M.P., 33 A.3d 73, 76 (Pa. Super. 2011). Because we do not determine that
the trial court’s conclusions are unreasonable in light of the sustainable
findings, which are based upon the evidence presented, we are compelled to
affirm the trial court’s decision. Father has not convinced us otherwise.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2020
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