S.E.D. v. G.D.M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.E.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
G.D.M. :
:
Appellant : No. 53 EDA 2016
Appeal from the Order Entered December 7, 2015 in
the Court of Common Pleas of Philadelphia County
Domestic Relations at No: 0C0513395
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 18, 2016
G.D.M. (“Mother”) appeals from the order entered December 7, 2015,
in the Court of Common Pleas of Philadelphia County, which awarded
primary physical custody of her son, S.S.D. (“Child”), born in February of
2005, to his father, S.E.D. (“Father”). After careful review, we affirm.
On April 4, 2014, Father filed a petition to modify the parties’ existing
custody order, entered March 10, 2009. Pursuant to that order, Mother
exercised primary physical custody of Child, Father exercised partial physical
custody, and both parents exercised shared legal custody. Following a
hearing on July 9, 2014, the trial court entered an interim order awarding
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*
Retired Senior Judge assigned to the Superior Court.
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Father primary physical custody and sole legal custody of Child, and
awarding Mother partial physical custody when the parties agree. The court
conducted further hearings on February 5, 2015, and August 17, 2015, after
which it entered additional interim orders. The court’s August 17, 2015
order expanded Mother’s periods of partial physical custody to every other
weekend.
Following a final hearing, on December 7, 2015, the court entered the
order complained of on appeal, which it again described as an “interim order
in the best interest of the child[.]” 1 Order, 12/7/15, at 1. Pursuant to this
order, Father was awarded primary physical and sole legal custody of Child.
Mother was awarded partial physical custody every other weekend from
Friday at 6:00 p.m. until the start of school on Monday morning. Mother
also was awarded partial physical custody following her noncustodial
weekends from Monday after school until the start of school on Tuesday
morning. Mother timely filed a notice of appeal on January 6, 2016, along
with a concise statement of errors complained of on appeal.2
Mother now raises the following issue for our review: “Did the trial
court abuse its discretion and commit an error of law in transferring legal
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1
Mother was pro se during the hearing, while Father was represented by
counsel.
2
The trial court did not file an opinion in this matter, either accompanying
the subject custody order, or in response to Mother’s concise statement.
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and physical custody without addressing each of the sixteen custody factors,
either in open court on the record or in writing shortly thereafter?” Mother’s
Brief at 1 (unnecessary capitalization and suggested answer omitted).
Before reaching the merits of Mother’s issue, we first must consider
whether the December 7, 2015 custody order was appealable. “‘[S]ince we
lack jurisdiction over an unappealable order it is incumbent on us to
determine, sua sponte when necessary, whether the appeal is taken from an
appealable order.’” Gunn v. Automobile Ins. Co. of Hartford,
Connecticut, 971 A.2d 505, 508 (Pa. Super. 2009) (quoting Kulp v.
Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)).
It is well-settled that, “[a]n appeal lies only from a final order, unless
permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.
Super. 2013). Generally, a final order is one that disposes of all claims and
all parties. See Pa.R.A.P. 341(b). “[A] custody order will be considered
final and appealable only if it is both: 1) entered after the court has
completed its hearings on the merits; and 2) intended by the court to
constitute a complete resolution of the custody claims pending between the
parties.” G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996).
In this case, while the trial court described the custody order of
December 7, 2015, as an “interim order,” our review of the record does not
reveal that the court intended to conduct any future custody proceedings.
The court did not schedule any additional proceedings, nor did the court
state during the final hearing that any additional proceedings would be
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necessary. Further, the order appears to completely resolve the parties’
custody dispute. We therefore conclude that the December 7, 2015 custody
order is final and appealable, and we proceed to address the merits of
Mother’s claim.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted). The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a).
(a) Factors.--In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.
(2) The present and past abuse committed by a
party or member of the party’s household, whether
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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).
(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).
Here, Mother argues that the trial court abused its discretion by
awarding primary physical custody of Child to Father without considering the
Section 5328(a) factors. Mother’s Brief at 3-4. Mother observes that the
court did not file a written opinion explaining its custody decision, nor did
the court set forth its analysis of the factors at the conclusion of the custody
hearing on December 7, 2015. Id.
Mother is correct that trial courts must generally conduct an analysis
of the Section 5328(a) factors when making any award of custody, and that
failure to do so is an error of law. See 23 Pa.C.S.A. § 5328(a); S.W.D., 96
A.3d at 401. However, it was not necessary for the trial court to consider
the Section 5328(a) factors in the instant matter, as the record reveals that
the court entered the subject custody order upon agreement by both parties.
The following exchange took place during the hearing on December 7, 2015.
[Mother]: . . . . I would like more time with my son.
THE COURT: Have you discussed it with dad?
[Mother]: I didn’t know I was allowed to.
THE COURT: Do you have a PFA?
[Mother]: No.
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THE COURT: You can talk to him.
[Mother]: Okay. But is it his decision, like, I don’t know?
THE COURT: Look, you know, the Court can’t make all
decisions in the life of the children that come to court. It would
seem to be an easier way to do it as nature [sic] parents to
come to an agreement to make it easier for everybody.
***
THE COURT: . . . . What was the offer again?
[Father’s counsel]: That [Child] go to be with mom every
Monday night when she has him for the weekend, obviously, that
additional Monday would follow the weekend. It would be a
three day weekend and then on the off weekend she would still
be with him for Monday nights.
THE COURT: Give it to me. It’s every other weekend,
when?
[Father’s counsel]: Every other weekend from Friday to
Monday.
THE COURT: Friday, what time?
[Father’s counsel]: Friday at 6:00 p.m.? Is it 6:00 p.m.?
[Father]: Um-hum. Six o’clock.
[Father’s counsel]: Six o’clock to Sunday at seven. I mean
until Monday. It will be until Monday. Mom will drop him off at
school on Monday morning. And then on the alternate week,
mom can pick him up from school after school on Monday and he
would spend the night on Monday night.
***
THE COURT: You got that?
[Mother]: Yes.
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THE COURT: Acceptable?
[Mother]: (Unresponsive)
THE COURT: Hello.
[Mother]: If that’s what I can get, yes.
THE COURT: Well, that’s what he’s offering.
[Mother]: Okay.
(Brief Pause)
THE COURT: You know if you learn how to talk to him
there’s probably a whole lot more you can get. I don’t know, but
you have to talk to him.
[Mother]: I don’t have a problem with talking to him. I
just don’t want to argue with him.
THE COURT: Well, I can’t control your arguing only you
two can so we’ll draft up the new order to expand your rights.
[Father’s counsel]: Thank you, Your Honor.
N.T., 12/7/15, at 8-12.
Thus, the record demonstrates that Mother agreed, albeit reluctantly,
to the proposed custody schedule presented by Father’s counsel. See
Pa.R.C.P. No. 1915.7 (“If an agreement for custody is reached and the
parties desire a consent order to be entered, they shall note their agreement
upon the record or shall submit to the court a proposed order bearing the
written consent of the parties or their counsel.”). While Mother may file a
petition seeking to modify the December 7, 2015 custody order in the best
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interest of Child, she may not claim that the trial court erred by entering
that order after she expressly consented to it in open court.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by entering the December 7, 2015 custody order without
consideration of the Section 5328(a) factors. Accordingly, we affirm the
court’s order.
Order affirmed.
Judge Strassburger joins this memorandum.
President Judge Emeritus Ford Elliott files a dissenting memorandum
statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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