L.S.. v. R.A.L. ( 2014 )

J-A18027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
R.A.L.
Appellee No. 203 MDA 2014
Appeal from the Order Entered December 11, 2013
In the Court of Common Pleas of Luzerne County
Civil Division at No.: 13285 of 2010
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 26, 2014
L.S December 11, 2013 order that awarded
(born in
August 2009), awarded primary physical custody of Child to Father, and
awarded partial physical custody of Child to Mother. The trial court also
elocation with Child to New Hampshire. We
affirm.
Mother and Father were married in June 2008, and divorced in June
2012. In addition to Child, each parent has two children from prior
relationships. Mother and Father both live in Kingston, Luzerne County.
Father works as a rabbi in the area. Mother is unemployed.
After separation, Father filed a petition for an expedited custody
hearing, alleging that Mother had not allowed contact between Father and
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Child. Pending a custody conference, on October 29, 2010, the trial court
ordered that Father was allowed custody of Child in the marital residence on
Monday, Wednesday, and Friday mornings. Father alleged, and Mother later
admitted, that Mot
marital residence by placing video cameras in the home. Notes of Testimony
-64.
On March 25, 2011, the trial court entered a custody order that
awarded shared legal custody of Child, granted Mother primary physical
custody, and provided Father partial physical custody every other weekend
and every Wednesday morning.
Child, Mother filed a petition for a hearing in which she alleged that Child
returned to Mother with a bruise on her neck and a rash on her buttocks.
Mother further alleged that
On June 7, 2011, Mother filed a petition and notice for relocation,
seeking to relocate with Child to Sunapee, New Hampshire. On June 30,
2011, Father filed a counter-affidavit objecting to the proposed relocation.
On June 7, 2011, Mother also filed a petition for enforcement, in which
she sought a contempt finding against Father for failing to allow her phone
contact with Child, for failing to communicate with Mother about issues
involving Child, and for failing to provide Mother with information when
allegations and asserted that Mother was interfering with his custodial
periods.
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On July 19, 2011, the trial court selected Robert Tanenbaum, Ph.D., to
perform a psychological evaluation on each parent and a comprehensive
custody evaluation. Dr. Tanenbaum began the evaluations on August 11,
2011, and completed the evaluations on June 17, 2012. Dr. Tanenbaum
issued a report on June 19, 2012.
On October 4, 2011, Mother filed another petition for enforcement,
raising substantially the same issues as the first petition. On the same day,
Mother filed a petition to modify the custody order, asserting that Father was
unable to care for Child during his period of custody and had to use child
care. Mother sought custody of Child during times when Father would be
unable to care for Child. Mother also sought a restriction on the number of
trips Father could make with Child to New Jersey, where his parents resided,
and Vermont, where his other children resided. Mother also requested a
provision requiring Father to introduce any significant other to Mother before
introducing that other person to Child. Mother further alleged that Father
was not feeding Child a kosher diet. Mother requested that Father inform
Mother what Child was eating because Child allegedly was experiencing
stomach problems and rashes.
On October 27, 2011, Father filed a petition for contempt, alleging that
Mother refused to allow Father his custodial time on three days because
Child assertedly was sick. Father averred that Mother took Child to religious
services and daycare on those days, demonstrating that Child was not too
sick for Father to exercise custody. Father also filed a petition to modify the
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custody order, seeking to enlarge his custodial periods. Father filed an
additional petition for contempt, alleging that Mother had refused Father
three more custodial periods with only one make-up weekend scheduled.
In response to various petitions, the trial court held another custody
hearing in December 2011 and filed another custody order on April 12,
2012
through Monday and every Wednesday overnight. The court also denied
On February 9, 2012, Mother filed a petition for contempt in which she
alleged that
rashes, stomach issues, and hygiene. Mother also claimed that Father did
alleged refusal to cross a street with Child within the
designated crosswalk. Mother asserted that Child chipped a tooth while in
not allowing Mother
to have telephone contact with Child. On March 1, 2012, Father filed
another contempt petition, alleging that Mother refused to allow Father to
exercise custody of Child. On March 5, 2012, the court entered an order
granting Father make-up periods of custody and dismissed the petitions for
contempt without prejudice.
On March 23, 2012, Mother filed again for modification of the custody
order. Mother alleged that Father was not available to supervise Child
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during his custody periods
was not communicating with Mother. On April 13, 2012, Father filed a
petition for contempt alleging that Mother refused to allow Father custody of
Child during Passover and that Mother was not cooperating with the custody
evaluation. On April 25, 2012, Father filed another petition for contempt
alleging that Mother shouted derogatory statements about Father in the
presence of Child and others and that Mother did not permit Father custody
of Child. On May 10, 2012, the trial court found Mother in contempt for
making derogatory remarks in front of Child and for not permitting Father
custody. The court did not find Mother in contempt for the issues raised in
On June 29, 2012, Father filed a petition for primary physical custody
of Child, seeking to modify the April 12, 2012 order. On that same day,
Father also filed a petition for contempt, alleging that Mother would not
schedule one of his make-up periods of custody. On July 30, 2012, Mother
filed a petition for contempt alleging that Father did not allow Mother to
have telephone contact with Child, that Father was not communicating
information, including medical concerns, about Child to Mother, that Father
had enrolled Child in pre-
-school.
The trial court held hearings on the petitions on September 19, 2012,
October 3, 2012, October 25, 2012, and December 4, 2012. At the
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hearings, the trial court heard testimony from Father, Mother, Dr.
Tanenbaum, Luzerne County Children and Youth intake supervisor John
el Harris, Jewish Community Center
Executive Director Richard Evans, and United Hebrew Institute secretary
Mary Lee Conway.
On February 11, 2013, Mother filed another petition for contempt
alleging that Father was not permitting telephone contact with Child and that
Father was ignoring email communication from Mother. On April 22, 2013,
Mother filed an emergency petition for contempt, alleging that an unknown
male was living with Father and that Father refused to provide information to
Mother about that person. On April 24, 2013, Mother withdrew both her
February 11 and April 22 petitions.
On September 25, 2013, Father filed a petition for contempt alleging
pre-school that Father could not pick Child up from school despite a court
order allowing such, that Mother told Child that Father was not to spend
time with Child and told Child that Father was not caring for Child properly,
and that Mother sends Father harassing emails. On September 26, 2013,
Mother filed a petition for contempt alleging that Father permitted Child to
sleep outside when it was too cold to do so, that Father did not provide
proper hygienic care for Child, and that Father refused to communicate with
Mother. On October 16, 2013, the trial court found Mother in contempt for
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for contempt.
On October 21, 2013, Father filed a petition for contempt. He alleged
that Mother took Child to the emergency room, but refused to provide Father
with any information about the nature of the medical problem. Father
averred that Mother refused Father contact with Child during her stay at the
hospital and that Mother had hospital security ask Father to leave. On
November 19, 2013, Father filed a petition for emergency relief alleging that
the parties could not agree to custody for the Thanksgiving holiday. On
November 20, 2013, the court issued an order for Thanksgiving custody and
an order finding Mother in contempt.
On December 11, 2013, based upon the four-day custody hearing in
2012, the trial court issued an opinion and order modifying the custody
order, and awarding primary physical custody to Father and partial physical
custody to Mother every other Friday through Monday and every Wednesday
overnight
Mother filed a timely notice of appeal on January 10, 2014. Mother
also filed a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(i) and (b) on the same date. On February 4, 2014, the
trial court filed a statement pursuant to Pa.R.A.P. 1925(a) adopting its
December 11, 2013 opinion and order.
On appeal, Mother raises three questions for our review:
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1. Whether the Trial Court committed an error of law and/or
abused its discretion in reversing the custody schedule of the
parties considering the expert testimony of record and many
favorable findings as they relate to the then existing physical
custody arrangement with Mother?
2. Whether the Trial Court committed an error of law and/or
abused its discretion in failing to consider the parental duties
performed by Mother on behalf of the Child and/or failing to
ibling
3. Whether the Trial Court committed an error of law and/or
abused its discretion in determining that inter-parental
conflict was a reasonable basis to transfer primary physical
custody to Father?
Moth
Initially, we observe that, because the hearings were held in 2012, the
Child Custody Act ( et seq., is applicable to
the instant case. 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 January 24, 2011 effective date of the Act, the provisions of the Act
apply).
In custody cases, our standard of review is as follows:
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-
deductions or inferences from its factual findings. Ultimately,
the test is
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
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or are unreasonable in light of the sustainable findings of the
trial court.
Id. at 443 (citation omitted).
We have stated:
[T]he 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)).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.
Super. 2013). In determining best interests, the trial court must
consider the following sixteen factors:
§ 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
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.
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(3) The parental duties performed by each party on behalf
of the child.
education, family life and community life.
(5) The availability of extended family.
(7) The well-reasoned preference of the child, based on
(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
(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.
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 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
(15) The mental and physical condition of a party or
(16) Any other relevant factor.
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23 Pa.C.S. § 5328(a).1 See also E.D. v. M.P., 33 A.3d 73, 79-80 (Pa.
consideration of all of the section 5328(a) factors).2
In its December 11, 2013 opinion and order, the trial court addressed
all of the factors enumerated in 23 Pa.C.S.A. § 5328, and detailed the
manner in which it arrived at its decision. The trial court thoroughly
-parental conflict that
existed.
Mother first argues that the custody evaluator
support the change in custody. Mother contends that, because the custody
evaluator did not recommend a switch in primary custody, the court acted
unreasonably in ordering the change. -11. Mother also
argues that the court did not properly weigh certain of the custody factors,
-14. Finally, Mother
____________________________________________
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).
2
ision to deny her petition to
consideration of the relocation factors pursuant to 23 Pa.C.S.A. § 5337(h).
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argues that the court erred in premising its custody change upon the conflict
-16.
Mother first challenges the trial
Ta While the trial court is not required to accept the
conclusions of an expert witness in a child custody case, it must at least
recommendations, its decision must be based on competent evidence of
record. See King v. King, 889 A.2d 630, 632 (Pa. 2005); Nomland v.
Nomland, 813 A.2d 850, 854 (Pa. Super. 2002).
-cut as Mother has
alleged. In his report, Dr. Tanenbaum recognized that the level of conflict
between the parties was high. N.T., 9/19/2012, at 67. The conflict was so
great that Dr. Tanenbaum considered the option of reversing the custody
Id. at 67-68.
However, Dr. Ta
3
Id. at 68.
Instead, Dr. Tanenbaum recommended keeping the custody schedule the
same, but with the option of Father receiving more time if
allegations against Father continued. Id. However, at the time of the
hearing, Dr. Tanenbaum testified that, if allegations against Father
____________________________________________
3
Father filed his petition for primary custody shortly after the custody
evaluation was completed.
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Father to have primary custody. Id. at 150.
Dr. Tanenbaum testified that Child was at risk of being alienated from
the local children and youth agency with unsubstantiated reports of abuse.
Id. at 47-51. Dr. Tanenbaum stated that Father was more likely to
encourage and permit contact between Mother and Child. Id. at 145. In
recommendations as required, as the court reviewed all competent evidence
of record to arrive at its decision. We find no error or abuse of discretion.
Mother next challenges the weight the trial court assigned to various
factors. The trial court considered all
provide -siblings.
Trial Court Opinion and 2013, at 4-5. The trial court
heard testimony that Child has a good relationship with all of her half-
siblings. N.T., 9/19/2012, at 188-90; N.T., 10/25/2012, at 135. The court
also heard testimony that Mother is available to care for Child as a stay-at-
home parent while Father has work obligations in the evenings and on
weekends. N.T., 10/25/2012, at 141-46. However, the trial court focused
upon the fact
, and the fact that Father was more likely to
encourage contact between Child and Mother while Mother was more likely
hild. T.C.O. at 3, 5. Father testified about
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N.T., 9/19/2012, at 192-98, 200, 202; N.T., 10/3/2012, at 64, 138-39. The
trial court determined that it was required to change physical custody in
order to minimize the conflict and its repercussions for Child. Id. at 6-7.
The record amply supports these conclusions, and we defer to the trial court
on issues of weight of the evidence. See C.R.F., 45 A.3d at 443.
Finally, the
and unrelenting inter-parental confl Id. The trial court appropriately
considered this among the other factors in providing a custody arrangement
calculated
record, we find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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