C.B. v. J.B.

CONCURRING AND DISSENTING OPINION BY

BOWES, J.:

I join the learned majority’s analysis addressing the merits of Aunt’s claims, and I concur with its decision to affirm the custody order in favor of Uncle. However, for the reasons discussed herein, I respectfully dissent from the portion of the majority opinion that fashions a non-existent statutory mandate for a trial court to set forth its consideration of the sixteen best-interest factors concomitant with the custody decision. To the extent that a timing requirement exists relating to 23 Pa.C.S. § 5328(a), it is already embedded in our decisional law.

As highlighted by our recent discussion in M.J.M. v. M.L.G., 2013 PA Super 40, 63 A.3d 331, this Court’s prior interpretations of the Child Custody Law confirms that the prevailing best practice among trial courts when entering a custody order is to concurrently delineate the reasons for their custody decisions pursuant 23 Pa.C.S. *959§ 5323(d)1 and convey their consideration of the sixteen best-interest factors pursuant to 23 Pa.C.S. § 5328(a)2. While I do not challenge the status of our decisional law, I cannot join the learned majority’s analysis in the instant case for three reasons. First, the majority’s construction of the Child Custody Law in the instant case is obiter dictum that has no bearing on its disposition. Second, as exemplified by the case at bar, the timing aspect of the majority’s proposed rulemaking is unenforceable. Finally, and from my perspective most importantly, the majority’s analysis conflates the pertinent features of 23 Pa.C.S. §§ 5323(d) and 5328(a) and employs their operative terms interchangeably in order to garner support for the proposed statutory mandate that does not otherwise exist. I address these misgivings seriatim.

First and foremost, the majority’s rule-making is obiter dictum. Black’s Law Dictionary defines obiter dictum as, “A judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).” Blace’s Law Dictionary 1100 (7th ed.1999). Herein, despite the fact that Aunt never invoked § 5323(d) as a basis to reverse the trial court, the majority’s self-styled holding espouses that “section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen factors prior to the deadline by which a litigant must file a notice of appeal.” Majority Opinion at 955. The foregoing statement is inaccurate in that the statute contains no such mandate. Moreover, it is properly classified as dictum because it was not essential to the majority’s decision and does not affect the outcome of the case, particularly since the majority found, “Aunt has not demonstrated that any of her issues were forfeited by virtue of the trial court’s approach in this case ...” Id. at 955. As the majority’s analysis is not decisional, it is not binding. Stellwagon v. Pyle, 390 Pa. 17, 133 A.2d 819 (1957) (language that goes beyond issue to be decided is considered dictum).

As the majority frankly acknowledges, this Court is not the appropriate body to create procedural rules. The Pennsylvania Constitution specifically confers the authority on our Supreme Court to promulgate rules governing the practice, procedure, and conduct of all of the courts in the Commonwealth. Pa. Const. art. V § 10(c)3; see also Commonwealth v. *960McMullen, 599 Pa. 435, 961 A.2d 842, 847 (2008) (“T[he] [Supreme] Court retains exclusive rule-making authority to establish rules of procedure.”) and Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009) (admonishing Superior Court for crafting additional Turner/Finley requirements in Commonwealth v. Friend, 896 A.2d 607, 612 (Pa.Super.2006)); Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089, 1093-1094 (2009) (“Before a mandatory rule of procedure affecting an untold number of cases is issued [by the Superior Court], it should be studied and approved by one of our procedural rules committees, and then considered by [the Supreme] Court”). Thus, it is beyond our power, as an error-correcting court to fashion procedural rules for custody courts.

Moreover, the timing aspect of the majority’s dictate is conceptually unenforceable. For instance, the appropriate remedy to correct the trial court’s failure to comply with our existing decisional law would be to remand the matter in order for the trial court to issue an opinion specifically addressing all of the enumerated factors. What, however, would be the appropriate remedy if a trial court fails to explain its thought process as to the sixteen best-interest factors before a party files its notice of appeal but, as in this case, later complies? The order merely should be affirmed or reversed on the merits. As the court eventually proffered its rationale, vacating the custody order and remanding the matter for this procedural misstep would be a futile waste of judicial resources if the order is appropriate. Reversing the underlying custody order would be draconian. It is adverse to the basic tenets underlying custody law to reverse a custody order that is undoubtedly entered in the child’s best interest simply because the trial court declined to elucidate the sixteen custody factors in a contemporaneously filed writing or an opinion issued prior to the filing of a notice of appeal. This Court’s current practice, as enforced by its internal rules, is to expedite matters. These rules promote the child’s best interest. The majority’s pronouncement may unnecessarily delay these matters. Such a consequence would be particularly excessive where, as here, the trial court articulated the basis for its decision on the record pursuant to § 5323(d), confirmed that it considered all of the relevant statutory factors prior to entering the custody order, and subsequently set forth a specific § 5328(a) analysis in its Rule 1925(a) Opinion.

When a trial court has failed to offer any rationale pursuant to § 5328(a), this Court has traditionally selected remand over reversal when fashioning a corrective measure. See E.D. v. M.P., 33 A.3d 73, 82 (Pa.Super.2011); C.R.F., III v. S.E.F., 45 A.3d 441 (Pa.Super.2012) (“remand for the trial court to render a decision applying [the relocation factors] of Section 5337(h) of the Act.”). Cf. J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super.2011) (vacating custody order and remanding for further proceedings because court required additional fact-finding). Accordingly, where the trial court actually presents a rationale for drafting a custody order that it believes achieves a child’s best interest, reversing the custody order would not only be too severe of a *961sanction for the jurist’s putative misstep, it would run contrary to the child’s best interest, the polestar of all child custody proceedings.

Finally, as it relates to the majority’s substantive rationale, the crux of my dissent is that the majority conflates the relevant aspects of § 5323(d) and § 5328(a). Notwithstanding the majority’s characterization of a statutory mandate requiring a trial court to outline its best-interest determination prior to the filing of a notice of appeal, the Child Custody Law does not require that a trial court present its § 5328(a) rationale on the record during a custody proceeding or in the custody order. Indeed, § 5328(a) does not mandate a trial court to delineate or explain anything. It simply provides that the trial court consider the sixteen factors listed in § 5328(a) in order to determine the child’s best interest.4 In reality, this Court created, in E.D. v. M.P., 33 A.3d 73, 82 (Pa.Super.2011), the requirement that a trial court express its consideration of the best-interest factors as a means to facilitate our appellate review of a custody decision. The basis of our reasoning in that case was that the trial court failed to apply § 5337(h) and § 5328(a) and the trial court’s cursory analysis of the child’s best interest impeded appellate review. Specifically, we stated, “Effective appellate review requires the trial court to consider each of the factors set forth in [the applicable sections of the custody statute] and to state both its reasoning and conclusions on the record for our review.” Id. at 81. We subsequently refined that dictate in J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super.2011) and C.R.F., III v. S.E.F., 45 A.3d 441 (Pa.Super.2012), to extend the requirement to all of the best-interest and relocation factors. We ultimately concluded, “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. supra at 654 (emphasis in original). Thus, to be clear, the requirement that a trial court address its consideration of the sixteen best-interest factors on the record to assist appellate review is unquestionably not a statutory mandate.

Having discussed the § 5328(a) requirement that a trial court consider the statutory best-interest factors in determining a child’s best interest and our case law requiring courts to express their considerations in order to assist our appellate review, I now turn to the salient case addressing the distinct statutory requirement that a trial court delineate the reasons for its custody determination. In M.P. v. M.P., 54 A.3d 950 (Pa.Super.2012), this Court concluded that the *962trial court erred in issuing a custody order without any explanation pursuant to § 5323(d) until after the appeal was filed. Unlike the focus of our case law confronting the court’s compliance with § 5328(a), which addressed this Court’s inability to perform effective appellate review without the trial court’s discussion of its best-interest considerations, the M.P. Court reasoned that the trial court’s failure to comply with § 5323(d) in that case precluded the appellant from challenging the trial court’s independent post-hearing Internet investigation and consideration of evidence dehors the record. Hence, the precise basis of our decision to reverse the custody order was that the timing of the trial court’s § 5323(d) rationale prevented the mother from addressing the court’s extrajudicial investigation following the hearing. It bears repeating that the trial court herein complied with § 5323(d) by placing the precise reasons for its determination on the record during the custody proceedings. Thus, unlike the trial court in M.P., the court herein did not surprise Aunt with a new rationale after she filed her appeal.

As noted supra, the majority claims to fix the perceived error that “[sjection 5323(d) does not contemplate a specific time period for compliance with section 5328.” Majority Opinion at 951-52. Overlooking the fact discussed above that the General Assembly has never required a trial court to express its best-interest considerations, the majority intertwines the § 5323(d) requirement to delineate the reasons for its determination with our case law addressing § 5328(a). Throughout its rationale, the majority refers interchangeably to the General Assembly’s mandate to “delineate the reasons” and a nonexistent statutory mandate to “address the statutory factors.” See Majority Opinion at 951-52, 952-53, 953, 954, 955. Indeed, having found that § 5323(d) effectively subsumed § 5328(a), the majority reasons,

To interpret section 5323(d) so as to permit a trial court to forego addressing the factors until it issues its Pa.R.A.P. 1925(a) opinion-ie., after a party has filed an appeal and a concise statement-renders that section’s language mere surplusage. Under such an interpretation, if a party decides not to appeal the custody order, and the trial court does not address the factors contemporaneously with the custody order, the court may never address the factors. However, the Act’s language requiring the trial court to do so is clear and unequivocal. See 23 Pa.C.S. §§ 5328 (“[T]he court shall determine the best interest of the child by considering all relevant factors ...”) (emphasis added); 5323(d) (The court “shall then [sic] delineate the reasons for its decision on the record in open court or in a written opinion or order.”) (emphasis added). Such an interpretation would all but guarantee that, in many cases, compliance with the Act would never occur. This result clearly is not what the General Assembly intended in promulgating the new Act, because it would render the mandatory language in section 5328 and section 5323 meaningless.

Majority Opinion at 952-53. Later, the majority opined that “Interpreting section 5323(d) in a manner that permits a trial court to delay addressing the Act’s sixteen custody factors until the preparation of its Pa.R.A.P. 1925(a) opinion yields an absurd and unreasonable result.” Id. at 953.

These two excerpts reveal the recurring flaw that permeates the majority’s rationale, i.e., its refusal to acknowledge that the legislature did not require a trial court to explain its best-interest considerations; rather, we did. Thus, notwithstanding the majority’s protestations to the contrary, *963applying the pertinent sections of the law as drafted does not create surplus nor meaningless language. Indeed, these aspects of the Child Custody Law truly are clear and unequivocal. Pursuant to § 5328(a), trial courts are required to consider the sixteen enumerated factors in determining a child’s best interest. As I noted supra, the actual consideration of the factors logically must occur prior to the custody determination or the determination could not be founded on the child’s best interest. Likewise, under § 5323(d), the trial court must delineate the reasons for its determination in one of the three identified manners. Although this Court subsequently required trial courts to explain the best-interest considerations in order to assist our appellate review, I believe it is error to graft our decisional law onto the General Assembly’s intent in order to achieve a desired outcome.5

As previously noted, in M.P. v. M.P., supra, this Court determined that the trial court must delineate the reasons for its decision prior to the filing of a notice of appeal. See also, M.J.M. v. M.L.G., supra at 951. In the case at bar, the trial court elected to delineate the reasons for its decision on the record in open court. The trial court articulated on the record the following reasons for granting Uncle primary custody of G.B. and K.B.:

Two of the key factors for me is one is the blood relationship, and two is I don’t believe Lawrence County would have been looking to the family absent that kinship relationship. But once it did, of course, that kicked in the right of [Aunt], because of her years of helping to take care of the kids, it kicked in custody rights in her. I also think that the language barrier has some play in it as a difficulty, as well as all of the other factors and information that we have received over three or four days of hearings.

N.T., 10/24/11, at 23.

Unlike the majority, I do not equate the § 5323(d) requirement that the trial court delineate the reasons for its decision with the § 5328(a) requirement that it consider the sixteen enumerated factors in § 5328 prior to awarding custody. Although the reasons for a trial court’s custody decision undoubtedly will often overlap with its consideration of the sixteen best-interest factors, that scenario is not a certainty in every case. Indeed, the case at bar highlights the differences between the two sections. Herein, the trial court both noted its contemplation of all of the relevant factors and delineated on the record its specific reasons for fashioning the custody award in Uncle’s favor. Mindful that the two sections are distinct, albeit related provisions, rather than a single, interchangeable directive, I would not negate the trial court’s compliance with § 5323(d) simply because its discussion did not explain contemporaneously its consideration of all of the § 5328(a) best-interest factors pursuant to our decisional law. Accordingly, I would find that the trial court complied with the statutory mandate to delineate the reasons for its determination pursuant to 5323(d) and to the extent that it failed to comply with the timing elements of our case law, the error was harmless. The court remedied any prejudice by specifically discussing each of the factors in its subsequent Rule 1925(a) opinion, and Aunt was able to address the court’s discussion on appeal.

*964Moreover, to the extent that Aunt complains in this case that the trial court’s application of § 5828(a) precluded her from making an informed decision to appeal the custody order, I reject that assertion. Simply stated, Aunt knew the basis of the trial court’s rationale, even if she was not aware of the specific manner in which the trial court applied the sixteen factors. Consequently, she had sufficient information to decide whether to pursue an appeal, and, in fact, leveled a portion of her appellate argument against the trial court’s on-the-record statement of its rationale, ie., the perceived communication barriers and Uncle’s birth relationship with the children’s father. Thus, despite contrary assertions, Aunt was not forced to guess the basis of the trial court’s decision.

Likewise, the majority’s concern over the potential for waiver of an appellate argument due to a lack of particularity or non-inclusion in a Rule 1925(b) statement is unpersuasive. While the majority accurately cited our. case law that stands for the established proposition that issues not included in a timely filed Rule 1925(b) statement are waived pursuant to Pa.R.A.P. 1925(b)(4)(vii), it ignored without any discussion the corresponding rule that in civil cases an appellant may state his or her issues in general terms if it “cannot readily discern the basis for the [trial] judge’s decision,” and “the generality of the Statement will not be grounds for finding waiver.” See Pa.R.A.P. 1925(b)(4)(vi). Similarly, the majority does not attempt to explain how our ability to remand a case for a party to amend or supplement a timely filed Rule 1925(b) statement pursuant to Pa.R.A.P. 1925(c) impacts its concern over a party’s inability to present an issue in the Rule 1925(b) statement.

In addition, in appeals designated as children’s fast track, the trial court seldom orders litigants to file a Rule 1925(b) statement because Rule 1925(a)(2)(i) requires the statement to be filed concurrent with the notice of appeal. Pursuant to our holding in In re K.T.E.L., 983 A.2d 745, 747 (Pa.Super.2009), this Court may overlook a party’s failure to comply with Rule 1925(a)(2)(i) when no court order has been violated. See In re R.N.F., 52 A.3d 361, 362-363 (Pa.Super.2012) (citing K.T.E.L., supra (“... an appellant’s failure to strictly comply with Pa.R.A.P. 1925(a)(2) did not warrant an application of the waiver rule, as no court order had been violated, and there was no prejudice to any party.”)). Accordingly, I believe sufficient safeguards exist within our case law and rules of appellate procedure to prevent the harsh hypothetical scenarios the majority devised to illustrate its alarm.

Furthermore, even though I am not convinced that the episodic nature of custody matters would have any bearing upon the perceived legislative mandate to confront the sixteen best-interest factors prior to the filing of a notice of appeal, I will address this aspect of the majority’s rationale also. Simply stated, the divisibility of § 5323(d) and § 5328(a) does not affect the trial court’s obligation to delineate the reasons for its determination. The court’s compliance with § 5323(d) is in no way dependent on the filing of the appeal. The trial court must always delineate its reasons for its custody decision, and the reasons will certainly reference some, if not all, of the statutory factors. Thus, whether or not an appeal is filed, the litigants would know the reasons for the custody order. Hence, I would reject the majority’s premise that the continuous nature of custody proceedings has a bearing on our statutory interpretation of §§ 5323(d) and 5328(a).

For all of the foregoing reasons, I cannot join the majority’s analysis that *965purports to identify a statutory mandate requiring trial courts to explain its consideration of all sixteen best-interest factors as a component of § 5823(d).

.Section 5323 provides, in pertinent part, as follows:

(a) Types of award. — After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the court may award any of the following types of custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
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(d) Reasons for award. — The court shall delineate the reasons for its decision on the record in open court or in a written opinion or order.

. In pertinent part, 23 Pa.C.S. § 5328(a) provides, “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[.]”

. The Pennsylvania Constitution, Article V § 10(c) provides as follows:

(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide *960for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose....

. The majority's overreaching is highlighted by its statement that the statutory language "does not identify the point in the proceedings at which [the] consideration must occur.” Majority Opinion at 951. As a logical necessity, however, the mandated consideration of factors to determine the best interest of a child must occur prior to the trial court’s custody determination or else that determination would be baseless. The majority's statement is more accurately phrased as the statute does not indicate when during the proceedings the trial court must express its rationale as it relates to all sixteen factors. Undoubtedly, the reason for this omission is that the presumed mandate does not exist in the statutory language. It is a creation of our case law.

Additionally, I observe that in order to facilitate appellate review in situations where the trial court failed to demonstrate that it considered the relevant statutory factors at all, our decisional law fashioned the § 5328(a) requirement that a trial court consider the sixteen best-interest factors in deciding any form of custody into a requirement that the court explain its best-interest considerations. Although the requirement to consider something is different conceptually from the requirement to explain it, as I previously noted, I do not challenge the state of our existing case law.

. I note that we did examine the legislative intent in E.D. v. M.P., 33 A.3d 73, 82 (Pa.Super.2011), in order to determine whether the the new custody law applied; however, we did not purport to engage in statutory construction when we required trial courts to set forth an expression of rationale relating to the best-interest factors. See id. at 81.