J-A16014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.C.F.(B.), IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
J.P.B.,
Appellee No. 154 WDA 2016
Appeal from the Order December 31, 2015
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2008-3945
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 19, 2016
Appellant, A.C.F.(B.) (“Mother”) appeals from the order entered on
December 31, 2015, in the Cambria County Court of Common Pleas. After
careful review, we affirm.
The relevant facts and procedural history of this matter were set forth
by the trial court as follows:
[Mother] and [Appellee (“Father”)] are the parents of two
minor children, namely, I.C.B. (born [in] 2004) and A.N.B. (born
[in] 2006) [(collectively “the Children”)]. REPORT OF HEARING
OFFICER AND RECOMMENDED ORDER FILED FOR RECORD ON
JUN. 11, 2015 [(“REPORT”)], pg. 1. The parties are currently
subject to a Custody Stipulation and Order dated December 31,
2008, in which the parties share legal custody, Mother exercises
primary physical custody, and Father has partial physical custody
on alternating weekends and 20 additional days annually.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A16014-16
CUSTODY STIPULATION AND ORDER DATED DEC. 31, 2008,
¶¶2-4.
On June 23, 2014, Father filed a Petition for Modification,
seeking additional summer periods of custody, as well as
modifications to the holiday schedule, transportation
requirements, and other provisions. PETITION TO MODIFY
CUSTODY ORDER FILED FOR RECORD ON JUN. 23, 2014, ¶7.
The Hearing Officer conducted a Pre-Hearing Conference on
August 21, 2014, and a full-day custody hearing on January 14,
2015, ORDER DATED SEP. 25, 2014; ORDER DATED OCT. 16,
2014. The hearing did not conclude and was rescheduled for
April 1, 2015. ORDER DATED JAN. 27, 2015. The Hearing Officer
filed a Report and Recommended Order on June 11, 2015.
Mother and Father timely filed Exceptions on June 22, 2015 and
July 10, 2015, respectively. The trial court entertained oral
argument and ordered production of the hearing transcripts on
August 21, 2015. See HEARING NOTES OF TRANSCRIPT [“N.T.”]
(JAN. 14, 2015); (APR. 1, 2015). The trial court issued its
Opinion and Order dated December 31, 2015, denying Mother’s
Exceptions and granting Father’s Exceptions. OPINION AND
ORDER DATED DEC. 31, 2015, ¶¶1-2. On January 28, 2016,
Mother filed a Notice of Appeal and Concise Statement of Matters
Complained of on Appeal. The transcript was lodged with the
trial court on February 8, 2016. See N.T. (AUG. 21, 2015).
Trial Court Opinion, 2/29/16, at 1–2.
On appeal, Mother presents the following issues for this Court’s
consideration:
1) Whether the trial court erred by modifying the transportation
provision (identified as “Exchanges of Custody” in the December
31, 2015 Order of Court) of Father’s periods of partial physical
custody such that the minor children will now be required to
travel seven to eight hours every other weekend during the
school year, which is neither in the minor children’s best interest
nor supported by the record?
2) Whether the trial court erred in relying on inapposite case
law, specifically, M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014)
and failed to consider the sixteen (16) relevant factors set forth
-2-
J-A16014-16
in 23 Pa. C.S. § 5328(a) (1-16) in coming to a best interests
analysis?
Mother’s Brief at 4.
The Child Custody Act (the “Act”), 23 Pa.C.S. §§ 5321-5340, is
applicable to the present matter. See C.R.F. v. S.E.F., 45 A.3d 441, 445
(Pa. Super. 2012) (holding that if the custody evidentiary proceeding
commences on or after January 24, 2011, the effective date of the Act, the
provisions of the Act apply). In custody cases, our standard of review is as
follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
Id. at 443 (citation omitted).
We have stated:
[t]he 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.
-3-
J-A16014-16
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard:
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. 23 Pa.C.S. §§ 5328, 5338. The Act
provides that, upon petition, a trial court may modify a custody order if it
serves the best interests of the child. 23 Pa.C.S. § 5338. Moreover, the Act
sets forth the best-interest factors that the trial court is to consider:
(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
-4-
J-A16014-16
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.
-5-
J-A16014-16
(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).
Mother argues that the trial court abused its discretion and committed
an error of law when it sua sponte modified the travel provisions of the
parties’ consent order. Mother’s Brief at 13. Mother asserts that Father did
not request a modification of the travel provision in his petition for
modification or at the hearing on his petition, such that the trial court’s
modification of the provision is improper. Id. at 13–14. Alternatively,
Mother contends that, if the trial court had authority to modify the travel
provision of the consent order, the modification was contrary to the
Children’s best interests and manifestly unreasonable. Id. at 16–17.
Specifically, Mother asserts the following:
The parties’ custody arrangement has been governed by
the Consent Order for nearly eight years. Under its terms, which
the parties agreed to, the custody exchange location is the
[m]other’s residence in Johnstown, and Father is required to
exchange custody there. Under this arrangement, Father
traditionally has exercised virtually all of his alternating
weekends of custody during the school year at his parents’
house in Johnstown. Father’s parents live approximately two
miles from Mother’s residence.
The trial court’s order designates the Blue Mountain
Service Plaza [on the Pennsylvania Turnpike] as the new custody
exchange location. The Blue Mountain Service Plaza is located
approximately 140 miles from Mother’s residence and 111 miles
-6-
J-A16014-16
from Father’s residence. The trial court’s modification of the
custody exchange location requires the children to travel seven
to eight hours every other weekend during the school year. The
significant travel required of the minor children during the school
year alone is contrary to the children’s best interests.
In addition to forcing the children to travel significant
distances at least two times a month, the trial court’s
modification of the custody exchange location would also have
the effect of forcing the children to miss their extracurricular
activities. In the alternative, if Father exercises his custodial
time in Johnstown so the children do not miss activities, under
the trial court’s order[,] the parties would meet at the Blue
Mountain Service Plaza only for Father to turn the children
around and return [to] Johnstown. This unintended and
unreasonable result was not contemplated by the parties and is
against the children’s best interests.
The substantial distance between Mother and Father’s
residences coupled with the children’s inevitable absence from
their extracurricular activities, illuminate the trial court’s failure
to adequately consider the children’s best interests. The trial
court fails to point to any evidence of record to support its
conclusion that changing the custody exchange location is in the
children’s best interests. To the contrary, the record is replete
with evidence against modification of this provision.
Mother’s Brief at 10–11 (internal citations omitted).
Paragraphs five and six of the trial court’s December 31, 2015 order
provide as follows:
5. The parties shall exchange custody at the Blue Mountain
Pennsylvania Turnpike Service Plaza unless otherwise agreed.
6. All other aspects of the Custody Order executed on
December 31, 20[08], not in conflict with this Order shall remain
in full force and effect.
Order, 12/31/15.
The trial court addressed Mother’s first issue as follows:
-7-
J-A16014-16
Mother contends that the trial court “erred by modifying
the transportation provision [for Father’s] periods of partial
physical custody such that the minor children will now be
required to travel seven to eight hours every other weekend
during the school year, which is neither in the minor children’s
best interest nor supported by the record.” CONCISE
STATEMENT, ¶ 1. Under the Pennsylvania Child Custody Act
[the “Act”], “a court may modify a custody order to serve the
best interest of the child.” 23 PA.C.S.A. § 5338(a).
In this case, Mother and Father live roughly 200 miles
apart. See N.T. (APR. 1, 2015), pgs[.] 79-80 (Mother resides in
Johnstown (western Pennsylvania); N.T. (JAN. 14, 2015), pg. 87
(Father resides in Lincoln University (southeastern
Pennsylvania)). See also N.T. (JAN. 14, 2015), pg. 147; N.T.
(AUG. 21, 2015) pg. 10 (noting that Mother unilaterally moved
the children 200 miles away from Father). Mother argued that
the custody exchange location “unnecessarily put[s] the children
in danger and on the Turnpike and Interstate highways
throughout the year, especially in winter (inclement weather)
and summer (high traffic times), given the distance between the
residence[s].” MOTHER’S EXCEPTIONS, ¶ 11; N.T. (AUG. 21,
2015), pgs. 9-10. Yet, Mother admits that she personally placed
the children in the same “danger” during various visits to her
parents in northeastern Maryland, N.T. (APR. 1, 2015), pgs. 145,
162; her transportation of the children to Father’s residence in
Maryland, N.T. (APR. 1, 2015), pg. 138; her visits to her brother
in Lancaster, Pennsylvania, N.T. (APR. 1, 2015), pg. 163; and
the child’s travel hockey squad, N.T. (APR. 1, 2015), pg. 87.
See also N.T. (AUG. 21, 2015), pgs. 22, 27-28. Additionally,
neither child testified regarding fearing, disliking, or experiencing
adverse feelings about traveling between their parents’
residences. See N.T. (JAN. 14, 2015), pgs. 4-86. Therefore,
the trial court found Mother’s arguments to be disingenuous and
unsupported by the record.
Additionally, the trial court specifically considered the
hearing officer’s discussion regarding custody exchanges:
The Hearing Officer recognizes that the parties
agreed to have Father provide all the transportation
for the custody exchanges when the Custody
Stipulation and Order was entered on December 31,
2008. Father now wants to have Mother do all the
-8-
J-A16014-16
transportation over the summer months and then
share this responsibility the rest of the year. Mother
is content to let the current arrangement remain as
stated in the Order.
The Hearing Officer understands the amount of time
it takes to travel between the parties’ residences and
the costs associated, e.g., gasoline, tolls, etc., with
such travel. Equity and fairness dictate that this
time and these costs be shared equally between the
parties, especially since both have the time and
financial means to transport the children. Because
of the distance involved, the Hearing Officer is
recommending that the parties chose [sic] a point
that is as equidistant as possible between their
respective homes to make the custody exchanges
throughout the year. Should the parties fail to reach
an agreement as to this location, the Hearing Officer
recommends that the exchanges occur at the Willow
Hill Exit on the Pennsylvania Turnpike as this is
roughly the halfway point in time and mileage
between the two homes.
REPORT, DISCUSSION, pgs. 20-21 (referencing CUSTODY
STIPULATION AND ORDER DATED DEC. 31, 2008, ¶ 5).
Further, the trial court reasoned that the Blue Mountain
turnpike exit is a closer halfway point than the Willow Hill
turnpike exit, as follows:
The Blue Mountain Service Plaza along the
Pennsylvania Turnpike is approximately 140 miles
from Mother’s residence and 111 miles from Father’s
residence. Compared to the other Service Plazas,
Blue Mountain is a reasonably close midpoint
between the residences. Father also testified that
while he lives three and a half hours away from
Mother’s residence, his work is four hours away and
he often leaves from work to retrieve the children.
N.T. (JAN. 14, 2015), pg. 88, 93, 147-149. Overall,
Blue Mountain would be a closer midpoint between
Father’s work and Mother’s residence. Additionally,
the [c]ourt notes that Father has provided nearly all
of the transportation for custody exchanges since
-9-
J-A16014-16
2008. See N.T. (JAN. 14, 2015), pg. 208; CUSTODY
STIPULATION AND ORDER DATED DEC. 31, 2008, ¶
5. Thus, any “extra” miles in favor of Father is
reasonable considering he provided nearly all
transportation until this point. Therefore, for all of
the foregoing reasons, the [c]ourt finds the Blue
Mountain midpoint reasonable based on the evidence
provided[.]
OPINION [and Order] DATED DEC. 31, 2015, pgs. 4-5.
Overall, Mother failed to present any legal error regarding
the custody exchanges. Moreover, the trial court found that the
Hearing Officer’s findings and recommendations were
appropriately supported by the record and in the best interests
of the minor children. Therefore, the trial court submits that it
properly modified the parties’ custody exchange location. See
OPINION AND ORDER DATED DEC. 31, 2015.
Trial Court Opinion, 2/29/16, at 3–5.
Additionally, while Mother contends that the trial court improperly
modified the transportation provision of the consent order sua sponte, we
note that in his modification petition, Father described the transportation
issues and expressly requested that he have some partial custody of the
Children at his residence. Petition, 6/23/14, at ¶¶ C, G, and H. At the
hearings, Father requested that Mother be required to provide all
transportation during the summer months. N.T., 1/14/15, at 92–93. Father
also stated that he would like the option of meeting Mother at the midway
point between the two parents’ homes. Id. at 209. We conclude that
Father did indeed place the transportation issues and exchange point before
the court for resolution, and the trial court, therefore, did not improperly
address the matter of custody exchange. Moreover, the trial court did not
- 10 -
J-A16014-16
err or abuse its discretion when it modified the transportation provision if the
parties could not otherwise agree. The trial court considered the best
interests of the Children in selecting the Blue Mountain Service Plaza as a
default exchange location because it is located between the parents’ homes.
Additionally, Mother claims that the trial court erred in altering the
location for exchanges of custody because Father did not specifically request
this relief, and thus, it cannot be granted pursuant to Hill v. Hill, 619 A.2d
1086 (Pa. Super. 1993). Mother’s Brief at 13. First, as we concluded above,
the transportation issues were properly before the court. Additionally,
however, we point out that Hill is readily distinguishable.
In Hill, this Court held that the trial court erred in fashioning an order
that nominally gave the mother and father shared legal custody, but it
effectively granted sole legal custody to the mother because it allowed her
decisions to override father’s decisions in the event of a disagreement. Id.
at 1088. We concluded that the mother never requested sole legal custody
and that the trial court’s hybrid order was not recognized by statute or case
law. Id.
Thus, in Hill, we reviewed an order that granted relief that was not
requested and not permitted by law. Here, transportation was at issue
throughout the proceedings, and Mother has not indicated that the
December 31, 2015 order was a hybrid order otherwise impermissible under
- 11 -
J-A16014-16
statute or case law. Mother’s argument that the trial court’s December 31,
2015 order ran afoul of Hill is meritless.
In her second related issue, Mother argues that the trial court’s failure
to adequately consider the Children’s best interests stems from its failure to
address the relevant custody factors set forth in 23 Pa.C.S. § 5328(a).
Mother asserts that, if the trial court had properly addressed the section
5328(a) factors, it likely would not have reached a conclusion that
modification of the custody exchange location is in the best interest of the
Children. Mother’s Brief at 11–12. Accordingly, Mother requests this Court
to reverse the trial court’s modification of the travel provision of the parties’
consent order.
The trial court addressed Mother’s second issue as follows:
Mother contends that the trial court “erred in relying on
inapposite case law, specifically, M.O. v. J.T.R., 85 A.3d 1058
(Pa. Super. 2014), and failed to consider the sixteen (16)
relevant factors set forth in 23 PA. C.S.A. § 5328(a)(1-16) in
coming to a best interests analysis.” CONCISE STATEMENT, ¶ 2.
Section 5328(a) of the Act establishes mandatory
considerations for a trial court determining best interests in a
custody matter. . . .
Section 5323 of the Act defines an “award of custody,”
reiterates the trial court’s mandatory consideration of the
Section 5328 factors, and requires the trial court to provide its
rationale for the custody award:
(a) Type 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:
- 12 -
J-A16014-16
(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.
* * *
(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.
23 PA. C.S.A. § 5323(a), (d) (emphasis in original). However,
modification of a custody order does not carry the same
requirements as an award of custody and must only “serve the
best interest of the child.” 23 PA. C.S.A. § 5338(a).
The Superior Court of Pennsylvania specifically addressed
this issue in M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014). In
M.O., the parties were subject to a consent order in which the
mother had primary custody of the children and the father had
partial custody, including six summer weeks. Id. at 1060. The
father sought modification of the consent order, as amended,
seeking additional time, a change in transportation
responsibilities, and clarification of the prior order. Id. Just
prior to the custody hearing, the parties resolved all issues by
agreement, except whether the father could work during his
summer weeks of custody. Id. The trial court found in favor of
the father. Id. The mother appealed, claiming, inter alia, that
the trial court committed error and/or an abuse of discretion for
failing to consider the Section 5328 factors. Id. at 1060-1061.
The Superior Court of Pennsylvania explained:
The plain language of Section 5328(a) requires that
the sixteen enumerated factors be considered when
the court is determining a child’s best interest for the
purpose of making an award of custody. By
contrast, while the court must consider the child’s
best interest when modifying a custody order, the
modification provision does not refer to the sixteen
factors of Section 5328. The cases in which we have
applied Section 5328(a) have involved the award of
- 13 -
J-A16014-16
custody as defined by Section 5323(a) or have
involved a modification that also entailed a change to
an award of custody.
Following the hearing in this case, the trial court
made no award of custody. The court was not
deciding physical or legal custody, nor even changing
the amount of custodial time that either party had
with the Children. Rather, the trial court addressed
a subsidiary issue: whether Father was required to
be off from work while the Children stayed with him
for a portion of the summer. After hearing the
evidence that the parties presented limited to that
sole issue, the trial court decided that Father could
work during the three weeks in question. While the
court’s ruling modified its prior order, it did not
change the underlying award of custody. Therefore,
under the facts of this case, Section 5328(a) was not
implicated directly.
Because the trial court did not make an award of
custody, but merely modified a discrete custody-
related issue, it was not bound to address the
sixteen statutory factors in determining the
Children’s best interest.
M.O., 85 A.3d at 1062–1063 (citations and footnotes omitted).
In a subsequent case, the Superior Court further
explained:
A reading of the § 5328(a) factors further supports
our interpretation that all these factors only must be
considered when a “form of custody” is ordered.
Most of the § 5328(a) factors are better suited to
addressing the larger issue of the form of custody to
be awarded, rather than considerations beneficial to
resolving discrete and ancillary disputes relating to
custody. In the latter, the considerations that could
affect a trial court’s decision are myriad. Thus, it
makes little sense for a trial court to analyze each of
the sixteen 5328(a) factors when arbitrating, for
example, a dispute over a custody exchange
location; which youth sports the children should
- 14 -
J-A16014-16
play; or whether a parent should be required to have
children’s toys, beds, or other things in his or her
house. Rather, when read as a whole, it is apparent
that the § 5328(a) factors were designed to guide
the best-interest analysis when a trial court is
ordering which party has the right to a form of
custody.
S.W.D. v. S.A.R., 96 A.3d 396, 403 (Pa. Super. 2014) (footnote
omitted) (original emphasis omitted) (emphasis added).
Although there is no requirement to consider all relevant Section
5328 factors, the trial court must determine whether the custody
modification was in the children’s best interest. M.O., 85 A.3d
at 1063; S.W.D., 96 A.3d at 403.
In the instant case, Father sought additional summer
periods of custody, as well as modifications to the holiday
schedule, transportation requirements, and restrictions.
PETITION TO MODIFY CUSTODY ORDER FILED FOR RECORD ON
JUN. 23, 2014, ¶ 7. Father did not challenge the underlying
award of custody, namely Mother’s primary physical custody and
his partial physical custody. ORDER DATED DEC. 31, 2008, ¶¶
2-4. Similarly, Mother did not challenge the parties’ awards of
custody at the hearings below, in her Exceptions, or on appeal.
See N.T. (APR. 1, 2015) pgs. 79-209; MOTHER’S EXCEPTIONS
FILED FOR RECORD ON JUN. 22, 2015, ¶¶ 8-29; N.T. (AUG. 21,
2015), pgs. 2-21; CONCISE STATEMENT, ¶¶ 1-2. Moreover, the
trial court submits that it carefully considered the best interests
of the child in reaching its determination regarding the issues
raised in Father’s Petition for Modification and the parties’
Exceptions. See supra; REPORT, pgs. 1-28; OPINION DATED
DEC. 31 ,2015, pgs. 2-5. Based on the foregoing, the trial court
was not required to consider the Section 5328 factors before
ruling on discrete and ancillary issues subsidiary to the award of
custody.
Trial Court Opinion, 2/29/16, at 5–8.
We agree that the trial court appropriately relied on M.O. and
considered the custody exchange location without considering the section
- 15 -
J-A16014-16
5328(a) best-interest factors. Accordingly, we affirm the order of the trial
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
- 16 -