Legal Research AI

D.W. v. T.M.

Court: Superior Court of Pennsylvania
Date filed: 2022-04-26
Citations:
Copy Citations
Click to Find Citing Cases

J-A08004-22


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    D.W.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    T.M.                                       :
                                               :
                       Appellant               :   No. 1390 WDA 2021

               Appeal from the Order Entered November 1, 2021
    In the Court of Common Pleas of Bedford County Civil Division at No(s):
                                  704-2020


BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED: April 26, 2022

        T.M. (Mother) appeals from the custody order, dated October 28, 2021,

and entered on November 1, 2021, directing that D.W. (Father) shall have

primary custody of the parties’ child, L.W. (Child), with Mother having partial

custody on three out of four weekends during the school year. During summer

vacation periods, Mother shall have primary custody of Child, while Father

shall have partial custody on various weekends.1 After review, we affirm.

        In the Pa.R.A.P. 1925(a) opinion, dated December 16, 2021, the trial

court provided a brief overview of this matter, stating:

        The [C]hild was born out of wedlock [i]n August [of] 2014. The
        Father filed a Complaint for Custody and Petition for Special Relief
        on August 20, 2020, asking the [c]ourt to continue the informal
        agreement of the parties wherein the [C]hild would continue to
        reside primarily with Father during the school year, attend the
        Bedford Area School District and spend most weekends with
____________________________________________


1   The parties share legal custody of Child.
J-A08004-22


      [Mother]. Thereafter, [Mother] filed multiple Petitions for Special
      Relief.    Ultimately, [Mother] was seeking primary physical
      custody. Whereas Father was seeking to retain primary physical
      custody during the school year with one (1) weekend each month
      and [Mother] would have physical custody [all] other weekend[s]
      of each month, as well as a weekly rotation of custody during the
      summer months. Custody hearings were held on August 11,
      2021[,] and October 28, 2021[,] and this [c]ourt entered a
      custody [o]rder on October 28, 2021. The instant appeal was
      timely filed on November 23, 2021.

Trial Court Opinion (TCO), 12/16/2021, at 1-2 (unnumbered) (footnotes

omitted). The rest of the court’s opinion includes the list of Mother’s issues

and the court’s statement that it “placed its reasoning on the record following

the hearing held on October 28, 2021….” Id. at 3 (citing N.T., 10/28/2021,

at 57-65). Essentially, the notes of testimony contain the court’s review of

the custody factors listed at 23 Pa.C.S. § 5328(a)(1)-(16).

      We now turn to the issues Mother sets forth in her brief.

   1. Whether the trial court erred in determining the best interest of
      the [C]hild would best be suited by residing with Father/Appellee,
      based upon a totality of the circumstances as evidenced by a
      review of the custody factors.

   2. Whether the trial court erred by indicating that factor three,
      concerning parental duties, favors the Father/Appellee only
      because the Father/Appellee has had custody up until that time.

   3. Whether the trial court erred by indicating that factor four favors
      Father/Appellee because the [C]hild has consistently attended
      school in Bedford Area as he has been residing in Bedford, PA.

   4. Whether the trial court erred by indicating that factor nine favors
      Father/Appellee because the [C]hild has already been residing
      with Father/Appellee, and Father/Appellee can provide a much
      more stable relationship due to the [C]hild already being located
      there.


                                     -2-
J-A08004-22


   5. Whether the trial court erred by indicating that factor ten favors
      Father/Appellee due to Father/Appellee already having custody.

   6. Whether the        trial court erred by weighing the factors
      inappropriately     as it appears to give Father/Appellee on the
      custody factors    due to Father/Appellee having primary custody at
      time of hearing    [sic].

Mother’s brief at 4-5.

      The scope and standard of review in custody matters 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.

            With any child custody case, the paramount concern is the
      best interests of the child. This standard requires a case-by-case
      assessment of all the factors that may legitimately affect the
      physical, intellectual, moral and spiritual well-being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted)).

      “[W]hen making a custody award, ‘[t]he court shall delineate the

reasons for its decision on the record in open court or in a written opinion or

order.’” Id. at 335. The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S. § 5328(a), which provides as follows:




                                       -3-
J-A08004-22


     (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.

           (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.

                                     -4-
J-A08004-22



            (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).

      As noted above in her list of issues, Mother acknowledged that many of

the factors did not favor either party or were even. However, she contends

that the trial court erred in finding that factors (3), (4), (9) and (10) favored

Father. Specifically, with regard to these four factors, the court stated:

      The third factor is the parental duties performed by each party on
      behalf of the [C]hild. It seems to me that the [F]ather has been
      the primary custodian for several years now, and has performed
      parental duties on behalf of the [C]hild, and the [C]hild appears
      to have a fairly consistent routine at the [F]ather’s house. He
      appears to be thriving there. I would also note that the [M]other,
      at least in the last few years[,] has consistently had custody of
      the [C]hild on the weekends. And it would seem to me that[,]
      during her periods of custody[,] she does certainly perform
      parental duties on behalf of the child.

      The fourth factor is the need for stability and continuity in the
      [C]hild’s education, family life and community life. The testimony
      has revealed that this [C]hild has consistently attended school in


                                      -5-
J-A08004-22


     the Bedford School District and he appears to be doing quite well.
     He is reportedly a very social child, makes friends easily and is
     involved with some extra-curricular activities. The [M]other did
     express concern as to the [C]hild missing school or being tardy on
     several occasions during the school year last spring, but it would
     seem to me as though that does not appear to be a current issue
     this fall. And the [c]ourt also heard testimony that the [C]hild, as
     I said, appears to be very social and friendly, and that he’s easily
     made friends both here in Bedford County, as well as[] where his
     [M]other lives in [Lemoyne].

                                     . . .

     The ninth factor is which party is more likely to maintain a loving,
     stable, consistent and nurturing relationship with the [C]hild,
     adequate for the [C]hild’s emotional needs. It seems pretty clear
     to me that everybody involved in this case[,] or everybody
     involved with this [C]hild[,] loves him dearly. I think that the
     [F]ather, though, has demonstrated a bit more stability for the
     [C]hild than the [M]other has in recent years. Prior to moving to
     [Lemoyne] in, I believe, September of 2019[,] the [M]other
     admittedly stated that she was not doing well, and at times wasn’t
     consistently in the [C]hild’s life, at least during the summer prior
     to her move. As I’ve previously indicated in those intervening
     years at least [sic] September of 2019, Father has consistently
     had primary custody and consistently met the [C]hild’s education
     needs, his daily physical needs, his emotional needs, as well as
     his medical needs. But again, I don’t want to minimize the
     [M]other’s involvement. Clearly[,] she’s been involved with the
     [C]hild. But I would just indicate it seems to me that the [F]ather
     has been more stable in that regard.

     And actually[,] that rationale I just provided also somewhat
     addresses the tenth factor, which is which party is more likely to
     attend to the daily, physical, emotional developmental,
     educational and special needs of the [C]hild.

N.T., 10/28/2021, at 59-60, 61-62.

     Now we turn to the issues raised by Mother in her brief, which she

acknowledges all concern the same argument.         See Mother’s brief at 9.

Mother summarizes this argument as follows:


                                     -6-
J-A08004-22



      The [l]ower [c]ourt erroneously gave Father preference on factors
      three, four, nine and ten, thus awarding him primary custody on
      the sole basis that the [C]hild had been residing with Father
      previous to the hearing. The [l]ower [c]ourt found that Mother is
      just as capable as providing for the [C]hild as Father, such as
      performing parental duties, maintaining loving relationships, etc.,
      however, Father was favored only because the [C]hild had been
      residing with [him for] a period of time prior to the hearing. The
      [c]ourt cannot provide this favoritism to a parent due to them
      having more time with a child when the [c]ourt specifically finds
      that Mother is equally capable of performing these duties herself.
      For the [c]ourt to award primary custody to Father was a clear
      abuse of [its] discretion; therefore, the [l]ower [c]ourt erred.

Id.

      Underlying this argument is Mother’s contention that the trial court

“improperly gave too much credence to the existing custody of the [C]hild at

the time of the hearings.” Id. at 10. She also asserts that the trial court

“placed [an] inappropriate [amount of] weight [on] the fact that Father had

been the primary custodian for several years[] and, therefore, performed the

majority of the parental duties on behalf of the [C]hild, plus the [C]hild

appeared to have a fairly consistent routine while at the Father’s house.” Id.

at 11. Essentially, each of Mother’s arguments directed at each issue rests on

her position that the trial court “weighed too heavily in favor of [Father] only

due to him having custody of the minor [C]hild at the time of the hearing.”

Id. at 12. Mother also contends that her life is more stable than Father’s

because he is relying on his grandmother for financial assistance as he is not

presently employed.      Additionally, Mother’s arguments center on her




                                     -7-
J-A08004-22



contention that many of the factors in section 5328(a) should have been found

to favor her, which is contrary to the trial court’s conclusions.

      Based upon our review of the record, we conclude that the trial court

considered all relevant factors and that its findings are supported by the

record. Mother is primarily requesting that we reject the trial court’s findings

and credibility determinations and accept the findings that she proposes. In

other words, Mother is requesting that this Court make independent findings

rather than accept the trial court’s findings that are supported by competent

evidence in the record. We cannot do so. Rather, as we stated above,

      [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.

J.R.M., 33 A.3d at 650. Moreover, we recognize that this must have been a

difficult decision for the trial court in that both parents love their Child and

wish to provide Child with a good life. 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) (quoting

A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010)). Because we do not

determine that the trial court’s conclusions are unreasonable in light of the

sustainable facts, we affirm the trial court’s order.

      Order affirmed.




                                      -8-
J-A08004-22


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2022




                          -9-