A.B. v. K.K. ( 2015 )

J-A01045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.B., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
K.K.,
Appellant No. 1423 WDA 2014
Appeal from the Order entered August 22, 2014,
in the Court of Common Pleas of Blair County,
Civil Division, at No(s): 2011 GN 3875
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 18, 2015
K.K. (“Mother”) appeals from the order dated August 20, 2014, and
filed on August 22, 2014, which awarded A.B. (“Father”) and Mother shared
physical and legal custody of the parties’ daughter, K.B. (“Child”) (born in
January of 2008). The order also granted Mother’s petition to relocate to
Altoona, Pennsylvania, and denied Father’s petition for modification seeking
primary legal and physical custody of Child in Texas. We affirm.
We adopt the factual and procedural history as recounted by the trial
court:
Mother and Father are the parents of [Child]. Mother currently
lives with her great-grandparents in Cambria County,
Pennsylvania and is petitioning for relocation to Altoona,
[Pennsylvania]. Father lives in Texas and is petitioning for
relocation there. Neither party is married but both are engaged.
Mother works at Applebee’s and is going to nursing school. Her
fiancé works at Applebee’s and has a degree in biology from
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Penn State. He is looking for a job as an inspector of mines. He
has a house in Altoona where Mother wants to move to live
together with him, their daughter, and [Child]. Father and his
fiancée are teachers. Father teaches [fifth] grade in Texas,
where he moved to get a teaching job. He lives with his
fiancée and her two sons, ages [eight] and [six]. His father
lives in Texas as well. Mother’s large extended family and the
rest of Father’s extended family lives in the Altoona,
[Pennsylvania] (Blair County) area. [Child] is close
emotionally to both Mother and Father’s extended families.
[Child] is [six] years old and will enter first grade this fall.
The testimony revealed that neither Mother’s fiancé nor
Father’s fiancé have any criminal record or any other thing
about them that would be any danger to [Child]. They both
testified credibly that they had a close relationship to [Child]
and would promote her welfare. The parties communicate
sufficiently well for the [trial c]ourt to enter a shared custody
order. Neither party alleges current drug or alcohol abuse by
the other or a member of their household. There was
testimony that Mother’s paramour had a DUI in 2006;
however, the testimony also was that he no longer drinks.
There was no current allegation of physical abuse by any
party and no relevant evidence of past abuse. The testimony
revealed that neither parent is attempting to turn [Child]
against the other parent.
Mother testified that Father swore at her on the
telephone at one point but objectively the level of conflict
between the parties is not extremely high. Both parents have
performed parental caretaking duties for [Child], and both are
capable of doing so. Mother testified credibly that she has
been [Child]’s primary caretaker. Both parties allow [Child] to
contact (call) the other when [Child] is with them, although
Mother alleges that Father monitors [Child]’s calls and that
sometimes [Child] is not available when she calls. Father
restricted [Child] to one call per day from Mother’s family after
multiple members of her large extended family called [Child]
each day. This restriction was not inappropriate in light of the
testimony about Mother’s family in terms of how many calls
would have been placed absent any restriction. [Child] was
interviewed, but at age six, her testimony cannot be taken as
mature or well-reasoned. She said she wanted to live with
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her Mother although she loved her father and wanted to visit
him in Texas. Her testimony bordered on the edge of being
incompetent because of immaturity. There was testimony of
Father’s fiancé’s son having a mild emotional condition that
would not affect [Child]. Otherwise, the mental and physical
health of the parties and their household members is good
and is not a factor in this case.
Trial Court Opinion, 9/26/14, at 1-3 (unpaginated).
On November 3, 2011, Father filed a pro se custody complaint. On
January 12, 2012, following a hearing, the trial court granted Mother and
Father shared legal and physical custody of Child, and ordered that Child
was to reside with Mother. On May 23, 2012, Father filed a petition for
modification. The petition was subsequently withdrawn, and the trial court
canceled the scheduled conference.
On February 25, 2013, Father filed another petition for modification.
On April 23, 2013, the trial court ordered Mother and Father to share legal
and physical custody of Child, with Child to reside with Mother in Ashville,
Pennsylvania. The trial court also scheduled a “custody prehearing
conference” for May 24, 2013, and a “custody evidentiary hearing” for
August 23, 2013. Father moved to Texas and accepted a teaching position
with the Copperas Cove Independent School District. Following the custody
evidentiary hearing, on August 29, 2013, the trial court ordered that Mother
and Father share physical and legal custody of Child, and that Child continue
to reside with Mother. Additionally, the trial court ordered that any
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transportation costs, and flights from Pennsylvania to Texas, primarily be
paid by Father.
On May 7, 2014, Father filed a petition for modification seeking
primary legal and physical custody, alleging that he had established
permanency in Texas and had a permanent job teaching and a permanent
home. A custody conciliation was held but the parties did not reach an
agreement. On June 26, 2014, Father requested an evidentiary hearing. On
August 1, 2014, Mother filed a petition to relocate to Altoona, Pennsylvania.
Mother sought to live with her fiancé at his home in Altoona. On August 13,
2014, Father filed a counter affidavit to Mother’s petition for relocation,
requesting an evidentiary hearing.
A hearing convened on August 15, 2014. The following witnesses
testified: Maria Zelenski, kindergarten teacher at Child’s school; K.R.,
Father’s fiancé; T.W., Maternal Grandmother; B.S., Mother’s fiancé; C.K.,
Maternal Great-Grandmother; Father; and Mother. Child testified in camera.
On August 22, 2014, the trial court ordered Mother and Father to share legal
and physical custody of Child, granted Mother’s petition for relocation to
Altoona, Pennsylvania, and denied Father’s petition. The August 22, 2014
order also directed that Child reside with Mother during the school year, and
that Mother and Father share transportation costs of the flights from
Pennsylvania to Texas.
Mother appealed. She presents this Court with two issues:
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1. Whether the court erred and/or abused its discretion in
drafting an Order so restrictive as to appear to be punitive,
and allowing for [C]hild to miss school[?]
2. Whether the court erred in dividing the cost of transportation
equally without any evidence regarding the ability of the
parties to do so[?]
Mother’s Brief at 6.
Initially, we note that Mother’s second issue regarding transportation
expenses is waived because Mother failed to raise this issue in her Pa.R.A.P.
1925(b) statement. See Pa.R.A.P. 1925(b)(vii).
With regard to Mother’s first issue, we observe that as the hearing in
this matter was held in August of 2014, the Child Custody Act (“Act”), 23
Pa.C.S.A. §§ 5321 to 5340, is applicable. 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 the effective date of the Act, i.e., January 24, 2011,
the provisions of the Act apply).
In custody cases, our standard of review is well-settled:
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.
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Id. at 443 (citation omitted).
We have stated:
The 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.
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
observed:
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. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5338 of 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.A.
§ 5338. Section 5328(a) of the Act, 23 Pa.C.S.A. § 5328(a), sets forth the
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sixteen best interest factors that the trial court must consider. See E.D. v.
M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).
Section 5328 of the 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.
(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
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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. § 5328.1
Further, where a request for relocation of the child is involved, the trial
court must consider the following ten relocation factors set forth within
section 5337(h) of the Act:
(1) The nature, quality, extent of involvement and duration of
the child’s relationship with the party proposing to relocate and
with the nonrelocating party, siblings and other significant
persons in the child’s life.
1
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services).
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(2) The age, developmental stage, needs of the child and the
likely impact the relocation will have on the child’s physical,
educational and emotional development, taking into
consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the
nonrelocating party and the child through suitable custody
arrangements, considering the logistics and financial
circumstances of the parties.
(4) The child’s preference, taking into consideration the age and
maturity of the child.
(5) Whether there is an established pattern of conduct of either
party to promote or thwart the relationship of the child and the
other party.
(6) Whether the relocation will enhance the general quality of life
for the party seeking the relocation, including, but not limited to,
financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life
for the child, including, but not limited to, financial or emotional
benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or
opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party’s household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S.A. § 5337(h); see also E.D. 33 A.3d at 81-82 (“Section 5337(h)
mandates that the trial court shall consider all of the factors listed therein,
giving weighted consideration to those factors affecting the safety of the
child.”). Id. at 81. Moreover, “[w]hen a custody dispute involves a request
by a party to relocate, we have explained ‘there is no black letter formula
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that easily resolves relocation disputes; rather, custody disputes are delicate
issues that must be handled on a case-by-case basis.’” C.M.K. v. K.E.M.,
45 A.3d 417, 421 (Pa. Super. 2012), quoting Baldwin v. Baldwin, 710
A.2d 610, 614 (Pa. Super. 1998).
Section 5323 provides for the following types of awards:
(a) Types 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:
(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.
23 Pa.C.S.A. § 5323.
In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained:
“All of the factors listed in section 5328(a) are required to
be considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). Section 5337(h) requires courts to consider all
relocation factors. E.D., supra at 81. The record must be clear
on appeal that the trial court considered all the factors. Id.Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record or in open court or in a
written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
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mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 620 Pa. 727, 70 A.3d 808 (2013). Section
5323(d) applies to cases involving custody and relocation.
A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).
In expressing the reasons for its decision, “there is no
required amount of detail for the trial court’s explanation; all
that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
denied, 620 Pa. 710, 68 A.3d 909 (2013). A court’s explanation
of reasons for its decision, which adequately addresses the
relevant factors, complies with Section 5323(d). Id.A.V., 87 A.3d at 822-23.
Upon careful review of the entire certified record, including the notes
of testimony and applicable law, we conclude that the thorough opinion filed
by the Honorable Elizabeth A. Doyle filed on August 22, 2014, as well as
Judge Doyle’s opinion pursuant to Pa.R.A.P. 1925(a) filed on September 26,
2014, address the issues raised by Mother and support the trial court’s
custodial determinations. Accordingly, we adopt and incorporate the August
22, 2014 and September 26, 2014 opinions of the trial court as our own.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
A._"B· _
PLAINTIFF,
v. 2011 GN 3875
j(. k·
DffENDANT.
ELIZABETH A. DOYLE PRESIDING,JUDGE
STEVEN PASSARELLO, ESQ. COUNSEL FOR PLAINTIFF
SUSAN REA, ESQ. COUNSEL FOR DEFENDANT
OPINION
AND NOW, this 21" day of August, 2014, this matter came before
the Court on August 15, 2014 for Custody Evidentiary hearing . The
matter is ripe ror decision.
i
Mother and Father are the parents of K.B, D.O.B. 1/14/200B.
I
Mother currently lives with her great-grandparents in Cambria County,
Pennsylvania and is petitioning for relocation to Altoona PA. Father lives II
,
in Texas and Is petitioning for relocation there. Neither party is married I
but both are engaged. Mother works at Applebee's and is going to !
,
I
nursing school. Her fianCE! works at Applebee's and has a degree in
biology from Penn State. He is looking for ajob as an inspector of mines .
Ii
He has a house in Altoona where Mother wants to move to live together
with him, their daughter together, and K.B . Father and his fiancee are
teachers. Father teaches 5' ~ grade in Texas, where he moved to gel a
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teaching job. He lives with his fiancee and her two sons, ages 8 and 6.
His Father lives in Texas as well. Mother's large extended family and the
reS! of father's extended family lives in the Altoona, PA (Blair County)
area. The child is close emotionally to both Mother and Father's extended
families. The child is 6 years old and will enter first grade this fall. The
testimony revealed that neither Mother's fiance or Father's fiancee have
any criminal record or any other thing about them that would be any
danger to the child. They both testified credibly that they had a close
relationship to the child and would promote her welfare. The parties
communicate sufficIently well for the Court to e-nter a shared custody
order. Neither party alleges current drug or alcohol abuse by the other or
a member of {heir household . There was testimony that Mother's
paramour had a DUI in 2006 ; however, the testimony also was that he no
longer drinks. There was no current allegation of physical abuse by any
party and no relevant evidence of past abuse. The testimony revealed that
neither parent is attempting to turn the child against the other parent.
Mother testified that Father swore at her on the telephone at one point
but objectively the level of conflict between the parties is not extremely
high . Both parenr5 have performed parental caretaking duties for the
child, and both are capable of doing 50. Mother testified credibly that
she has been the child's primary caretaker. Both parties allow the child to
contact (cali) the other when the child is with them, although Mother
I
alleges that Father monitors the child's calls and that sometimes the child
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is not available when she calls. Father restricted the child to one call per
day from Mother's family after multiple members of her large extended
family called the child each day. This restriction was not inappropriate in
light of the testimony about Mother's family in terms of how many calfs
would have been placed absent any restriction . The child was
interviewed, but at age 6, her testimony cannot be taken as mature or
well reasoned. She said she wanted to live with her Mother although she
loved her Father and wanted to visit him in Texas. Her testimony
bordered on the edge of being incompetent because of immaturity. There
was (estimany of Father's fiancee's son having a mild emotional
condition that would not affect K.B. Otherwise, the mental and physical
health of the parties and their household members is good and is not a
factor in this case .
APPLICABLE LAW;
As always, our paramount concern In a case whether it involves
cusmdy or visitation is the best interest and permanent welfare of the
children. Commonwealth ex rei Pierce v. Pierce. 493 Pa. 292,426 A. 2d
555 (1981). Determination of the best Interest of the child Is based on
consideration of all factors which legitimately have an effect upon a
child's physical, intellectual, moral and spiritual well being. E.A.L, and
I.L.L. v. L.I,W., 662 A,2d 1109 (Pa Super. 1955). In custody decisions, the
trial court must consider the importance of continuality in a child's life
and desirability of development of stable relationship with established
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parental figures and known physical environment. Wiseman \I. Wall, 718
A.2d 844 (Pa. Super. 1998)
The principles enunciate·d above are time honored in Pennsylvania
law. More recently, however, because of the Pennsylvania's adoption of
the new Child Custody Act at 23 Pa. C.S.A.§S328 (a), that act directs that
when a party files a petition for custody, the trial court must perform a
best interest of the child analysis considering all of the §S328 (a) factors .
Those factors are as follows :
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 pany or
member of the party's household, whether there is a
continued risk of harm to the child or an abused party I
and which party can better provide adeguate physical
safeguards and supervision of the child.
I
3) The parental duties performed by each party on behalf I
of the child .
4) The need for stability and