Gross, E. v. Gross R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD GROSS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RUTH R. GROSS : No. 722 EDA 2021
Appeal from the Order Entered March 12, 2021,
in the Court of Common Pleas of Philadelphia County,
Domestic Relations at No(s): OC1900271.
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 27, 2021
Edward Gross (Father) appeals the order of the Philadelphia County
Court of Common Pleas granting Ruth R. Gross (Mother) primary physical
custody of their three-year-old son, E.G. (Child). Father argues, inter alia,
that the custody award is unreasonable in light of the trial court’s deficient
findings of fact, pursuant to the Child Custody Act. See 23 Pa.C.S.A. §
5328(a). After careful review, we agree and remand with instructions.
The relevant background may be abbreviated as follows: The parties
married in July 2016, the Child was born in 2018, and the parties separated
in January 2019. Thereafter, the parties filed respective custody complaints.
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* Former Justice specially assigned to the Superior Court.
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Custody litigation spanned approximately 18 months, resulting in two interim
orders, before the custody hearing began in August 2020.1
Those interim orders awarded primary physical custody to Mother, and
partial physical custody to Father. Each party originally requested sole
physical custody, but Father eventually changed his request to shared
custody. During the pendency of the litigation, Father began employment as
a high school teacher. Mother worked from the home as a private tutor.
Mother lives with the Maternal Grandparents in a two-bedroom apartment in
the Center City area of Philadelphia. Father lives approximately 30-45 minutes
away in Villanova, where he resides with his fiancée and her two daughters
(ages 5 and 7).
Litigation culminated with a final custody hearing, held remotely, over
the course of several dates: August 27, 2020; October 29, 2020; February 9-
10, 2021; and February 17, 2021. On March 12, 2021, the trial court issued
its custody award and delineated its Section 5328(a) findings. By and large,
the court determined that the custody factors favored neither parent.
Nevertheless, the court awarded Mother primary physical during the months
Father’s school was in session; Father’s partial physical custody was limited
to the 2nd, 3rd, and 4th weekend of each month (Friday afternoon to Monday
morning). Father also received the 5th weekend of the month, when
applicable, as well as those federal holidays where his school was not in
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1 The Covid-19 pandemic contributed to the protracted litigation.
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session. During the summer months, however, the court ordered physical
custody to be shared, on a week-off-week-on basis.
Father timely-filed this appeal. He presents the following issues for our
review:
1. Whether the trial court erred/abused its discretion in
granting Mother primary physical custody and Father
limited partial physical custody of the Child during the
non-summer months, rather than granting the parties
the same shared equal physical custody schedule of
alternating weeks for the non-summer months that it
provided for the summer months, or some variation
thereof?
2. Whether the trial court erred/abused its discretion
when it provided for a partial physical custody
schedule for Father during the non-summer months
which created a 10-11 day period of time each month
during which the Child will not be in Father’s physical
care?
3. Whether the trial court erred/abused its discretion in
further reducing Father’s already limited partial
physical custody time with the Child during the non-
summer months by taking away Father’s Sunday
overnight once the child enters kindergarten?
Father’s Brief at 13 (capitalization adjusted)
We begin our analysis by observing our well-settled scope and standard
of review for custody matters:
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
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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.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
The crux of Father’s first appellate issue is whether the record supports
the trial court’s physical custody scheme during the school year, given the
trial court’s failure to explain its reasoning. The Child Custody Act provides:
“In ordering any form of custody, the court shall determine the best interests
of the child by considering all relevant factors, giving weighted consideration
to those factors which affect the safety of the child[.]” 23 Pa.C.S.A. §
5328(a)(1)-(16). Apart from those factors affecting safety, the trial court is
generally free to weight the factors as it sees fit. “The parties cannot dictate
the amount of weight the trial court places on evidence.” A.V. v. S.T., 87
A.3d 818, 820 (Pa. Super. 2014) (citation omitted).
After conducting an analysis of the sixteen custody factors, the trial
court “shall delineate its reasons for its decision on the record in open court
or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). We have elaborated:
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, 68 A.3d 909 (Pa. 2013). A
court’s explanation of reasons for its decision, which
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adequately addresses the relevant factors, complies with
Section 5323(d). Id.D.Q. v. K.K., 241 A.3d 1112, 1118 (Pa. Super. 2020) (quoting A.V. v. S.T.,
87 A.3d 818, 822-23 (Pa. Super. 2014)). “Appellate interference is
unwarranted if the trial court’s consideration of the best interest of the child
was careful and thorough, and we are unable to find any abuse of discretion.”
A.V., 87 A.3d at 820.
Mother opposes Father’s appeal by relying on the above principles. She
characterizes Father’s arguments as an effort to dictate the amount of weight
that the court should have attached to the evidence in order to analyze the
Section 5328(a) factors. See Mother’s Brief at 13; see also A.V., supra.Mother concludes we must deny Father’s appeal, because the trial court has
broad discretion to fashion custody orders. See id at 13-14 (citing M.J.M.,
supra).Father maintains he is not attempting to re-weigh the evidence, so much
as he is trying to discern how the trial court arrived at its determination –
specifically, why the court found that a primary/partial arrangement was in
the Child’s best interests during the school year, but not during the summer.
See Father’s Brief at 24. Father suggests that the trial court penalized him
for his work schedule, but he concludes that the trial court erred by failing “to
set forth its reasoning as to how its consideration/analysis of the Section
5328(a) factors determined the custody order that it fashioned[.]” Id.According to Father, this error led to another. He reasons that without a
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proper explanation from the trial court, the record does not support the trial
court’s custody award. Id. at 21.
After review, we agree with Father’s argument that the trial court failed
to properly delineate its reasoning under Section 5323(d). Soon after the
current iteration of the Child Custody Act was enacted in 2011, this Court was
tasked with interpreting Section 5323(d) (“Reasons for award”). We held that
the trial court must delineate its reasons for its custody award prior to the
deadline by which a litigant must file notice of the appeal. See C.B. v. J.B.,
65 A.3d 946, 954 (Pa. Super. 2013). We reasoned that if the litigant was
forced to take an appeal without the benefit of the trial court’s rationale, then
the litigant would be in an untenable position of having “to guess as to which
information the trial court found pertinent, and how the evidence informed the
court’s analysis of the Act’s sixteen custody factors.” C.B. 65 A.3d at 955.
“[I]f the party guesses wrong, and omits discussion of an issue or fact that
the trial court later states that it found to be pertinent, that issue may be
waived.” Id. Alternatively, the party could list “all possible issues that might
arise from the trial court’s ultimate explanation of the bases for its ruling,” but
then the appeal “could subject the party to waiver for over-inclusiveness or
vagueness.” Id.Although C.B. concerned the timing of the trial court’s delineation of its
findings – not the level of detail – we conclude a similar problem has occurred
here, resulting in the same prejudice towards Father. Given the trial court’s
vague explanation for its custody scheme, Father was left to guess why the
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court decided that a primary/partial custody award would be in Child’s best
interests during the non-summer months.
Indeed, Father did guess. He presumed that the trial court granted
primary physical custody to Mother, because he works outside the home while
Mother does not. See Father’s Brief at 21. Father concludes that such a basis
would be grounds for a reversal under Johnson v. Lewis, 870 A.2d 368, 374
(Pa. Super. 2005) (holding that a parent’s “work schedule may not deprive
that parent of custody if suitable arrangements are made for the child’s care
in his absence.”).2 However, the trial court suggested in its Pa.R.A.P. 1925(a)
opinion that Father’s work schedule was not the reason for its award:
“Contrary to Father’s contention, the court did not penalize him for ‘having to
work,’ but rather took into account Father’s work schedule as a public school
teacher in awarding him physical custody of [the Child] on all federal Monday
holidays every year.” See Trial Court Opinion (T.C.O.), 5/10/21, at 6.
If his work schedule was not the motivating reason why custody should
be primary/partial during the non-summer months, Father could not otherwise
ascertain the basis for the court’s custody award from its Findings of Fact.
Neither could we. As mentioned above, the law does not require a certain
amount of detail for a court’s explanation to be sufficient, only that the court’s
decision is based on the enumerated custody factors. See D.Q., supra.
Appellate interference is unwarranted so long as the trial court’s
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2 Although this case predates the current iteration of the Child Custody Act,
it retains persuasive value.
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considerations were careful and thorough. See A.V., 87 A.3d at 820.
However, we will find error “where the trial court listed the Section 5328(a)
factors but failed to apply them.” See C.A.J. v. D.S.M., 136 A.3d 504, 510
(Pa. Super. 2016) (citations omitted).
In our view, however, the trial court failed to provide sufficient
explanation why a primary/partial award during the non-summer months was
in the Child’s best interests. The court’s complete Section 5328(a) analysis is
as follows:
The court determined the best interests of Child upon
consideration of all relevant factors, as mandated
pursuant to 23 Pa.C.S.A. § 5328(a), as follows:
Factor (1) Which party is more likely to encourage
and permit frequent and continuing contact between
the child and another party.
Father is more likely to encourage and permit frequent and
continuing contact between Child and Mother.
As an example of Father being likely to encourage and
permit frequent and continuing contact between Child and
Mother, Father’s proposed custody arrangement is for
shared equal physical custody, with Mother having Child
every Wednesday…through Friday…and every other
weekend[.] Father proposed that Mother have Facetime
video chat with Child every day that Father has custody.
In contrast, Mother’s proposed custody arrangement is for
Father having partial physical custody every Saturday, 9:30
a.m. to 4:00 p.m., with one hour being supervised by a
social worker for at least six months. In addition, Mother
proposed that Father have only one Facetime video chat
with Child per week.
Factor (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
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abused party and which party can better provide
adequate physical safeguards and supervision of the
child.
Mother testified to instances of Father’s behavior which she
characterized as abuse. Mother testified to Father having
thrown water in her face and having pushed her on a bed
while Child was in her arms prior to the parties’ separation.
Father testified that Child was not in Mother’s arms and that
she inadvertently landed on the bed when they each
reached for Child at the same time.
Post separation, Mother and her parents testified that Father
routinely addresses Mother and Maternal Grandmother in a
curt, bullying, menacing manner during custody exchanges.
Mother testified that Father verbally disparages her during
the Facetime calls with Child. Mother testified that Father
sends abusive test messages and that he engages in
gaslighting.
The evidence is insufficient to establish that Mother is an
abused party.
There is no credible evidence that Father has abused Child
or that any of Father’s above-described actions pose a
continued risk of harm to Child. Each party is equally able
to provide adequate physical safeguards and supervision of
the Child.
Factor (2.1) The information set forth in section
5329.1(a) (relating to consideration of child abuse
and involvement with protective services).
[Not applicable]
Factor (3) The parental duties performed by each
party on behalf of the child.
Each party performs parental duties when Child is in the
custody of that party
Factor (4) The need for stability and continuity in the
child's education, family life and community life.
As a three-year-old, Child is entirely dependent upon his
parents to provide stability and continuity in his family life.
His education and community life necessarily revolve around
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his family. It is in Child’s best interest for the parties to
nurture his family life by continuing to make possible his
close relationship with all of his grandparents. Mother
testified that she wants Child to have a relationship with
parental grandmother.
Factor (5) The availability of extended family.
Mother and Child currently reside with Mother’s parents in
their two bedroom City Center Philadelphia home. Father’s
parents live in Bala Cynwyd, Pennsylvania, within close
proximity to both Mother and Father. The extended family
includes Mother’s sister, Father’s three sisters, and Child’s
cousins.
Both Maternal Grandmother and Paternal Grandmother
provided care for Child while the parties resided together.
For a period of time post-separation, Paternal Grandmother
continued to provide care until Mother terminated her
employment as a teacher and the arrangement with
Paternal Grandmother changed. Maternal Grandparents live
with Child and are available to him on a daily basis. Paternal
Grandparents remain available to develop their familial
relationship with Child. In the past, Paternal Grandparents
have been available for financial support for the parties[….]
Factor (6) The child's sibling relationships.
Child has no siblings. Father resides with his fiancée who is
the mother of two minor girls. Child has a good relationship
with each of them.
Factor (7) The well-reasoned preference of the child,
based on the child's maturity and judgment.
[Not applicable since Child is three-years-old]
Factor (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.
No credible evidence was presented of either parent
attempting to turn Child against the other parent.
Factor (9) Which party is more likely to maintain a
loving, stable, consistent and nurturing relationship
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with the child adequate for the child's emotional
needs.
Each party is equally likely to maintain a loving, stable,
consistent and nurturing relationship with Child adequate
for his emotional needs. Mother testified she loves Child,
that she thinks Father loves Child, and that Child loves her
and Father.
Factor (10) Which party is more likely to attend to the
daily physical, emotional, developmental, educational
and special needs of the child.
Each party is equally likely to attend to the daily physical,
emotional, developmental, educational and special needs of
Child when he is in the custody of that party.
Factor (11) The proximity of the residences of the
parties.
Mother and Child currently reside with Mother’s parents in
their Center City Philadelphia home. Father lives in
Villanova. Their residences are approximately a 30 to 45
minute drive apart.
Factor (12) Each party's availability to care for the
child or ability to make appropriate child-care
arrangements.
Each party is available to care for child or has the ability to
make appropriate child-care arrangements. Mother is not
currently working outside the home she shares with her
parents. Father is employed as a high school teacher.
Factor (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.
There is currently a high level of conflict between the
parties. Neither party displays much willingness to
cooperate with the other. Their willingness to cooperate is
hampered by mutual distrust and animosity. Mother has
employed social media on the internet to label Father as an
abuser. In her testimony, Mother stated that she hates
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Father, and she characterized him as a pathological liar and
a bad influence on Child.
At times, Mother has not made Child available for telephone
calls per the current court order. At times, Father is verbally
hostile towards Mother at custody exchanges. On the
occasion of Yom Kippur 2020, Mother delayed Father’s
custodial time by more than one hour because Child was
taking his afternoon nap. Father called [the] police in
response. These instances of failure to cooperate serve to
perpetuate the cycle in which the parties display mutual
disregard for each other.
The court expects that the conflict between the parties will
diminish with the institution of this final order. As they and
Child become accustomed to the schedule established
herein and as they engage in co-parenting counseling, the
framework for enhanced cooperation is established and the
opportunity for development of a productive co-parenting
relationship is facilitated. Each party’s adherence to the
terms of the order may serve to lessen the mistrust and
tension that currently exists between them.
Factor (14) The history of drug or alcohol abuse of a
party or member of a party's household.
There is no evidence of drug abuse by either party or
member of a party’s household. Mother has a history of
alcohol abuse and received in-patient treatment[…]. Mother
testified that she has not consumed any alcohol since[…].
Mother currently takes [prescription drugs for her mental
health]. Father currently is prescribed [drugs for his mental
health].
Factor (15) The mental and physical condition of a
party or member of a party's household.
Each party is currently in treatment with a mental health
professional […]. [Father’s psychiatrist] testified that Father
has made significant improvement…[and] that Father does
not have symptoms that would warrant limiting his contact
with Child.
Mother testified that she is a recovering alcoholic and that
[she meets with a social worker] every two weeks. …
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Mother’s level of functioning indicates to [the social worker]
that Mother is stable and sober.
Maternal Grandmother has been in long-term therapy for
treatment for anxiety.
Factor (16) Any other relevant factor.
The existence of the pandemic, coronavirus causing Covid-
19, has required the parties to take extraordinary measures
to protect the health of Child. The court determines that
each of the parties is capable of following all safety
guidelines mandated by federal, state, and local authorities
and that each understands the dangers posed by failure to
maintain social distancing, wearing masks, and quarantining
when necessary.
Evidence established that during the early fall of 2020,
Father did not follow all safety precautions while having
custody of Child.
Evidence established that in December 2020, Father
exercised custodial time with Child on the day after Father
was tested for Covid-19. Father testified positive, and both
Child and Mother subsequently tested positive. The court
cannot determine a causative relationship between Father’s
having Covid-19 and Child and Mother subsequently testing
positive. The court does determine that Father exercised
poor judgment in exercising custodial time when he had
reason to believe that there was a possibility that he had
Covid-19.
See Findings of Fact, dated 3/12/21, at 5-9 (formatting adjusted).
Importantly, the court did not find that any factor explicitly favored
Mother, nor did the court explain why, based on the above criteria, the
primary/partial arrangement was in the Child’s best interests during the non-
summer months. On the surface, it seems the evidentiary scale actually
tipped in favor of Father. As Father readily points out, the trial court
determined Section 5328(a)(1) favors him. Everything else appeared neutral.
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While the court cited facts adverse to Father’s position, the court also
determined such facts were not so unfavorable to find that a given custody
factor favored Mother (see, e.g., Factor 2 and Factor 16).
Of course, the Section 5328(a) analysis is not a scorecard. A party does
not prevail simply because the trial court determines a majority of factors
favors them. We suppose any single factor could theoretically be dispositive
given the circumstances, so long as the record supports such a determination.
See M.J.M. v. M.L.G., 63 A.3d at 339. (“It is within the trial court’s purview
as the finder of fact to determine which factors are the most salient and critical
in each particular case.”) (citation omitted). The weight that a trial court
attaches to the factors is critical.3 Often, a trial court’s weighting of the factors
is self-evident in its delineation of reasons. Here, it was not. And without
sufficient explanation concerning the weight of the evidence, we cannot
conclude the court’s custody award is supported by the record.
In light of our disposition, we need not address Father’s remaining
issues. We presume the trial court, having presided over five days of hearings,
is confident that its award is still in the Child’s best interests. If so, the trial
court shall issue supplemental findings to justify its original custody scheme.
Alternatively, the court may reconsider its award and fashion a new order. In
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3 Father argues that a trial court may only give weighted consideration to
those custody factors that impact the child’s safety. See Father’s Brief at 24.
This is a misconstruction of the Child Custody Act. While Section 5328(a)
obligates a court to give “weighted consideration” to these factors, we have
never held that a court may only give such weight to the safety factors.
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either event, no new hearing is necessary. Either party may appeal thereafter.
In the meantime, however, we must vacate the order. As it stands now, the
court’s findings do not support its current custody award.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judge Nichols concurs in the result.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2021
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