J-S45003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
TODD A. ABROMITIS, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KAYLA J. ABROMITIS : No. 1138 MDA 2023
Appeal from the Order Entered July 14, 2023
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2015-CV-03393-DC
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 16, 2024
Todd A. Abromitis, Jr. (“Father”) appeals the July 14, 2023 order that
awarded Kayla J. Abromitis (“Mother”) (collectively, “Parents”) primary
physical custody of Parents’ daughter, A.A., born December 2013, during the
school year while granting Parents equally shared physical custody during the
summer months. We affirm.
We glean the relevant factual and procedural history of this matter from
the certified record. Parents were married in May 2013, and separated in
February 2015. They reached an agreement concerning custody of A.A. in
June 2015, which provided Parents would share legal custody. See Order,
6/4/15, at ¶ 1. Under this agreement, Mother exercised primary physical
custody of A.A., with Father having partial custody rights on alternating
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* Former Justice specially assigned to the Superior Court.
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weekends and one weekday. Id. at ¶¶ 2-5. The parties reaffirmed these
general custody parameters in a subsequent agreement in November 2015.
See Order, 11/9/15, at ¶¶ 1-4. Ultimately, Parents’ divorce was finalized in
August 2016. Thereafter, the parties generally abided by the dictates of the
above-referenced agreements and were co-parenting successfully from
approximately August 2016 through January 2022.
Following Parents’ divorce, Father relocated to Middletown,
Pennsylvania, where he currently resides with his wife (“Stepmother”). Father
and Stepmother share their home with their son, L.A., who was born in
November 2022, and Stepmother’s daughter, J.B., who was twelve years old
at the time of the custody hearings in this case. See N.T., 3/1/23, at 5.
Mother lives in Camp Hill, Pennsylvania with A.A., maternal grandmother, and
Mother’s son, B.J.S., who was five years old at the time of the hearings.1 See
N.T., 7/7/23, at 4, 8, 12.
A.A. attends private school at West Shore Christian Academy (“West
Shore”), where she has been enrolled for several years after concerns arose
regarding her progress in public school. Id. at 12-13. Specifically, A.A. was
found to be approximately one and one-half years “behind” educationally upon
her enrollment at West Shore. Id. at 12. Consequently, A.A. was receiving
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1 B.J.S. is not Father’s child. Mother testified that she shares physical custody
of B.J.S. with a different ex-husband on an approximately equal basis. See
N.T., 7/7/23, at 12.
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tutoring services from both an organization, Best Brains, and from Father’s
sister for a period of time. Id. at 13.
Against this backdrop, the relationship between the parties grew
increasingly acrimonious. Sometime in 2020, an incident occurred between
A.A. and J.B., wherein J.B. had “held down” A.A. in a locked bathroom in
Father’s house and kissed her. See N.T., 3/1/23, at 49; N.T., 7/7/23, at 25,
29-30. This incident sparked significant concern and led to the adoption of
informal rules by the parties to prevent future incidents, i.e., prohibiting the
girls from being in the same room with closed doors. Id.
Due to the breakdown in the parties’ relationship, A.A. ceased being
tutored by Father’s sister and Mother began to advocate for enrolling the child
in supplemental classes through Sylvan Learning Center (“Sylvan”), which
became a source of conflict for the parties due to logistics and cost concerns.2
In January 2021, Father filed a child abuse report with Child Protective
Services (“CPS”) claiming Mother had struck A.A. with a spatula. See N.T.,
3/1/23, at 10-14. Thereafter, in July 2021, Father submitted a second referral
claiming that Mother had “slapped” A.A. across her face. Id. at 15-18. Both
claims were deemed to be unfounded. Id. at 18, 52.
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2 Although Mother referred to this organization several times in her testimony
as “Sullivan Learning Center,” the custody court eventually clarified that the
correct name is “Sylvan Learning Center.” See N.T., 7/7/23, at 70.
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Several days after Father’s second CPS referral, Mother contacted law
enforcement and alleged that J.B. was sexually abusing A.A. in Father’s home.
See N.T., 3/1/23, at 19; N.T., 7/7/23, at 25-26. Specifically, Mother claimed
that J.B. was “touching” A.A. and showing A.A. sexually inappropriate
materials, such as drawings and pictures. Id. Ultimately, police determined
that no abuse had occurred and no charges were filed in connection with
Mother’s report. See N.T., 3/1/23, at 19; N.T., 7/7/23, at 27.
Due to these allegations, Mother refused to allow Father to exercise
physical custody of A.A. in his home while J.B. was present between July 4
and August 10, 2022. See N.T., 3/1/23, at 19-20. However, Mother did not
prevent Father from exercising custody outside of his home, which included
at least one instance when Father picked up A.A. from Mother’s home for
several hours. See N.T., 3/1/23, at 52-53; N.T., 7/7/23, at 28.
On July 14, 2022, Father filed a petition to modify custody seeking “sole
physical custody” of A.A. on the basis that Mother was an unfit and unsafe
parent.3 Petition to Modify Custody, 7/14/22, at ¶¶ 21-22. Specifically,
Father’s petition largely relied upon the same allegations set forth in the
unfounded CPS reports he had filed earlier in the year. Id. at ¶¶ 7-11. Mother
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3 The same day, Father also filed an emergency petition for special relief,
which raised identical allegations and requested the same relief. Compare
Petition to Modify Custody, 7/14/22, at ¶¶ 1-22 with Emergency Petition for
Special Relief, 7/14/22, at ¶¶ 1-18. On July 22, 2022, the custody court
denied Father’s request for an emergency custody modification. No appeal
was filed from this order denying emergency relief.
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filed an answer and a counterclaim that, inter alia, requested that the court
deny Father’s request and permit Mother to maintain “primary physical
custody” of A.A. See Answer and Counterclaim, 8/1/22, at ¶ 24.
On August 16, 2022, the court entered an interim custody order that
maintained the status quo, i.e., shared legal custody with Mother exercising
primary physical custody of A.A. and Father having partial physical custody
on alternating weekends and one day per week. This arrangement was
confirmed in a second order entered in September 2022.
On March 6, 2023, the court appointed Allison Hastings, Esquire, to
serve as guardian ad litem (“the GAL”) to represent A.A.’s best interests at
the custody hearings. To that end, the GAL met with A.A. on several occasions
and interviewed various individuals involved with this case. She also prepared
and filed a report memorializing what she believed was in A.A.’s best interests.
Specifically, she recommended that Mother be awarded primary physical
custody of A.A. during the school year and that Parents share custody equally
on a weekly basis during her summer break. See N.T., 7/7/23, at 81-82.
The court held a custody trial on March 1, 2023, and July 7, 2023.
During these proceedings, Mother, Father, Stepmother, the GAL, and the
paternal and maternal grandmothers each testified. Separately, the court
interviewed A.A. in camera. Between the first and second days of the custody
trial, we note that A.A. was formally diagnosed with attention deficit
hyperactivity disorder (“ADHD”). See N.T., 7/7/23, at 22.
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On July 14, 2023, the trial court entered an order, which: (1)
maintained shared legal custody between Parents; (2) awarded Mother
primary physical custody during the school year and Father partial physical
custody on alternating weekends and each Tuesday evening; and (3) provided
for equally shared physical custody during summer break on an alternating
weekly basis. The order also directed that A.A. be enrolled at Sylvan and
provided that Mother would be responsible for the “initial” costs with the
option to seek future “allocation” from Father through separate domestic
relations litigation. The same day, the trial court also filed a memorandum
opinion detailing its findings as to the factors set forth at 23 Pa.C.S. § 5328(a).
Father filed a timely notice of appeal along with a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
The trial court responded by filing a responsive opinion pursuant to Rule
1925(a)(2)(ii). On appeal, Father raises the following issues for our
consideration:
1. Whether the [trial] court’s conclusions were against the
weight of the evidence presented through trial regarding
custody factors one, two, four, six, eight, ten, thirteen, and
sixteen?
2. Whether the evidence presented to the court was
insufficient to deny Father 50/50 custody and give [Mother]
primary physical custody during the school year?[4]
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4 As set forth in his original request for modification, Father initially requested
“sole physical custody” of A.A. See Petition to Modify Custody, 7/14/22, at
¶¶ 21-22. At the July 7, 2023 custody hearing, however, Father abandoned
(Footnote Continued Next Page)
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Father’s brief at 1-2 (cleaned up).5
Our standard and scope of review in this context is well-established:
Our standard of review over a custody order is for a gross abuse
of discretion. Such an abuse of discretion will only be found if the
trial court, in reaching its conclusion, overrides or misapplies the
law, or exercises judgment which is manifestly unreasonable, or
reaches a conclusion that is the result of partiality, prejudice, bias,
or ill-will as shown by the evidence of record.
In reviewing a custody order, 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 trial court 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.
Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa.Super. 2023) (cleaned up).
As with all custody-related matters, this Court’s “paramount concern is
the best interest of the child involved.” Id. at 61 (internal citation and
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this position and instead requested equally shared physical custody between
the parties. See N.T., 7/7/23, at 117 (“Essentially this is coming down to
whether or not [Father] is capable and should be given the opportunity to
have week on/week off to start on the right foot with [A.A.] regarding her
education.”). This apparent revision to the scope of Father’s requested relief
does not materially impact our holding in this matter.
5 Mother has filed a motion to dismiss based upon Father’s failure to comply
with various Rules of Appellate Procedure pertaining to the reproduced record
and his brief. As these transgressions have not impeded our ability to review
the issues raised on appeal, we deny Mother’s motion.
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quotation omitted). Indeed, Pennsylvania law provides that the court is only
empowered to change an existing custody order if the modification will “serve
the best interest of the child.” 23 Pa.C.S. § 5338(a). To that end, the Child
Custody Act sets forth sixteen factors at § 5328(a) that a court must consider
prior to modifying an existing custody order. See E.B. v. D.B., 209 A.3d 451,
460 (Pa.Super. 2019). While a court’s consideration of these factors is
mandatory, “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.”
Id. (cleaned up).
The statute provides 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:
(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 [§] 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.
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(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.
(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). In order to evidence its consideration of these required
factors, a custody court must set forth its best-interest determination “prior
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to the deadline by which a litigant must file a notice of appeal.” A.V. v. S.T.,
87 A.3d 818, 820 (Pa.Super. 2014).
Instantly, the trial court provided a timely and complete assessment of
the relevant § 5328(a) factors in a memorandum opinion filed
contemporaneously with the July 14, 2023 order. See Memorandum Opinion,
7/14/23, at unnumbered 1-4. Specifically, the court found that the factors
set forth at subsections (a)(3), (4), (10), and (11) favored Mother. The
remaining factors were either neutrally weighted or irrelevant. As we discuss
infra, the court noted that A.A.’s need for academic intervention was an
additional, relevant factor that informed its decision pursuant to
§ 5328(a)(16), but did not militate in favor of either parent. Essentially, the
court called upon Parents to do better for their daughter. See id. at 4. No
custody factors favored Father.
Father’s first claim for relief challenges the trial court’s findings with
respect to the factors at § 5328(a)(1), (2), (6), (8), (10), (13), and (16).6
See Father’s brief at 6-20. Of the challenged considerations, the trial court
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6 Although Father also purports to challenge the trial court’s findings pursuant
to 23 Pa.C.S. § 5328(a)(4), his brief contains no salient discussion or mention
of this statutory provision aside from being listed in Father’s statement of
questions presented. See Father’s brief at 1, 5. Accordingly, we find that
Father has waived this claim pursuant to Pa.R.A.P. 2119 for failure to cite any
relevant authorities or submit any pertinent discussion. See Coulter v.
Ramsden, 94 A.3d 1080, 1088-89 (Pa.Super. 2014) (“The Rules of Appellate
Procedure state unequivocally that each question an appellant raises is to be
supported by discussion and analysis of pertinent authority. . . . [A]rguments
which are not appropriately developed are waived.”).
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determined that all but the tenth factor were either neutral or inapplicable.
We will address each subsection in turn.
The factor at § 5328(a)(1) concerns which party is “more likely to
encourage and permit frequent and continuing contact between the child and
another party,” which the trial court determined favored neither parent.
Father asserts that the court erred in finding this factor neutral since Mother
prevented A.A. from being in Father’s house between July 4 and August 10,
2023. See Father’s brief at 6-7; see also N.T., 3/1/23, at 19 (Father
testifying that this interlude lasted for only one month).7 Instead, Father
contends that this factor should favor him.
While acknowledging that Mother interfered with Father exercising
unfettered physical custody of A.A. at his home between July 2022 and August
2022, the trial court concluded that Mother was justified in doing so while the
allegations concerning J.B. were being investigated. See Memorandum
Opinion, 7/14/23, at unnumbered 2 (“The [c]ourt would have preferred that
Mother file her own petition for modification rather than engage in self-help.
Nonetheless, the court believes the incident with Father’s
stepdaughter warranted a separation at the time.” (emphasis added)).
Given the nature of the allegations concerning J.B. and the history between
her and A.A., we do not find the trial court’s determination to be unreasonable.
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7 To the extent Father asserts that this non-custodial period lasted for longer
than approximately one month, his own testimony belies such a claim.
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Furthermore, it is also clear from Parents’ respective testimony that
Father was able to exercise physical custody of A.A. outside of his home
during this time period. See N.T., 3/1/23, at 52-53; N.T., 7/7/23, at 28.
Finally, Mother’s short-lived restriction ended once the investigation into J.B.’s
alleged abuse of A.A. concluded without a finding of objectionable behavior.
Our review indicates that this one-month interlude was the only instance in
which physical custody became an intractable dispute.
Based on the foregoing, the record supports the trial court’s conclusion
that § 5328(a)(1) did not weigh in favor of either party. Accordingly, we will
not disturb its determination.
Father’s next argument concerns § 5328(a)(2), which pertains to
“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.” In his brief, Father essentially seeks to re-litigate
the unfounded child abuse allegations he leveled against Mother in 2022,
arguing that the court should have credited these claims in its weighing of
§ 5328(a)(2). See Father’s brief at 9-11.
In considering the trial court’s analysis of this factor, we emphasize that
the instant case included multiple claims of abuse implicating Parents’
respective households. Specifically, Father accused Mother of using
inappropriate corporal punishment, while Mother accused Father’s
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stepdaughter of sexually abusing A.A. See N.T., 3/1/23, at 10-20; N.T.,
7/7/23, at 25-27. Although Mother admitted that she had struck A.A. with a
spatula in January 2022, Father similarly conceded that an inappropriate
episode occurred between J.B. and A.A. in his home.8 Compare N.T., 7/7/23,
at 49 with N.T., 3/1/23, at 49. Furthermore, the competing allegations of
abuse advanced by the parties were deemed to be universally unfounded by
the investigating agencies. Id. Contrary to Father’s arguments, there are no
substantiated allegations of “present or past” abuse in the case sub judice.
Since the trial court’s determination of neutrality is supported by the certified
record, we observe no abuse of discretion or error of law in the trial court’s
conclusion that § 5328(a)(2) favored neither Mother nor Father.
Next, Father challenges the court’s finding as to § 5328(a)(6), which
addresses “[t]he child’s sibling relationships.” Father submits that the court
should have found this factor to be in his favor because awarding Mother
primary custody during the school year will negatively impact A.A.’s
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8 After interviewing A.A., the GAL testified concerning her belief that the
incident in which Mother struck the child with a spatula was an isolated
incident wherein Mother and A.A.’s relationship reached a “boiling point.” See
N.T., 7/7/23, at 84. The GAL reported that A.A. was very “communicative”
about this episode and reported that nothing similar had happened since in
Mother’s care. Id. The trial court credited this testimony in rendering its
decision. See Memorandum Opinion, 7/14/23, at unnumbered 2 (“The child’s
recent escalation of poor behavior resulted in Mother using inappropriate force
on [A.A.] last year. The [c]ourt believes that Mother has altered this
practice.”). We observe no basis upon which to overturn this credibility finding
since it is well-supported by the record.
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relationship with L.A., her newborn half-brother. See Father’s brief at 12 (“By
not allowing [Father] to have shared custody during the school year, this
impedes the relationship with [A.A.] and her youngest sibling as he gets older,
hits new milestones, and becomes more playful.”).
As detailed in the factual recitation above, A.A. has relevant half-sibling
relationships in both of her respective households. While Father asserts in
this Court that the trial court should have allotted more weight to A.A.’s
relationship with L.A., our review of the certified record reveals little evidence
to support such an assessment. Aside from noting that L.A. had been born in
November 2022, there is virtually no further testimony concerning him. See
N.T., 3/1/23, at 5-6. Furthermore, Father has cited no such evidence in his
brief. By contrast, Mother testified that A.A. has a close relationship with
B.J.S. See N.T., 7/7/23, at 37 (“They’re best friends.”). Overall, Father’s
argument on this point amounts to little more than a bald assertion that the
trial court should have accorded more weight to A.A.’s prospective relationship
with L.A.
Based upon the foregoing, we observe no abuse of discretion or error of
law in the trial court’s findings pursuant to § 5328(a)(6). From the limited
information available, we gather that the certified record supports the court’s
finding that this factor was neutral, i.e., that A.A. has equally valid concerns
with respect to her sibling relationships in both households. Accordingly, no
relief is merited on this aspect of Father’s claim.
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We now turn to Father’s arguments pursuant to § 5328(a)(8), which
concern any “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.” Although the trial court concluded
that this factor was neutral, it was “quite certain” that A.A. was being provided
with inappropriate information concerning the proceedings. Memorandum
Opinion, 7/14/23, at unnumbered 3. Father submits that this factor should
have “strongly” favored him. See Father’s brief at 12-15.
Father has largely mischaracterized the testimony of record, which
establishes that Parents were engaging in mutual attempts to influence A.A.’s
opinion and, thereby, gain an advantage in the custody proceedings. Indeed,
the trial court’s in camera interview of A.A. led it to conclude that both Mother
and Father were engaging in mutually inappropriate behavior, leading it to
issue the following admonition to the parties: “Cautionary message to both
of you: She knows what’s going on. She has got everything as far as – I
mean, she – she really knows what’s going on. So just be careful. These
types of adult things bleed into a child’s life and can irreparably shape her for
years to come.” N.T., 3/1/23, at 3.
Our review of A.A.’s in camera averments supports this finding.
Specifically, she disclosed that Mother had shared disparaging information
that was critical of Stepmother, including Stepmother’s history of drug abuse,
criminal behavior, and medical history. See N.T., 2/28/23, at 24-25, 27-28.
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However, A.A. concomitantly averred Father had attempted to bribe her into
providing testimony beneficial to his custody modification request by
promising to buy her a hamster. Id. at 21-22, 53-55.
In sum, we find no abuse of discretion or error of law upon which to
overturn the trial court’s finding with respect to § 5328(a)(8). As discussed
above, the certified record reflects effectively equal efforts by Parents to turn
A.A. against the other. Therefore, no relief is due.
Father also challenges the court’s findings as to § 5328(a)(10), which
addresses “[w]hich party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the child.” Unlike
the other factors that father challenged on appeal, the trial court actually
weighed this consideration in Mother’s favor, reasoning that she is the “point
person” for A.A.’s tutoring arrangements and has a better record in contacting
and communicating with A.A.’s school. See Memorandum Opinion, 7/14/23,
at unnumbered 3. By contrast, Father asserts that this factor “should favor
him and that [A.A.] would be better off with him for stability and continuity in
[her] education.” Father’s brief at 17.
Contrary to Father’s arguments, the trial court’s finding pursuant to
§ 5328(a)(10) is amply supported by the certified record. The GAL relayed
without contradiction that Father has a poor reputation for timely and effective
communication with A.A.’s educational providers. See N.T., 7/7/23, at 97
(“[T]he school counselor, the teacher – I don’t want to use the word
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complained, but indicated that [F]ather was not responsive to their
messages.”). Although Father complains that Mother unilaterally enrolled A.A.
in tutoring programs without his consent or input, Father’s own testimony
reflects he failed to take any significant action concerning tutoring when
confronted with A.A.’s educational issues. See N.T., 3/1/23, at 44-46; see
also N.T., 7/7/23, at 105 (“I vaguely looked at Sylvan, but that was about
it.”). Moreover, there are concerns about A.A.’s educational priorities in
Father’s home. Specifically, A.A. testified in camera that Stepmother has
forged documentation attesting that A.A. had completed assignments that
she, in fact, had not finished. See N.T., 2/28/23, at 43-44. Overall, we find
no abuse of discretion or error of law in the trial court’s weighing of the factor
at § 5328(a)(10). Therefore, no relief is due.
Father’s next line of argument concerns § 5328(a)(13), which implicates
“[t]he level of conflict between the parties and the willingness and ability of
the parties to cooperate with one another.” The trial court determined that
the conflict was mutually attributable to Parents. See Memorandum Opinion,
7/14/23, at unnumbered 4 (“[N]either parent trusts each other on any
level.”). Father attempts to frame Mother as the sole bad actor, heaping upon
her all of the blame for the parties’ inability to co-parent. See Father’s brief
at 18 (“[T]he only reason the parties do not get along anymore is because
[Mother] will make decisions without consulting [Father] or giving him enough
time to respond.”).
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Father’s effort to recast Mother as a lone villain falls immediately flat
when confronted with the testimony of record. As detailed above, Parents’
testimony indicates that they have both advanced unfounded reports of child
abuse against one another. See N.T., 3/1/23, at 10-19; N.T., 7/7/23, at 25-
27. Similarly, A.A.’s testimony indicates that both parties are responsible for
undertaking efforts to turn A.A.’s opinion against the other parent. See N.T.,
2/28/23, at 21-22, 24-25, 27-28, 53-55. There is little question that Parents
are jointly responsible for creating the extraordinary level of conflict in their
relationship. To the extent Father contends that Mother is solely responsible
for their co-parenting conflicts, the record does not support his position.
Therefore, no relief is due on this claim.
Father’s final argument respecting the custody factors concerns the
court’s findings pursuant to § 5328(a)(16), which provides the court with the
opportunity to consider “[a]ny other relevant factor” not already explicitly
listed in the statute. Here, the trial court utilized this supplemental factor to
essentially call upon Parents to, collectively, do a better job of cooperating
with respect to A.A.’s education, as follows:
This child was failing school during the [first] and [third] quarter
of the 2022-2023 school year which resulted in her being . . .
placed on academic probation. That has since been lifted. She
has a recent diagnosis of ADHD. She has not been placed on any
medications yet. She needs to be evaluated for an [individualized
educational plan]. Her parents need to give her the tools to
succeed and must put their current animosity aside in order
to do so.
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Memorandum Opinion, 7/14/23, at unnumbered 4 (emphasis added). Thus,
we discern that this custody factor was deemed to be neutral.
Although styled as such, Father does not explicitly challenge the trial
court’s finding with respect to § 5328(a)(16). Instead, he utilizes this portion
of his argument to impugn the court’s directive concerning A.A.’s enrollment
at Sylvan on financial grounds. See Father’s brief at 19 (“The [c]ourt also
ordered, as part of custody, that [A.A.] must go to [Sylvan] and that [Mother]
can file for a deviation with support. . . . Father already pays child support
and struggles with the [o]rder that does not include paying for [Sylvan].”).
Thus, Father contends this part of the order should be stricken.
Father’s argument concerning potential financial hardship is premature.
The court’s order provided that Mother, alone, would bear the initial costs of
A.A.’s enrollment at Sylvan. See Order, 7/14/23, at ¶ 25 (“The child will be
enrolled in tutoring through [Sylvan]. Mother will initially pay the costs
and may seek an allocation of this cost through Domestic Relations.”
(emphasis added)). Any arguable financial burden upon Father that may
accrue due to A.A.’s enrollment at Sylvan is entirely dependent upon facts that
have not, and may not, come to pass. Specifically, the certified record does
not disclose that Mother has sought any financial contribution from Father in
connection with this specific custody finding. More importantly, no trial-level
court has yet ruled upon any such request on its relative merits. Thus,
Father’s claim on this point is purely speculative.
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J-S45003-23
We decline Father’s invitation to issue an impermissible advisory opinion
concerning circumstances not squarely before this Court. See, e.g.,
Somerset County Children and Youth Services v. H.B.R., 155 A.3d 627,
631 (Pa.Super. 2017) (holding that “it would be premature to reach the merits
of a hypothetical situation” concerning an agency’s potential entitlement to
financial reimbursement before it had sought remuneration).
To the extent that Father intends to dispute the trial court’s findings with
respect to § 5328(a)(16), we discern no abuse of discretion or error of law in
the court’s finding that both parties need to put aside their differences in order
to better provide for A.A.’s educational development. As detailed throughout
this writing, the conflict and acrimony of Parents’ relationship is attributable
to both of their actions in equal measure. Thus, we also affirm the trial court’s
finding pursuant to § 5328(a)(16).
Having found no abuse of discretion or error of law in the trial court’s
weighing of the factors set forth at § 5328(a), we conclude that Father’s first
bevy of claims for relief is without merit.
Although framed as a separate matter, Father’s second issue is simply
a restatement of his earlier arguments. See Father’s brief at 20-24. The
gravamen of these claims is that the trial court should have credited the
evidence favoring Father instead of the evidence favoring Mother. Id. at 20
(“In pointing out particular matters in each of the aforementioned factors,
[Father] avers that the evidence in fact favored him.”).
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As discussed at length above, we have determined that Father’s
numerous specific challenges to the trial court’s findings are meritless since
the court’s conclusions are supported by competent evidence. Accordingly,
we are bound by these findings and may not overturn them. See Saltz v.
Rinker, 902 A.2d 509, 512 (Pa.Super. 2006) (“[O]n the issues of credibility
and weight of the evidence, we defer to the findings o[f] the trial judge. . . .
[A]ppellate interference is allowed only where it is found that the custody
order is manifestly unreasonable as shown by the evidence of record.”).
Therefore, Father’s second issue does not merit relief.
Based on the foregoing, we find no abuse of discretion or error of law in
the trial court’s order. Thus, we affirm.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 02/16/2024
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Abromitis, T., Jr. v. Abromitis, K.
Combined Opinion