M.E.W. v. A.R. ( 2016 )

J-S53002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.E.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
:
A.R. :
:
Appellant :
: No. 264 MDA 2016
Appeal from the Order Entered January 15, 2016 In the
Court of Common Pleas of York County Civil Division at
No(s): 2015-FC-1417-03
BEFORE: BOWES, SHOGAN, FITZGERALD*, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 16, 2016
A.R. (“Mother”) appeals from the January 15, 2016 order which
awarded M.E.W. (“Father”) primary physical custody of their four-year-old
daughter, B.W. We affirm.
B.W. was born during September 2011. Mother and Father were never
married. For the first two years of B.W.’s life, she was cared for primarily by
Mother, as Father worked and attended college in the evenings. After Father
graduated, he took on greater responsibility in caring for B.W.
During 2014, Mother began to exhibit paranoid and irrational
behaviors, and her relationship with Father became strained. Specifically,
she believed that people were breaking into the parties’ home, which
prompted Father to purchase a security camera and motion sensors, and to
change the locks on the doors. Mother also became concerned that
*Former Justice specially assigned to the Superior Court.
J-S53002-16
someone had created a secret blog about her life. Following a Super Bowl
party, Mother threatened Father with a hammer and scratched his face,
accusing him of responsibility for the blog. After Mother accused Father of
sexually abusing B.W., Mother and Father finally separated in July of 2015.
The claims were investigated by child protective services, and deemed
unfounded.
On July 27, 2015, Father filed a complaint for custody in which he
requested sole legal and physical custody of B.W. Father also filed an
emergency ex parte petition for special relief requesting such custody
pending an evidentiary hearing. Father’s emergency petition was denied on
August 12, 2015. The trial court denied the emergency petition and entered
an interim order awarding Mother and Father shared legal and physical
custody.
Following the evidentiary hearing, where the trial court considered,
inter alia, evidence presented by the court-appointed psychologist, Pauline
Wallin, Ph.D.; the trial court awarded Father primary physical custody and
granted Mother partial physical custody. Specifically, Mother was awarded
partial physical custody on alternating weekends from Thursday morning
until Sunday at evening. She also exercised partial custody from 9:00 a.m.
to 7:00 p.m. on the Thursdays that she did not have weekend custody. The
court ordered shared legal custody.
-2-
J-S53002-16
Mother timely filed a notice of appeal on February 12, 2016, together
with a concise statement of errors complained of on appeal. She raises the
following issues for our review:
A. Whether the trial court abused its discretion in granting
primary physical custody to Father, and thus overturning the
Interim Order of August 31, 2015, which provided for a fifty
(50%) percent shared custody schedule and which both parties
testified at trial was working satisfactorily?
B. Whether the trial court abused its discretion in failing to give
appropriate weight to the report and testimony of Pauline Wallin,
Ph.D[.], [who] both parties presented as an expert and who
concluded that either party possessed the mental stability in
order to care for the child?
C. Whether the trial court’s conclusion that Father was better
able to provide stability in the child’s education, family life, and
community life, . . . was unreasonable as shown by the evidence
of record?
Mother’s brief at 4.
Initially, we note the following. Mother’s first issue is waived because
she failed to develop it with any legal argument. See In re W.H., 25 A.3d
330, 339 n.3 (Pa.Super. 2011) (quoting In re A.C., 991 A.2d 884, 897
(Pa.Super. 2010)) (“where an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is waived.”). Of
the remaining two claims, Mother presents her arguments in the reverse
order as the issues are listed in the statement of questions. We address the
claims in the order presented in the brief.
-3-
J-S53002-16
We consider Mother’s issues mindful of our well-settled standard of
review.
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.
V.B. v. J.E.B., 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., 96 A.3d 396, 400 (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).
(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.
-4-
J-S53002-16
(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-S53002-16
(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).
Instantly, in its opinion accompanying the subject custody order, the
trial court discussed its findings with respect to nearly all of the § 5328(a)
factors.1 See Trial Court Opinion, 1/15/16, at 5-9. The court found that §§
5328(a)(2), (4), (5), (9), (10), and (15) weighed in favor of Father to
varying degrees, and that none of the factors militated in Mother’s favor. In
its supplemental opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the court
explained that it awarded primary physical custody to Father since he can
provide a more stable environment for B.W., and since he is better able to
attend to B.W.’s daily needs. Supplemental Opinion, 3/1/16, at 1.
In her first issue, Mother challenges the trial court’s conclusion that
Father is more stable and can better provide for B.W.’s needs. Mother’s
brief at 13-22. This argument corresponds with issue “C” in the statement
of questions presented.
____________________________________________
1
The trial court failed to address § 5328(a)(2.1) in its opinion accompanying
the subject custody order. However, the court discussed Father’s alleged
abuse of B.W., and B.W.’s involvement with child protective services in its
supplemental opinion. See Supplemental Opinion, 3/1/16, at 4.
-6-
J-S53002-16
Mother argues that the trial court abused its discretion in several of its
factual findings. First, Mother challenges the trial court’s finding that she
lives “‘between maternal grandfather’s house and hotel rooms.’” Mother’s
brief at 14-16 (quoting Supplemental Opinion, 3/1/16, at 1). Mother asserts
that she resides with B.W.’s maternal grandfather, and that she spent time
in hotel rooms on only two occasions, as a treat for B.W. Id.
Mother’s argument fails, as the record does not support her claim that
she has stayed in hotel rooms only twice since the separation. During the
custody hearing, Mother testified that she is living with B.W.’s maternal
grandfather, but that “it’s not my home, you know what I’m saying. I like
being in my own home. So we would go to a hotel room just to be silly.”
N.T., 1/8/16, at 145. Mother did not specify how often she stayed in hotel
rooms, but indicated she did this “[s]ometimes, not all the time.” Id. at
218. Given Mother’s testimony, it was reasonable for the trial court to infer
that Mother stays in hotel rooms somewhat regularly. We discern no abuse
of discretion.
Mother next contends that the trial court abused its discretion by
concluding that she “‘doesn’t have any extended family members in this area
aside from maternal grandfather.’” Mother’s brief at 16-17 (quoting
Supplemental Opinion, 3/1/16, at 1). Mother also asserts that the court
concluded incorrectly that she and B.W.’s maternal grandfather do not have
a close relationship. Id.
-7-
J-S53002-16
Mother is correct that B.W.’s maternal grandfather is not the only
extended family that she has nearby. Both Mother and Father testified that
Mother has a sister, a niece, and the niece’s children living in the area. N.T.,
1/8/16, at 46, 229. However, it is clear that the trial court’s erroneous
finding of fact concerning Mother’s extended family does not warrant
reversal of the subject custody order. The location of Mother’s extended
family appears to have played, at best, a minimal role in the court’s custody
decision.
In addition, the record supports the court’s finding that Mother does
not have a close relationship with B.W.’s maternal grandfather. Mother
acknowledged that she and B.W. recently spent Christmas in a hotel room,
rather than with B.W.’s maternal grandfather. Id. at 219. Mother offered
no coherent explanation as to why she would spend Christmas apart from
maternal grandfather. Mother stated only that her mother, B.W.’s maternal
grandmother, had recently passed away, and that “we were all still kind of
mourning in our own ways. . . . I mean, everybody deals with things their
own way.” Id. Thus, the certified record supports the trial court’s finding
that Mother is not particularly close with maternal grandfather.
Mother also argues that the trial court abused its discretion by faulting
her for quitting her job. Mother’s brief at 18-19. Mother insists that she will
likely go back to school or obtain a new job, and that the trial court made an
unwarranted assumption by concluding that she does not have, or will not
have, the financial resources necessary to support herself and B.W. Id.
-8-
J-S53002-16
We again conclude that Mother is not entitled to relief. Mother
testified during the custody proceedings that she resigned from the company
where she had worked for twenty years, and that she does not know what
she wants to do next. N.T., 1/8/16, 162-64. Mother stated that she may go
back to school, but she was undecided on this issue. Id. at 163-64. It was
proper for the trial court to weigh this testimony against Mother. It is clear
that Mother’s compulsive decision to quit her job and her inability to plan for
her and B.W.’s future indicate that she is less stable than Father.
Finally, Mother argues that the trial court abused its discretion by
concluding that she is “‘unable to attend to [B.W.’s] medical needs.’”
Mother’s brief at 19-22 (quoting Supplemental Opinion, 3/1/16, at 2).
Mother argues that she was B.W.’s primary caretaker for the first two years
of the child’s life, and that she is willing and able to schedule medical
appointments for B.W., and to take B.W. to those appointments. Id.
Father testified during the custody hearing that he has taken B.W. to
all of her medical appointments for the previous year and one-half. N.T.,
1/8/16, at 90. Father stated that he assumed this responsibility because
Mother was “fighting with the one office lady” at B.W.’s pediatrician, and
because Mother disliked Father’s dental hygienist. Id. at 56-57. Father
explained, “I started taking [B.W.] to all the appointments to try to avoid all
the extra fighting and drama.” Id. at 57. Father noted that one of B.W.’s
recent medical appointments was scheduled during Mother’s custody time,
and that Mother agreed to take B.W. to the appointment well in advance.
-9-
J-S53002-16
Id. at 72. However, when Father sent Mother a text message reminding her
of the appointment, Mother requested that the appointment be rescheduled.
Id. at 72-73.
Mother admitted during her own testimony that she has asked Father
to schedule B.W.’s medical appointments during his custody time, and
explained, “I don’t think that’s being unreasonable. I don’t think that’s
being -- and if he has a problem with that, that’s something that we need to
start talking about more.” Id. at 203. The trial court questioned Mother
concerning her resistance to taking B.W. to medical appointments, and
Mother testified as follows.
THE COURT: Earlier in talking about the appointments for
doctors currently, I want to make sure I understood your
statement about [Father] scheduling appointments that are on
your time versus his time. I hear you, you do not want him to
schedule doctor appointments that were during your time?
[Mother]: Honestly, I mean, it really doesn’t matter what
time that he sets it, but as long as we know. Like, if he wants
me to start doing it, I mean, it’s something that he does.
THE COURT: Well, then maybe I misunderstood you
because I thought the reason you asked it to be rescheduled was
because it was on your time, and you wanted him to schedule it
on his time.
[Mother]: Yes.
THE COURT: Okay.
[Mother]: But that was just because of that last
appointment because, like I said, he didn’t give me -- yes, he did
tell me in like November, but when the appointment came up, it
was just like that day, can you have [B.W.] there.
- 10 -
J-S53002-16
THE COURT: Did you have a conflict that you couldn’t take
her?
[Mother]: Yes, it was. I was with my daughter, yes. It
wasn’t like I was trying to be vindictive. It was like, I was with
my daughter.
THE COURT: Okay. So you had no conflict other than
being with your daughter?
[Mother]: No, no, no.
N.T., 1/8/16, at 221-22. Accordingly, the record supports the trial court’s
conclusion that Mother has been unwilling or unable to attend to B.W.’s
medical needs. This contention merits no relief.
Mother also argues that the trial court abused its discretion by
concluding that she has mental health issues. Mother’s brief at 22-24.
Mother emphasizes that she was evaluated by Dr. Wallin, who concluded
that there was no evidence indicating that she is mentally unstable. Id. at
23.
In its opinion accompanying the subject custody order, the trial court
found that “no testimony was presented regarding a mental or physical
condition of either party that would impair their ability to care for [B.W.].”
Trial Court Opinion, 1/15/16, at 9. However, the court explained that it has
concerns “regarding Mother’s mental health, judgment, and ability to deal
with stressful situations.” Id. During the custody hearing, Father testified
extensively concerning Mother’s irrational beliefs and actions, including the
incident during which Mother threatened Father with a hammer and
scratched his face. See N.T., 1/8/16, at 60. When asked about the ordeal,
- 11 -
J-S53002-16
Mother made no effort to refute Father’s claim. She described the incident
as follows.
Q. Can you tell the Court what happened in that case?
A. Toward the end of our relationship, it was a lot of arguments.
It was just not a cohesive situation.
Q. What would you argue over?
A. Like he said, like, you know, I felt like things was going on
that he wasn’t being truthful to me about. I felt like being safe
in my home, that was being questioned. I was not feeling safe
in my own home. I don’t think that’s cool at all. So that’s why
we got the cameras and things of that nature. So it was all that
going on. It just wasn’t a cohesive environment because when
you’re telling your man, I’m feeling this, this, and this, and
they’re not believing you, of course. And [Father] is very
passive aggressive. So I’m like, going this, this, and this, and he
not trying to have no discussion, so of course that’s going to
make me want to --
Q. Did you go at him with a hammer?
A. Yes, I did. I’m not going to lie, yes, I did.
Q. Did you hit him?
A. No, I didn’t. I wasn’t going to hit him with a hammer.
Q. Did you threaten to hit him?
A. No. I think it was -- I was talking to him with the hammer in
my hand, but I don’t think I threatened him. But I was just
saying what I had to say with the hammer in my hand. I was
only threatening. I was like, oh, I’m going to knock you in the
head with a hammer.
Q. Why would you have a hammer in your hand?
A. It just happened because, I mean, like I said, to always keep
going to somebody with your concerns and they’re not believing
- 12 -
J-S53002-16
you and they’re not even having a one-on-one conversation
because they’re not believing you, that was just getting on my
nerves. So maybe it was more so like, I am just so sick and
tired kind of situation. So that’s kind of where it went to at that
point for me.
Q. So is it an accurate situation to say that you clawed him?
A. Yes, I did.
Id. at 168-70.
Thus, while Mother is correct that Dr. Wallin concluded that she did not
suffer from a diagnosed mental illness, the certified record confirms that
Mother has a history of engaging in paranoid and violent conduct. As it was
appropriate for the trial court to consider Mother’s behavior in rendering its
best-interest determination, Mother’s claim fails.
For all of the foregoing reasons, we conclude that the trial court did
not abuse its discretion by awarding Father primary physical of B.W. and
granting Mother periods of partial physical custody.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
- 13 -