A v. v. A.M. ( 2016 )

J-S50033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.V. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.M.
Appellant No. 217 MDA 2016
Appeal from the Order Entered January 4, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2014 CV 3436 CU
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 20, 2016
Appellant, A.M. (Father), appeals from the December 3, 2015 custody
order, as amended by the January 4, 2016 order granting his motion for
reconsideration, and modifying the trial court’s December 3, 2015 custody
order. In its December 3, 2015 order, the trial court awarded primary
physical custody of Father’s minor son, L.V., to his mother, A.V. (Mother).
In addition, the order awarded Father partial physical custody of L.V., and
awarded both parents shared legal custody. After careful review, we affirm.
The trial court summarized the factual and procedural history of this
matter as follows.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S50033-16
The parties are the parents of a son, L.V., born
in July 2007. Father had limited pre-natal
involvement with Mother but following [L.V.’s] birth
denied paternity. Paternity was established by
testing a few months later and Father [was] ordered
to pay child support. Father met [L.V.] for the first
time in February 2012 when he was four years and
seven months old. Prior thereto, [L.V.] was raised
by Mother, who lived with her parents. In March
2012, Mother and Father rekindled their relationship
during which time Mother suspended child support
and cancelled Father’s arrears. Their renewed
relationship ended in September 2012 at which time
Father and paternal grandmother continued visiting
[L.V.] by mutual agreement. From sometime in the
spring of 2013 through September 2013, Father
agreed to take custody of [L.V.] every weekend
while Mother worked. They later mutually agreed to
reduce Father’s custody to every other weekend
(Thursday evening through Sunday) plus a Thursday
overnight on Father’s off weekend.
On April 15, 2014, Mother filed a pro se
custody complaint and emergency petition seeking
primary physical custody and also seeking a
temporary order limiting Father’s custody. The
parties previously agreed that Father could take
[L.V.] to Disney World in April. A few days prior to
the trip, Mother became concerned Father would not
return [L.V.] because he had allegedly threatened to
retain custody and had not provided Mother with a
trip itinerary. Mother also noted Father made
numerous accusations to Dauphin County Children &
Youth Services (CYS) about the living conditions in
her home which she claimed were proven
unfounded. Her emergency request for temporary
custody was denied by the Hon[orable] Bruce
Bratton; however, the parties, with the help of
counsel, were able to agree to a temporary custody
schedule [on] April 15, 2014, under which terms
[L.V.] would travel with Father to Disney World as
planned. They also agreed to maintain the custody
status quo.
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The parties later attended a custody
conciliation conference and entered an agreed order
[on] May 27, 2015 under which terms they shared
legal custody, Mother retained primary physical
custody and Father had partial custody every other
weekend from Thursday after school through Sunday
evening and every other Thursday evening through
Friday morning preceding Mother’s custody
weekends.
On December 12, 2014, Father filed a petition
to seeking [sic] primary physical custody. The
matter was assigned to the Hon[orable] Bernard
Coates who held three days of hearings between May
and July 2015. A final hearing was scheduled for
October 2015, but Judge Coates passed away before
the hearing could be held. The matter was re-
assigned to [the Honorable Jeannine Turgeon] and
[Judge Turgeon] held the final hearing [on]
December 3, 2015[.]
Trial Court Opinion, 3/16/16, at 1-2 (footnote omitted).
Following the hearing, the trial court entered its December 3, 2015
order awarding primary physical custody of L.V. to Mother, awarding partial
physical custody of L.V. to Father, and awarding both parents shared legal
custody. During the school year, Father was awarded partial physical
custody on Wednesday evenings and every other weekend from Friday after
school until Monday before school. During the summer, Father was awarded
three two-week periods of partial physical custody. On December 31, 2015,
Father timely filed a notice of appeal along with a concise statement of
errors complained of on appeal.
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On January 4, 2016, the trial court entered an order granting
reconsideration of the December 3, 2015 order.1 In doing so, the trial court
modified paragraph 6.f. of the order, relating to the parents’ right of first
refusal. The trial court did not modify any other provisions of the December
3, 2015 order. Father timely filed a notice of appeal from the January 4,
2016 order on February 3, 2016, along with an additional concise statement
of errors complained of on appeal.2
On appeal, Father raises the following issues for our review.3
____________________________________________
1
The record does not contain a motion for reconsideration, nor is a motion
for reconsideration listed on the docket. In the January 4, 2016 order, the
trial court stated that it received the motion via e-mail on December 29,
2015. The trial court further explained that it had jurisdiction to act on
Father’s motion, because the thirty day appeal period from the December 3,
2015 order ended on January 2, 2016, which was a Saturday, and because
Monday, January 4, 2016, was the first business day following the expiration
of the thirty-day appeal period.
2
Father filed a praecipe to strike his previous appeal on January 22, 2016,
pursuant to Rule 1701 of our Rules of Appellate Procedure. Rule 1701
provides as follows, in relevant part.
A timely order granting reconsideration under this paragraph
shall render inoperative any such notice of appeal or petition for
review of a quasijudicial order theretofore or thereafter filed or
docketed with respect to the prior order. The petitioning party
shall and any party may file a praecipe with the prothonotary of
any court in which such an inoperative notice or petition is filed
or docketed and the prothonotary shall note on the docket that
such notice or petition has been stricken under this rule.
Pa.R.A.P. 1701(b)(3).
3
We have adjusted the formatting of Father’s issues for clarity.
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I. Did the trial court commit an abuse of discretion
when it ignored material, relevant, and competent
evidence proving Father’s school district to be vastly
superior to Mother’s in terms of quality of education
and safety?
II. Did the trial court commit an error of law when it
took judicial notice sua sponte of its own opinion
formed from some unknown, extrajudicial source?
III. Did the trial court commit an error of law when it
made a finding of fact not supported by competent
evidence based upon hearsay spoken by Mother
during an investigation of her home and recorded in
a CYS report which was not introduced into evidence,
unseen by both counsel prior to the day of trial, and
not subject to cross examination?
IV. Did the trial court commit a gross abuse of
discretion by making a determination unreasonable
in view of its factual findings with regard to its “best
home” factor when it decided the factor in favor of
Mother despite admonishing her regarding the
unsafe condition of her home?
V. Did the trial court commit an error of law when it
failed to interrogate [L.V.] based solely upon Father’s
counsel’s refusal to waive the right to be present and
to have a transcript of the interrogation produced?
VI. Did the trial court commit an error of law when it
failed to address 23 Pa.C.S. § 5328(a)(8), attempt of
a parent to turn the [c]hild against the other parent,
despite considerable competent evidence weighing
against Mother?
VII. Did the trial court abuse its discretion when it
made conclusions contrary to competent evidence
relating to [L.V.]’s best interests pursuant to the
following custody factors that clearly favored
Father[?]
[1.] 23 Pa.C.S. § 5328(a)(1), which party is
more likely to encourage and permit frequent
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and continuing contact between the child and
another party;
[2.] 23 Pa.C.S. § 5328(a)(3), the parental
duties performed by each party on behalf of
the child;
[3.] 23 Pa.C.S. § 5328(a)(4), the need for
stability and continuity in the child’s education,
family life and community life;
[4.] 23 Pa.C.S. § 5328(a)(9), and [sic] which
party is more likely to maintain a loving,
stable, consistent and nurturing relationship
with the child adequate for the child’s
emotional needs; and
[5.] 23 Pa.C.S. § 5328(a)(10), which party is
more likely to attend to the daily physical,
emotional, including [sic] developmental,
educational and special needs of the child.
VIII. Did the trial court commit an error of law when
it disregarded competent evidence relevant to the
[c]hild’s best interests pursuant to 23 Pa.C.S.
§ 5328(a)(5), the availability of extended family,
including the preservation and nurturing of
meaningful relationships with his Stepmother and
Father’s extended family?
Father’s Brief at 5-7 (suggested answers omitted).
We consider these 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
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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.A. § 5328(a).
§ 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.
(2.1) The information set forth in section
5329.1(a) (relating to consideration of child
abuse and involvement with protective
services).
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(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.
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(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).
Instantly, the trial court announced its findings with respect to each of
the Section 5328(a) factors at the conclusion of the custody hearing on
December 3, 2015. N.T., 12/3/15, at 84-90. The trial court found that
Sections 5328(a)(2), (2.1), (3), (4), and (6) weighed in favor of Mother, and
that Section 5328(a)(14) weighed in favor of Father. Id. at 85-89. The
court found that Sections 5328(a)(1), (5), (7), (8), (9), (10), (11), (12), and
(13) did not weigh in favor of either parent. Id. at 84-88. With respect to
Section 5328(a)(16), the trial court found that Father appears to have a
wealthy family and a nice home, and that Mother’s home is in poor
condition. Id. at 89. The trial court noted that this caused Section
5328(a)(16) to weigh slightly in Father’s favor, “although we are not to base
custody issues on someone’s wealth or the beauty of their home.” Id. at
89-90. In concluding that primary physical custody of Child should remain
with Mother, the trial court observed that L.V. has spent his entire life
residing with Mother, that L.V. is doing well in his current school, and that
L.V. has a strong relationship with his half-sister, who also resides in
Mother’s home. Id. at 85-87.
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In his first issue, Father argues that the trial court abused its
discretion by ignoring evidence that his school district is vastly superior to
Mother’s school district in terms of academic quality and safety. Father’s
Brief at 15-19. In his interrelated second issue, Father argues that the trial
court improperly took judicial notice of facts regarding the school board in
Mother’s school district, and used those improperly noticed facts to ignore
evidence relating to the superiority of the school that [L.V.] would attend if
he lived primarily with Father. Id. at 19-22
On June 30, 2015, Father presented testimony concerning the relative
quality of the Central Dauphin School District, where he resides, as
compared to the Susquehanna Township School District, where Mother
resides. See, e.g., N.T., 6/30/15, at 10-19. Father testified that Paxtonia
Elementary, in the Central Dauphin School District, scored much higher on a
2013-2014 school performance profile than did Thomas Holtzman
Elementary, where L.V. currently attends. Id. at 11-13. Father further
testified that safe school reports for Thomas Holtzman and Paxtonia indicate
that Thomas Holtzman had 64 reported incidents of misconduct during the
2013-2014 school year, while Paxtonia had no reported incidents of
misconduct. Id. at 15.
On December 3, 2015, Father’s counsel conducted cross-examination
of Mother concerning Facebook posts in which she made negative
statements about Susquehanna Township. N.T., 12/3/15, at 28-30. As
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cross-examination continued, the trial court interjected and stated, “[w]ell, I
will take judicial notice that the school district in Susquehanna Township
because of some bomb throwers on the school board has had an
unbelievably horrible last five years,” to which Father’s counsel responded,
“Okay.” Id. at 30.
In its opinion, the trial court explained that it did not find Father’s
arguments concerning the quality of his school district to be persuasive. The
trial court reasoned as follows.
[L.V.’s] need for stability and continuity in his
educational life would best be served by remaining at
the school he was attending, in the school district he
had been in since Kindergarten. The evidence
indicated that [L.V.] has been doing extremely well
in the third grade at Holtzman Elementary and had
performed well on recent standardized testing. His
IEP appears to have made a positive impact and his
educational trajectory is in the right direction. Given
his trajectory, a comparison of school profile grades
was not relevant. As I noted during testimony, my
consideration was about “the school and the teacher,
not the school district.”
Trial Court Opinion, 3/16/16, at 16-17 (citations to the record omitted).
Further, with respect to Father’s claim that it improperly took judicial
notice of certain facts, the trial court points out that Father did not object to
its taking of judicial notice during the custody hearing, and that Father has
therefore waived this claim for our review. Id. at 17. In the alternative, the
trial court concludes that Father suffered no prejudice from this alleged
error, because “I essentially agreed with the point Father’s attorney was
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trying to make through testimony, which was that the school district on the
whole had been having great difficulties.” Id.
We conclude that the trial court did not abuse its discretion. While
Father presented a great deal of evidence concerning the alleged inferiority
of the Susquehanna Township School District, the trial court was free to
weigh this evidence as it saw fit. Critically, the record supports the trial
court’s conclusion that L.V. is thriving in the third grade at his current
elementary school. The record contains a copy of L.V.’s first quarter report
card, which was entered into evidence as Plaintiff’s Exhibit 17. See N.T.,
12/3/15, at 55. L.V.’s report card indicates that he scored a ninety-eight in
Reading for Comprehension, a 95 in Writing to Communicate, a 94 in Social
Studies, and a 94 in Science. See Plaintiff’s Exhibit 17. In addition, the
report card indicates that L.V. scored a “1,” meaning “Consistently
demonstrates,” in all four “S.O.A.R.” categories, which relate to L.V.’s
Safety, Ownership, Active Cooperation, and Respect. Id. It was reasonable
for the trial court to conclude that L.V. should not change school districts
when L.V. appears to be doing very well where he is.
Concerning Father’s claim that the trial court erred by taking judicial
notice of facts relating to the Susquehanna Township school board, we agree
with the trial court that Father has waived this claim by failing to make a
timely objection. It is well-settled that “[i]n order to preserve an issue for
appellate review, a party must make a timely and specific objection at the
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appropriate stage of the proceedings before the trial court. Failure to timely
object to a basic and fundamental error will result in waiver of that issue.”
See In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010), quoting
Thompson v. Thompson, 963 A.2d 474, 475–76 (Pa. Super. 2008).
Therefore, Father’s first and second issues merit no relief.
In his third issue, Father argues that the trial court erred by finding
that he had been in a physical altercation with one of his previous girlfriends.
Father’s Brief at 22-24. Father contends that it was improper for the trial
court to make this finding, because it was based solely on a hearsay
statement contained in a child protective services report. Id.In its opinion, the trial court explained that it was required pursuant
to Section 5328(a)(2.1) to consider the information set forth in Section
5329.1(a) of the Child Custody Act, relating to consideration of child abuse
and involvement with protective services. Trial Court Opinion, 3/16/16, at
17. In order to meet this requirement, the trial court requested a report
from Dauphin County Children and Youth Services (CYS) detailing any
involvement it may have had with L.V. Id. The report is contained in the
certified record on appeal, and contains a description of an interview
between Mother and a CYS caseworker on March 3, 2014. According to the
report, Mother stated that Father “once choked her and dragged her out of
the house. She also stated that she had been told by one of his ex[-
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]girlfriends … that he had hit her as well.” Consideration of Child Abuse and
Involvement with Protective Services, at 4 (unnumbered pages).
At the conclusion of the custody hearing, the trial court made the
following findings with respect to Sections 5328(a)(2) and (2.1).
It looks like dad was in a physical altercation with a
girlfriend but I am assuming that that was
situational, … I will assume that that will not happen
again and it’s history and, therefore, there is not, I
am not going to put a huge subtraction mark in
[F]ather’s column on that.
N.T., 12/3/15, at 85. The trial court further explained that Father’s alleged
altercation with his previous girlfriend was “an insignificant consideration in
my custody determination.” Trial Court Opinion, 3/16/16, at 18.
Initially, we note that Father has waived any challenge to the trial
court’s consideration of the CYS report, as he did not object or raise any
concern with respect to the report during the custody proceedings. See
S.C.B., supra at 767. Further, even if we were to conclude that the trial
court erred or abused its discretion by considering the report, the record still
would support the trial court’s finding that Father has a history of domestic
violence. Mother testified on July 30, 2015, that she and Father became
reacquainted in February 2012, and that they maintained a casual sexual
relationship from about March 2012 until October 2012. N.T., 7/30/15, at
114-117. In October 2012, Mother discovered that Father was also seeing
another woman, his current wife, A.M. (Stepmother). Id. at 116-117.
Mother informed Father that she was ending their relationship, and Father
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became upset. Id. at 117. Mother testified that Father “was physically
violent towards me” as a result of this incident. Id. at 116.
Father’s fourth issue is that the trial court abused its discretion when it
found that Mother’s home is “the best home” for Child. Father’s Brief at 24-
26. Father asserts that Mother’s home is dirty, overcrowded, and
dangerous, and that Father’s home is much more appropriate. Id.
At the conclusion of the custody hearing, the trial court acknowledged
that Mother’s home suffers from numerous problems. See N.T., 12/3/15, at
84, 89. For example, the trial court acknowledged that Mother’s home
features “dogs with fleas” and an empty pool in the backyard which is filled
with debris. Id. at 84. However, the trial court endeavored to address
these issues by including several provisions within its December 3, 2015
custody order. The trial court instructed, among other things, that Mother
must provide monthly flea treatments to all animals in her home, and that
the empty pool in Mother’s backyard must be “filled in or secured with a
lock” within thirty days. Order of Court – Parenting Plan, 12/3/15, at 10.
The trial court reiterated in its opinion that it fully considered the problems
with Mother’s home when making its custody decision, but that all of these
problems can be remedied, and that it would be improper to award primary
physical custody of L.V. to Father because he is wealthier or has a nicer
house. Trial Court Opinion, 3/16/16, at 18. Thus, while the record supports
Father’s argument that Mother’s home is in need of improvement, we
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discern no abuse of discretion by the trial court in maintaining primary
physical custody with Mother.
In his fifth issue, Father argues that the trial court abused its
discretion by failing to interrogate L.V. during the custody proceedings.
Father’s Brief at 27-32. Father asserts that the trial court declined to
interrogate L.V. based on the refusal of Father’s counsel to waive his right to
be present during the interrogation. Id. at 29-30. Father also contends
that the trial court improperly concluded that his counsel had “interviewed
and prepped” L.V. prior to the custody hearing, and that there is no evidence
in the record to suggest that L.V. was “prepped.” Id. at 30-32.
Father’s argument stems from a discussion between the trial court and
counsel during the final day of the custody hearing on December 3, 2015.
At that time, counsel for Father made an oral motion that he be permitted to
interrogate L.V. in the presence of the trial court, and that the trial court
also conduct its own interrogation of L.V. N.T., 12/3/15, at 5. The trial
court denied the motion, saying, “I decline to interview the child with
counsel present. I don’t put children through that and haven’t for 23 years.
So, no, thank you.” Id. at 5-6.
In its opinion, the trial court explains that it was not required to
conduct an interrogation of L.V. Trial Court Opinion, 3/16/16, at 18-19. The
trial court directs our attention to Rule 1915.11(b) of our Rules of Civil
Procedure, which provides as follows.
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(b) The court may interrogate a child, whether or
not the subject of the action, in open court or in
chambers. The interrogation shall be conducted in
the presence of the attorneys and, if permitted by
the court, the parties. The attorneys shall have the
right to interrogate the child under the supervision of
the court. The interrogation shall be part of the
record.
Pa.R.C.P. 1915.11(b) (emphasis added).4 The trial court also expressed
concern that conducting an interrogation of L.V. would be potentially
traumatic, because L.V. was “interviewed and prepped by Father’s attorney
prior to the custody hearing.” Trial Court Opinion, 3/16/16, at 19.
As observed by the trial court, Rule 1915.11(b) makes interrogation of
a child in a custody proceeding optional. The trial court was under no
obligation to interrogate L.V., and its failure to do so does not constitute
reversible error. In addition, we observe that the record supports the trial
court’s finding that L.V. had been interviewed and, to a certain extent,
“prepped,” prior to the custody proceedings. On May 5, 2015, Father’s
counsel provided a detailed offer of proof listing everything that L.V. would
say if interrogated by the trial court. See N.T., 5/5/15, at 4-6. Father later
acknowledged that he took L.V. to meet with his attorney. N.T., 7/30/15, at
64. Father admitted that he and L.V. discussed L.V.’s anticipated
interrogation, because L.V. was “nervous,” and Father wanted to calm him
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4
Pa.R.C.P. 1915.15(b) was amended, effective July 1, 2016, and now
provides that a court may “interview,” rather than “interrogate,” a child in a
custody proceeding.
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down. Id. at 63-64. Father stated that he has explained to L.V. that he is
seeking primary physical custody in order to “give [L.V.] a better education,
a better way of living, a better life[.]” Id. at 73. Similarly, Stepmother
testified that she discussed the custody proceedings with L.V., and that
“[w]e always stress to [L.V.] that he needs to be honest and that he needs
to tell the truth and whatever he wants he needs to express that. He was
worried that his mommy would get mad when he told her that he wants to
stay with us more.” N.T., 5/5/15, at 47-50. Given this testimony, we
discern no abuse of discretion.
Father argues in his sixth issue that the trial court erred by failing to
conclude that Mother has attempted to alienate L.V. from Father. Father’s
Brief at 32-35. Father emphasizes that Mother made L.V. read court
transcripts, and that Mother revealed to L.V. that Father had entered
pictures of his dirty underwear into evidence during court proceedings, which
upset L.V. Id. at 33.
Father’s claim relates to testimony presented by Stepmother on May 5,
2015. Stepmother testified that she picks L.V. up from school on Thursday
afternoons, and that L.V. is “often in clothing that is too small for him, that’s
ill-fitting. It often has stains or is dirty or tattered.” N.T., 5/5/15, at 29-30.
In support of this claim, the trial court was presented with pictures of L.V.’s
underwear, which were entered into evidence as Defendant’s Exhibits 3-A
and 3-B. Stepmother testified that “I take photographs of [L.V.’s]
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underwear every Thursday when he comes …. This is just the exhibit that
was selected.”5 Id. at 38-39. On July 30, 2015, Father testified that L.V.
reported being forced by Mother to read transcripts of the custody
proceedings, and that Mother informed L.V. that Father entered a picture of
his underwear into evidence. N.T., 7/30/15, at 71-73. Father stated that
his relationship with L.V. has worsened as a result of these events. Id. at
73-74.
On December 3, 2015, Mother testified by way of an offer of proof that
L.V. was exposed to the transcripts of the prior custody proceedings
inadvertently. Mother explained “that she was reading the transcript on her
computer at home, went to the restroom, … and when she came back [L.V.]
was sitting in front of the computer reading it. She immediately pulled him
away, realizing she should have closed the computer … before she went to
the restroom.” N.T., 12/3/15, at 22. In its opinion, the trial court accepted
Mother’s claim that she did not intentionally expose L.V. to the custody
hearing transcripts. Trial Court Opinion, 3/16/16, at 19.
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5
Father testified that he has taken only one picture of L.V.’s underwear, and
that “[w]e check him every Thursday but we don’t take photographs.” N.T.,
7/30/15, at 82, 90-91. When confronted with Stepmother’s prior testimony
that she takes pictures of L.V.’s underwear “every Thursday when he
comes,” Father stated, “I don’t think she meant every Thursday. I mean,
there have been occasions probably taking them and sending them to
[Mother] but nothing -- this is the only one that I know of.” Id. at 93.
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We again conclude that Father is not entitled to relief. It was within
the trial court’s discretion to accept Mother’s explanation that L.V. had been
exposed to the custody transcripts inadvertently, and to reject Father’s
assertion that Mother was attempting to turn L.V. against Father by forcing
him to read the transcripts. In his brief, Father suggests that we should
reject the trial court’s credibility finding, because it is implausible that L.V.
would be able to read and understand the transcripts. See Father’s Brief at
30 n.9. However, the record does not support Father’s claim that L.V.’s
reading skills are so limited that he would be unable to understand a court
transcript. As noted in connection with Father’s first argument, L.V. scored a
ninety-eight in Reading for Comprehension on his most recent report card.
See Plaintiff’s Exhibit 17. Father testified that L.V. is “a good reader” with
some comprehension issues, and that they recently read through a two
hundred thirty-eight page book together. N.T., 7/30/15, at 49-50; N.T.,
6/30/15, at 32.
In his seventh issue on appeal, Father challenges the trial court’s
findings with respect to Sections 5328(a)(1), (3), (4), (9), and (10).
Father’s Brief at 35-51. Father alleges, among other things, that Mother
refuses to cooperate with Father, that Mother neglects L.V., that Father
resides in a better community and provides L.V. with superior academic
assistance, and that the record does not support the trial court’s belief that
L.V. is doing well in his current school. Id. at 37-50.
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We conclude that these claims are meritless. Father’s allegation that
Mother is uncooperative relates primarily to a 2014 incident, described in the
trial court’s summary of facts, during which Mother filed an emergency
petition in an effort to prevent Father from taking L.V. to Disney World. The
trial court acknowledged at the conclusion of the custody hearing that “it
was wrong not to let the child go.” N.T., 12/3/15, at 85. Clearly, the trial
court was aware of the Disney World incident when making its custody
decision, and it was for the trial court, not this Court, to weigh the
significance of that event.
Concerning Father’s claim that Mother neglects L.V., Father alleged
during the custody proceedings that L.V. is mistreated by Mother in a variety
of ways. For example, Father emphasizes in his brief that Mother “neglected
to address a serious dental issue for several months, as [L.V.] suffered from
a dead tooth and teasing at school which resulted from it.” Father’s Brief at
49. As is the case with many of Father’s other allegations, evidence was
presented during the custody proceedings to rebut Father’s description of
events. Mother testified that L.V. did not have a “dead tooth,” but that he
had a discolored baby tooth that “is holding on for whatever reason and the
adult tooth is growing in behind it.” N.T., 7/30/15, at 128. According to
Mother, she discussed this tooth with L.V.’s dentist, who instructed her that
the tooth should not be pulled, because “that entails putting L.V. to sleep for
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something that is unnecessary. The tooth with fall out on its own.” Id. at
128-29.
Finally, we reject Father’s claims that the trial court was obligated to
award him primary physical custody because he lives in a nicer community
and can provide L.V. with a better education. As discussed above, L.V. has
resided his entire life with Mother. The record supports the trial court’s
finding that L.V. is doing well in his current school, and that L.V. is bonded
with his half-sister, who also resides in Mother’s home. It was not an abuse
of discretion for the trial court to conclude that these considerations
outweighed Father’s educational concerns, and that L.V.’s best interest
would be served by allowing him to remain in Mother’s primary physical
custody.
Father argues in his eighth issue that the trial court abused its
discretion by failing to conclude that Section 5328(a)(5) should weigh in
favor of Father, because L.V. has a beneficial relationship with Father’s
extended family, and because there was no evidence that would suggest
that L.V. has an equally beneficial relationship with Mother’s extended
family. Father’s Brief at 51-54.
At the conclusion of the custody hearing, the trial court found that
Section 5328(a)(5) did not weigh in favor of either parent, because both
Father and Mother have extended family in the area. N.T., 12/3/15, at 86-
87. The trial court stated that Section 5328(a)(5) “does not require, as
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Father suggests, a comparison of the relative superiority of each parent’s
extended family …. Even were this an appropriate factor, my finding would
have been the same.” Trial Court Opinion, 3/16/16, at 22.
We conclude once again that the trial court did not abuse its
discretion. While testimony was presented concerning L.V.’s positive
relationship with Father’s extended family, the trial court was free to
conclude that the testimony was exaggerated, or to reject the testimony in
its entirety. Indeed, it would be logical for the trial court to infer that L.V.’s
relationship with Father’s extended family would be somewhat limited, given
that L.V. did not see any of these family members for roughly the first five
years of his life. Meanwhile, L.V. has spent his entire life residing with
members of Mother’s extended family. Specifically, Mother, L.V., and L.V.’s
half-sister share a home with L.V.’s maternal grandparents, as well as L.V.’s
uncle and cousin. N.T., 12/3/15, at 12.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by awarding primary physical custody of L.V. to Mother, and
awarding partial physical custody to Father. See V.B., supra. Accordingly,
we affirm the trial court’s January 4, 2016 order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
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