D.C.L. v. T.C.L.B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.C.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
T.C.L.B. :
:
Appellant : No. 41 EDA 2018
Appeal from the Order Dated November 21, 2017
In the Court of Common Pleas of Bucks County
Domestic Relations at No(s): 2009-63987
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 03, 2018
Appellant, T.C.L.B. (“Mother”), appeals from the order entered in the
Bucks County Court of Common Pleas, which granted the petition of Appellee,
D.C.L. (“Father”), to modify custody, concerning the parties’ minor son, D.L.
(“Child”). We affirm.
The trial court opinion fully sets forth the relevant facts and procedural
history of this case. Therefore, we summarize them as follows. Mother and
Father were married on February 22, 2007, separated in February of 2010,
and divorced on September 10, 2010. They have one male child together who
was born in August of 2008. Both Mother and Father have remarried. Mother
and Stepfather live in Haddonfield, New Jersey with their one child. Mother
works full-time for the Federal Aviation Administration at the Philadelphia
International Airport, and part-time for the New Jersey Air National Guard.
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* Retired Senior Judge assigned to the Superior Court.
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Stepfather is a retired United States Air Force and commercial pilot. Father
and Stepmother live in Langhorne, Pennsylvania with their one child. Father
works full-time as a cardiologist in Bucks County. Stepmother is currently
unemployed. Father also has several other children from prior marriages
before his marriage to Mother.
In Father’s divorce complaint of January 19, 2010, he sought partial
physical custody of Child. On February 19, 2010, Mother and Father reached
a Stipulation Agreement to share legal custody and for Mother to have primary
physical custody of Child, subject to Father’s periods of partial physical
custody. Subsequent to the Stipulation Agreement, disputes arose regarding
the custody of Child. The court held a custody hearing on April 24, 2014, and
ordered a custody evaluation. On October 16, 2014, Father filed a petition to
modify custody. After a custody hearing on November 14, 2014, the court
again ordered a custody evaluation. On December 15, 2014, the court
appointed Dr. Cooke to perform the custody evaluation.
During 2015, the New Jersey Division of Child Protection and
Permanency (“DCPP”) became involved due to reports that Mother was driving
while intoxicated with Child in the car. On April 22, 2015, Mother attempted
suicide because she believed DCPP was going to take Child from her.
Consequently, the New Jersey court temporarily transferred physical custody
of Child to Father. Child remained in Father’s custody from April 23, 2015 to
November 4, 2015, after which the 2010 custody order was restored.
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On February 8, 2016, Dr. Cooke issued a custody evaluation report,
opining that Mother should have primary physical custody. Following Dr.
Cooke’s report, the court held nine additional custody hearings. On November
21, 2017, the court entered a custody order granting Father primary physical
custody of Child, subject to Mother’s periods of partial physical custody.
Father filed an emergency petition for contempt on November 28, 2017,
alleging Mother had failed to transfer Child to him per the court’s custody
order. On November 30, 2017, the court held a hearing and found Mother in
contempt. The court also issued an interim order suspending Mother’s partial
physical custody for failure to transfer custody, pending another hearing. On
December 19, 2017, Mother timely filed a notice of appeal and Rule
1925(a)(2)(i) statement, at docket 41 EDA 2018, from the November 21,
2017 custody order. On December 21, 2017, the parties appeared before the
court, but after being advised of Mother’s notice of appeal, the court cancelled
the hearing and kept the November 30, 2017 interim order suspending
Mother’s partial custody in effect. On December 22, 2017, Mother filed a
second notice of appeal, at docket 42 EDA 2018, from the November 30, 2017
order. On February 6, 2018, this Court sua sponte quashed the appeal at
docket 42 EDA 2018, as interlocutory.
Mother raises the following issues for our review:
WAS IT AN ERROR AND AN ABUSE OF DISCRETION FOR THE
TRIAL COURT TO REJECT THE REPORT AUTHORED AND THE
TESTIMONY OFFERED BY THE NEUTRAL CUSTODY
EVALUATOR IN FASHIONING AN ORDER THAT
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TRANSFERRED PRIMARY PHYSICAL CUSTODY OF THE
SUBJECT CHILD FROM [MOTHER] TO [FATHER]?
WAS IT AN ERROR AND AN ABUSE OF DISCRETION FOR THE
TRIAL COURT TO REJECT OR IGNORE VOLUMINOUS AND
SUBSTANTIVE EVIDENCE IN FASHIONING AN ORDER THAT
TRANSFERRED PRIMARY PHYSICAL CUSTODY OF THE
SUBJECT CHILD FROM [MOTHER] TO [FATHER]?
WAS IT AN ERROR AND AN ABUSE OF DISCRETION FOR THE
TRIAL COURT TO ENTER AN ORDER THAT WAS PUNITIVE
TO [MOTHER] AND CONTRARY TO THE BEST INTEREST OF
THE SUBJECT CHILD?
(Mother’s Brief at 6).
In reviewing a child custody order:
[O]ur scope is of the broadest type and our standard is
abuse of discretion. This Court 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, this Court must defer
to the trial judge who presided over the proceedings and
thus viewed 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.
S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation
omitted). “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.” A.D. v. M.A.B., 989 A.2d 32, 36 (Pa.Super.
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2010).
When deciding whether to modify an existing custody order, the trial
court must consider all of the factors set forth at 23 Pa.C.S.A. § 5328(a).
J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011). The Child Custody Act (“Act”)
provides:
§ 5328. Factors to consider when awarding custody
(a) Factors.−In ordering any form of custody, the court
shall determine the best interest of the child by considering
all relevant factors, giving weighted consideration to those
factors which affect the safety of the child, including the
following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is a
continued risk of harm to the child or an abused party
and which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.
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(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.A. § 5328(a). The amount of weight a trial court gives to any one
factor is largely within the court’s discretion. M.J.M. v. M.L.G., 63 A.3d 331,
339 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013)
(explaining trial court’s purview, as finder of fact, is to determine which factors
are most salient and critical in each particular case).
Further, the trial court is not required to accept the conclusions of a
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custody evaluator in a child custody case. M.A.T. v. G.S.T., 989 A.2d 11(Pa.Super. 2010) (en banc). “It is an abuse of discretion, however, for a trial
court to dismiss as unpersuasive, and to totally discount, uncontradicted
expert testimony.” Id. at 19. Thus, the trial court must consider a custody
evaluator’s conclusions, “and if the trial court chooses not to follow the
expert’s recommendations, its independent decision must be supported by
competent evidence of record.” Id. at 20.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Susan Devlin
Scott, we conclude Mother’s issues merit no relief. The trial court opinion fully
discusses and properly disposes of the questions presented. (See Trial Court
Opinion, filed January 24, 2018, at 6-20; 22-23) (finding: court considered
but did not accept Dr. Cooke’s recommendation for Mother to retain primary
physical custody of Child because: (a) Dr. Cooke discounted Mother’s history
of alcoholism and its impact on Child; (b) Dr. Cooke’s conclusion that Mother
and Father withheld Child for equivalent periods of time is not supported by
record, which shows Mother withheld Child from Father more often; (c) Dr.
Cooke did not consider Mother’s Post Traumatic Stress Disorder; (d) Dr.
Cooke did not assess Mother’s extreme dislike of Father, which court found
unwarranted; (e) Dr. Cooke did not take into account that Stepfather is
significant, if not primary, caregiver for Child when Child is in Mother’s care
during week; (f) Stepmother’s criminal history was for non-violent offenses
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and relatively insignificant; (g) Stepmother’s attempts to replace Mother have
been unsuccessful; (h) Child is not alienated from Mother; (i) Father was
primary caregiver when Child resided with him and is parent who can better
maintain loving, consistent and nurturing relationship with Child and attend to
Child’s emotional needs; awarding primary physical custody of Child to Father
is in Child’s best interests).1 Accordingly, we affirm on the basis of the trial
court opinion.
Order affirmed.
Judge Platt joins this memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/18
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1 We decline to dismiss this appeal for vagueness of Mother’s Rule
1925(a)(2)(i) statement. The trial court adequately addressed Mother’s
appellate issues in its opinion and remarks from the bench on November 21,
2017 (attached to the court’s opinion as Exhibit “B”). Moreover, to the extent
the trial court did not address any of Mother’s precise claims on appeal, those
claims would be waived for vagueness; and we would still decline to dismiss
the appeal on that basis. See In re K.L.S., 594 Pa. 194, 934 A.2d 1244(2007) (noting if appellant waives issues on appeal, then we should affirm
trial court’s decision rather than quash or dismiss appeal); In re A.B., 63 A.3d
345 (Pa.Super. 2013) (explaining this Court may deem issues waived on
appeal where concise statement is too vague to permit meaningful review).
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