L.D.W. v. B.E.W. ( 2016 )

J. A04014/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
L.D.W., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1264 WDA 2015
:
B.E.W. :
Appeal from the Order, July 16, 2015,
in the Court of Common Pleas of Westmoreland County
Civil Division at No. 1946 of 2013-D
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 17, 2016
L.D.W. (“Mother”) appeals from the order entered July 16, 2015, in the
Westmoreland County Court of Common Pleas, which awarded the parties
shared legal custody, B.E.W. (“Father”) primary physical custody, and
Mother partial physical custody of H.B.W., born in December of 1997, and
A.R.W., born in August of 2006 (collectively, the “Children”). The order
additionally awarded Father the ability to decide which school A.R.W. is to
attend. After review, we affirm.
A portion of the pertinent factual and procedural history was
summarized by this court previously in memorandum dated March 16, 2015,
as follows:
A.R.W. was born during the marriage of Father
and Mother. N.T., 7/29/14, at 6. Mother legally
adopted Father’s son, H.B.W., born in December of
J. A04014/16
1997, who resides at the Milton Hershey School. Id.
at 5-6. In July of 2013, Father and Mother
separated. Id. at 6. Mother resides in the marital
home with A.R.W., and Father resides in the home of
his paramour, K.M., and her daughter, S., who is one
year older than A.R.W. Id. at 70, 73.
On September 18, 2013, Mother filed pro se a
custody complaint and a separate petition for
emergency relief, where she requested primary
physical custody of A.R.W. and H.B.W., who were
then ages seven and fifteen, respectively. The trial
court denied Mother’s petition for emergency relief.
The court entered a temporary custody order on
November 4, 2013, which indicated it would become
a final order unless one of the parties filed a praecipe
for a pre-trial conference within 30 days. Father
filed a praecipe on November 18, 2013. On
November 20, 2013, the trial court issued an order
scheduling the pre-trial conference for February 11,
2014. Thereafter, the court rescheduled the pre-trial
conference for February 18, 2014, due to a conflict in
the court’s schedule, and again for April 29, 2014,
due to bad weather.
Prior to the pre-trial conference, on
February 21, 2014, Mother filed a notice of
proposed relocation, and proposed relocating with
A.R.W. to Cheswick, in Allegheny County,
Pennsylvania, which Mother alleged was less than
20 miles from the marital residence where she was
currently living. On March 3, 2014, Father filed a
counter-affidavit objecting to the proposed relocation
and to modification of the custody order.
Following the pre-trial conference on April 29,
2014, by order dated April 30, 2014, the court issued
an interim custody order and scheduled the trial on
custody and relocation for July 29, 2014. The
interim order granted Mother primary physical
custody of A.R.W., and Father partial physical
custody on alternating weekends, from Friday after
school until Sunday at 5:00 p.m., and every Tuesday
and Thursday after school until 7:30 p.m.,
-2-
J. A04014/16
inter alia. During the summer, the order granted
Father partial custody on alternating weekends from
Thursday at 5:00 p.m. until Sunday at 5:00 p.m.,
and during the intervening week, from Wednesday at
2:00 p.m. until Thursday at 9:00 a.m., inter alia.
The interim order was silent with respect to the
custody of H.B.W.
At the custody trial on July 29, 2014, the
following witnesses testified: Mother; Father; K.M.,
Father’s paramour; and A.R.W., in camera. By
memorandum and order dated August 18, 2014, the
trial court granted the parties shared legal custody of
A.R.W., Mother primary physical custody of A.R.W.,
and Father partial physical custody of A.R.W. on
alternating weekends and every Tuesday and
Thursday after school or at 4:00 p.m. if there is no
school. The order also set forth a holiday schedule
and granted the parties one week of vacation with
A.R.W. during the summer. The order was silent
with respect to the custody of H.B.W. Further, the
order denied Mother’s request to relocate with
A.R.W. On September 18, 2014, Father filed a
notice of appeal and a concise statement of errors
complained of on appeal.
L.D.W. v. B.E.W., 120 A.3d 1056 (Pa.Super. 2015) (unpublished
memorandum at 1-4) (footnotes omitted).
Pursuant to the memorandum dated March 16, 2015, this court
vacated the order of August 18, 2014 and remanded the matter to the trial
court to: consider all of the Section 5328(a) custody factors, with respect to
both A.R.W. and H.B.W., on the record or in a written opinion; set forth
findings of fact and determinations regarding credibility and weight of the
evidence; and enter a custody order that includes both A.R.W. and H.B.W.
By order dated April 1, 2015, the trial court scheduled a remand trial for
-3-
J. A04014/16
April 21, 2015. At the time of the remand trial, the court conducted a trial
de novo “in order that all facts and circumstances, even those that had
arisen after remand, could be fairly and comprehensively considered.”
(Memorandum and order, 7/16/15 at 1.)1 The following witnesses testified:
Father; Mother; H.B.W.; T.W., Father’s oldest daughter, whom Mother did
not adopt; J.W., Mother’s boyfriend; and A.R.W., in camera. Of note, both
Mother and Father were represented by counsel.2
Following the remand trial, on April 22, 2015, the trial court ordered
the parties to submit a proposed order within ten days. Thereafter, on
July 16, 2015, by memorandum and order, the trial court granted the parties
shared legal custody of the Children, primary physical custody of H.B.W. to
Father, with partial physical custody to Mother as agreed to by H.B.W., and
primary physical custody of A.R.W. to Father, with partial physical custody to
Mother. Specifically, Mother was granted partial physical custody of A.R.W.
as follows: during the school year, every other weekend from Friday at
5:30 p.m. until Sunday at 7:00 p.m., and every Wednesday at 5:00 p.m.
until 8:00 p.m.; and, during the summer vacation, every other week from
Friday at 5:00 p.m. until the following Friday at 5:00 p.m. In addition,
1
The trial court incorrectly indicates that the remand relates to its order
dated September 22, 2015, entered September 25, 2015. (Memorandum
and order, 7/21/15 at 1.) However, as stated in this court’s prior
memorandum dated March 16, 2015, this order was a “nullity.” L.D.W. v.
B.E.W., 120 A.3d 1056 (Pa.Super. 2015) (unpublished memorandum at 10).
2
Mother is represented by new counsel on this appeal.
-4-
J. A04014/16
Father was further granted the ability to decide which school A.R.W. is to
attend, with Mother to have access to all of the school records and be
informed of all school activities by Father. The trial court’s memorandum
analyzed each of the 16 custody factors pursuant to Section 5328(a) and
included findings of fact and determinations regarding credibility and weight
of the evidence. On August 14, 2015, Mother, through counsel, then filed a
notice of appeal and concise statement of errors complained of on appeal.
On appeal, Mother raises the following issues for our review:3
I. Whether the trial court committed an error of
law by not considering Mother’s request for
relocation and by failing to consider the
relocation factors pursuant to 23 Pa. C.S.A.
§ 5337(h)?[4]
II. Whether the trial court committed an abuse of
discretion and an error of law by conducting a
trial de novo as a result of which a custody
modification was effectuated when the case
was remanded from the Superior Court in
order to have the trial court delineate the
custody factors, along with the basis for the
court’s order of August 18, 2014, and when
the Plaintiff/Mother was deprived of due
process because she lacked adequate notice of
the trial court’s intent to modify the August 18,
2014 order?
III. Whether the trial court committed an abuse of
discretion and an error of law by violating
3
We have re-ordered Mother’s issues for ease of disposition.
4
While Mother does not raise this issue in the statement of questions
involved section of her brief, she includes this issue in the summary of
argument and argument sections of her brief. For purposes of
thoroughness, we discuss this issue within.
-5-
J. A04014/16
Pa.R.C.P. 1915.4(d), which required the trial
court to file its decision within fifteen days of
the conclusion of trial when the significant
delay resulted in prejudice to Plaintiff/Mother?
IV. Whether the trial court committed an abuse of
discretion and an error of law by misapplying
and/or failing to analyze the custody factors
set forth in 23 Pa. C.S.A. § 5328(a) and by
failing to render a custody decision that is in
the best interests of the minor children when it
awarded primary custody of the parties’ minor
children to Defendant/Father, as its decision
was against the weight of the evidence
presented at trial?
V. Whether the trial court committed an abuse of
discretion and an error of law by addressing
and assigning school choice, particularly in
light of the fact that the remand was limited to
the trial court delineating and supporting its
August 18, 2014 decision pursuant to the
custody factors, and whether the trial court
abused its discretion in making its own
determination as to which school is better
suited for the minor child?
Mother’s brief at 4, 15-16.
As we stated in E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015),
with regard to our review of a custody order:
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
-6-
J. A04014/16
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.
V.B. v. J.E.B., 2012 PA Super 200, 55 A.3d 1193,
1197 (Pa. Super. 2012) (citations omitted).
“When a trial court orders a form of custody, the
best interest of the child is paramount.” S.W.D. v.
S.A.R., 2014 PA Super 146, 96 A.3d 396 (Pa. Super.
2014) (citation omitted). The factors to be
considered by a court when awarding custody are set
forth at 23 Pa.C.S. § 5328(a).
E.R., 129 A.3d at 527.
23 Pa.C.S.A. § 5328(a) 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.
(3) The parental duties performed by
each party on behalf of the child.
-7-
J. A04014/16
(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
-8-
J. A04014/16
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).
Turning to Mother’s first issue, Mother asserts that the trial court erred
by not considering her request for relocation and by failing to consider the
relocation factors pursuant to 23 Pa.C.S.A. § 5337(h). Mother indicates
that, if the trial court was essentially revisiting or reconsidering all issues, it
should have addressed her request to relocate and the relocation factors set
forth by Section 5337(h). (Mother’s brief at 15.) Mother further argues
that, in determining that she did not establish a right to relocate in its order
of August 18, 2014, the trial court “failed to consider the factors,
weight [sic] the evidence or even consider the burdens of proof[,]” as well
as the best interests of the child. (Id. at 15-16.)
Importantly, neither Mother nor Father raised the issue of relocation
on appeal after denial in August 2014. Further, Mother did not include this
issue in the statement of questions involved section of her brief in the
instant appeal. Therefore, Mother waived this issue. See
-9-
J. A04014/16
Pa.R.A.P. 1925(b)(4) (issues not raised in a concise statement of errors
complained of on appeal are waived); Krebs v. United Refining Company
of Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (finding waiver
where an issue is not included in both a concise statement of errors
complained of on appeal and statement of questions involved section of the
brief). Notwithstanding, Mother further failed to appropriately preserve this
issue as she disputes the trial court’s denial of her relocation in her concise
statement, whereas she raises the trial court’s failure to address her
relocation in her brief. Krebs, 893 A.2d at 797. In any event, by awarding
primary physical custody to Father, Mother’s relocation issue would appear
no longer relevant.
In her second issue, Mother challenges the trial court conducting a trial
de novo after remand. Mother argues that, as the trial court conducted a
trial de novo upon remand, rather than issuing an order upon the existing
record, she received inadequate notice that all prior claims would be
considered and inadequate time to prepare. As a result, Mother avers that
she was deprived of due process. (Mother’s brief at 10-11.)
We disagree with Mother. Initially, we observe that, by order dated
April 1, 2015, the trial court gave notice of the remand trial scheduled for
April 21, 2015. Mother failed to file any motion and made no inquiry,
request, or written objection upon receipt of the notice scheduling the
remand trial. Moreover, Mother voiced no objection, request for
- 10 -
J. A04014/16
continuance, request to present additional testimony and/or evidence, or
request for any other relief on the record at the remand trial. Mother
therefore waived any issue related to the trial de novo as she failed to first
raise it with the trial court. See Pa.R.A.P. 302(a) (providing for waiver of
issues not first raised in lower court); Fillmore v. Hill, 665 A.2d 514, 515-
516 (Pa.Super. 1995) (stating, “[I]n order to preserve an issue for appellate
review, a party must make a timely and specific objection at the appropriate
stage of the proceedings before the trial court. Failure to timely object to a
basic and fundamental error, such as an erroneous jury instruction, will
result in waiver of that issue. On appeal, the Superior Court will not
consider a claim which was not called to the trial court’s attention at a time
when any error committed could have been corrected.” (citations omitted)).
Nonetheless, as indicated previously, the trial court conducted a trial
de novo “in order that all facts and circumstances, even those that had
arisen after remand, could be fairly and comprehensively considered.”
(Memorandum and order, 7/16/15 at 1.) Given the lapse of time between
its decision and this court’s remand, the trial court found it beneficial and
wise to take additional testimony.
THE COURT: Well, we met briefly in chambers with
counsel, and I think the best approach this morning
would be for Mr. [W.] to proceed first on the
remand, rather than just, you know, reissue an
opinion discussing, you know, the elements in a
statute.
- 11 -
J. A04014/16
It appears to be best to get an update from
everybody, see where, you know, what, if anything,
has happened in life since we were last in court. I’ll
try to do a holistic view of the entire case here and
discuss the elements in the statute and renewed
matter that is, you know, relevant.
Notes of testimony, 4/21/15 at 4 lines 2-16. Both parties, who were
represented by counsel, were given 20 days’ notice and the opportunity to
fully participate and question witnesses and present evidence, which they
did. As such, Mother was not deprived of due process. See Everett v.
Parker, 889 A.2d 578, 580 (Pa.Super. 2005).
With her third issue, Mother next raises trial court error for failure to
comply with Pennsylvania Rule of Civil Procedure 1915.4(d). As this issue
involves a pure question of law, our standard of review is de novo, and our
scope of review is plenary. Harrell v. Pecynski, 11 A.3d 1000, 1003
(Pa.Super. 2011) (citations omitted).
Rule 1915.4(d) provides, in part, with regard to disposition of custody
cases:
(d) Prompt Decisions. The judge’s decision shall
be entered and filed within 15 days of the date
upon which the trial is concluded unless, within
that time, the court extends the date for such
decision by order entered of record showing
good cause for the extension. In no event
shall an extension delay the entry of the
court’s decision more than 45 days after the
conclusion of trial.
Pa.R.C.P. 1915.4(d). Here, the trial court conducted a remand trial on
April 21, 2015, and did not issue a decision until July 16, 2015. Mother
- 12 -
J. A04014/16
posits that this delay of 86 days, in violation of Rule 1915.4(d), resulted in
prejudice to herself and A.R.W., as it necessitated that A.R.W. change
schools prior to allowing for consideration of the issues on appeal. (Mother’s
brief at 12-14.) Mother further argues that the mandatory nature of
Rule 1915.4(d), coupled with the prejudice resulting from the delay,
warrants dismissal of the trial court order. (Id. at 14-15.) In so arguing,
Mother largely contests the trial court’s decision with regard to school
choice. (Id. at 12-14.)
We again disagree with Mother. On April 22, 2015, the day after the
remand trial, the trial court entered an order requesting the parties submit
proposed orders within ten days. It is unclear from the certified record if the
parties complied. Regardless, and despite a previous delay in issuing the
August 2014 order, Mother made no request for a more timely decision nor
took any affirmative action with either the trial court or this court. What is
more, Mother appears to be confusing her disagreement, in particular as it
relates to school choice, with prejudice. Although A.R.W. changed schools,
this is a function of the trial court’s decision, not delay. In addition, in
contravention to Mother’s request for dismissal, we note that, while
Subsection (b) of Rule 1915.4 provides for dismissal, either sua sponte with
notice or upon motion, Subsection (d) remains silent in this regard.
Dismissal of the trial court’s order is therefore not appropriate.
- 13 -
J. A04014/16
In her fourth issue, Mother asserts that the trial court committed an
abuse of discretion and an error of law by misapplying and/or failing to
analyze the custody factors set forth in 23 Pa.C.S.A. § 5328(a) and by failing
to render a custody decision that is in the best interests of the Children
when it awarded primary custody to Father, as its decision was against the
weight of the evidence presented at trial. Mother argues that the trial
court’s failure to appropriately analyze the custody factors and interpret and
weigh the evidence resulted in a decision, as it relates to A.R.W., which
placed A.R.W. in the “primary custody of a parent who was not as involved
or emotionally supportive.” (Mother’s brief at 16.) Mother contends that
“[b]y relying on faulty or misinterpreted evidence, overlooking other
evidence favorable to Mother or negative for father, and ignoring the weight
of the evidence supporting Mother as primary custodian, the Trial Court has
failed to craft a custody schedule that is in the best interests of the Minor
Child[.]” (Id. at 17). Specifically, Mother takes issue with the trial court’s
interpretation of evidence regarding school, daycare, the condition of the
marital residence, and abuse. (Id. at 17-23.) Mother further avers that the
trial court’s decision not only neglects her role as primary caregiver, but
does not consider the impact on A.R.W.’s stability. (Id. at 23-24.)
As we construe this issue, Mother questions the trial court’s findings of
fact and determinations regarding credibility and weight of the evidence.
Under the aforementioned standard of review applicable in custody matters,
- 14 -
J. A04014/16
these are not disturbed absent an abuse of discretion. See E.R., 129 A.3d
at 527. Upon review, we find no error of law or abuse of discretion.
In the case at bar, as directed by this court on remand, and as
required by law, the trial court carefully analyzed and addressed each factor
under Section 5328(a) in considering the Children’s best interests.
(Memorandum and order, 7/16/15 at 4-11.) In concluding and summarizing
its analysis, the trial court stated:
As stated above, based on [H.B.W.]’s age and his
reasoning, his preference will be given significant
weight, and will be the determining factor in his
custody schedule. An order granting the Father
primary physical custody of [H.B.W.] and leaving the
Mother’s partial physical custody up to [H.B.W.]’s
discretion will be entered.
Although it appears that [A.R.W.] is extremely
bonded to the Mother, there is a strong bond
between her and the Father. In considering the
factors, specifically with the testimony that was
offered at the April 2015 trial, it appears to be in the
best interest of [A.R.W.] to grant the Father primary
physical custody, with the Mother receiving
substantial partial custody. The evidence presented
indicates that the Father is more able to promote
relationships between [A.R.W.] and her siblings, as
well as extended family, which the Mother does not
appear to be able to do.
Furthermore, the testimony regarding the Mother’s
residence, and photos offered in support, indicate an
unstable and unsuitable environment for [A.R.W.] to
live in primarily. Additionally, the Mother failed to
offer sufficient evidence to lead the Court to believe
that remaining in Harvest Baptist Academy is in
[A.R.W.’s] best interest. The Father, on the other
hand, provided information to the Court regarding
- 15 -
J. A04014/16
the Kiski School District regarding academic standing
and score rating.
For these reasons, an order granting the Father
primary physical custody of [A.R.W.], with the
Mother having substantial partial custody will be
entered.
Id. at 11-12. Thus, after review of the record, we determine that the trial
court’s findings regarding the custody factors set forth in Section 5328(a)
and determinations regarding best interests are supported by competent
evidence in the record, and we will not disturb them. See E.R., 129 A.3d at
527.
Lastly, we consider Mother’s allegation of error and abuse of discretion
as a result of the trial court addressing and assigning school choice and
making its own determination as to which school was better suited for
A.R.W. Mother argues that, not only was it improper for the trial court to
consider school choice on remand, but that the trial court should have
considered the factors pursuant to Section 5328(a) in rendering its decision.
(Mother’s brief at 11-12.) Mother contends that “moving the child from a
school she has attended for two years, and for which there is no significant
evidence of problems or deficiencies, is not in the best interests of the
child[. . . .]” (Id. at 12.)
We first observe that Mother made no objection, other than
evidentiary, to the testimony and evidence regarding school choice at the
remand trial. Mother therefore waived any issue related to the trial court
- 16 -
J. A04014/16
addressing this issue for failure to raise it below. See Pa.R.A.P. 302(a);
Fillmore v. Hill, 665 A.2d at 515-516.
Further, looking to Mother’s allegation with regard to consideration of
the Section 5328(a) factors, we have clarified that the factors under
Section 5328(a) are required to be addressed where an order impacts an
award of custody and does not merely deal with a discrete and distinct issue.
S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014).
It is also true that resolution of an otherwise
ancillary matter may affect a form of custody and
require consideration of the § 5328(a) factors. For
instance, the choice of a child’s school may factor
into a trial court’s decision to award a form of
custody when the trial court is addressing a request
to establish or change legal or physical custody in
connection with the choice of school. One parent in
a custody dispute may argue that he or she is
entitled to primary physical custody because his or
her residence has much better schools. On the other
hand, many times--like here--these items may
appear as independent, discrete issues advanced by
motion or petition that does not require a change in
the form of custody. Although any decision requires
consideration of the child’s best interest, only the
former situation requires consideration and
application of the § 5328(a) factors.
Id. at 403. In the instant matter, the trial court clearly considered school
choice in the context of its determination of best interests and examination
of the Section 5328(a) factors. In fact, the court expressed, “On the
surface, the resolution of the question of school choice would appear as a
singular, discrete matter, but in the case herein, the choice of school weighs
heavily on the custody arrangement that will best serve [A.R.W.]”
- 17 -
J. A04014/16
(Memorandum and order, 7/16/15 at 1 (footnote omitted).) It follows that
the trial court discussed school choice throughout its analysis, in particular
as it relates to A.R.W., with regard to Factor 1, which party is more likely to
encourage and permit frequent and continuing contact between the child and
another party, Factor 4, the need for stability and continuity in the child’s
education, family life and community life, Factor 7, the well-reasoned
preference of the child, based on the child’s maturity and judgment, and
Factor 13, the level of conflict between the parties and the willingness and
ability of the parties to cooperate with one another. (Id. at 6-10.)
Specifically, with regard to Factor 4, in finding that the factor favors Father,
the trial court stated, in part:
The testimony offered by the Father at the
April 2015 trial is that [A.R.W.]’s grades have been
declining at the Harvest Baptist Academy. . . . The
Father testifies that he does not believe that
[A.R.W.] is getting a quality education or advancing
her social skills at the Harvest Baptist Academy. He
states that the school has no rating and that it is not
a licensed school. He believes that only having
8-12 children in a class does not allow [A.R.W.] to
improve her social skills the way a child her age
needs. The Mother also testifies that [A.R.W.] is not
currently in any activities.
Id. at 6-7. Likewise, as to Factor 13, the trial court indicated:
There is high conflict between the parties in
this case. Although it does appear that the Mother,
although possibly not intentionally, through her
enrollment of [A.R.W.] in Harvest Baptist Academy
and the use of multiple daycare agencies, interferes
with the relationship between the Father and
[A.R.W.] The conflict and animosity between the
- 18 -
J. A04014/16
parties is from both sides, though the Mother seems
more purposeful.
Id. at 10. Moreover, as referenced above, in concluding, the trial court
noted Mother’s lack of evidence regarding Harvest Baptist Academy as
compared to Father’s evidence in support of Kiski Area School District.
Again, the trial court stated, “Additionally, the Mother failed to offer
sufficient evidence to lead the Court to believe that remaining in Harvest
Baptist Academy is in [A.R.W.’s] best interest. The Father, on the other
hand, provided information to the Court regarding the Kiski School District
regarding academic standing and score rating.” (Id. at 11-12.) As such,
after review, we discern no error of law or abuse of discretion.
Accordingly, for the foregoing reasons, we affirm the order of the trial
court awarding the parties shared legal custody, Father primary physical
custody and Mother partial physical custody of the Children, and Father the
ability to decide which school A.R.W. is to attend.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
- 19 -