J.M. v. T.C.M. ( 2017 )

J-A19032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
T.C.M., :
:
Appellant : No. 745 EDA 2017
Appeal from the Order entered January 26, 2017
in the Court of Common Pleas of Montgomery County,
Civil Division, No(s): 2016-09945
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 21, 2017
T.C.M. (“Father”) appeals from the Order (hereinafter, “the Custody
Order”) granting J.M. (“Mother”) primary physical custody, and shared legal
custody, of K.M. (born in November 2000), A.M. (born in August 2003), and
L.M. (born in October 2006) (collectively, “the Children”), and granting Father
partial physical custody and shared legal custody.1 We affirm.
The trial court summarized the relevant factual and procedural history
of this appeal, which we incorporate as though fully set forth herein. See
Trial Court Findings of Fact, 1/26/17, at 1-4.
The trial court entered the Custody Order on January 26, 2017. On the
same date, the court issued its Findings of Fact, wherein it addressed the
seventeen custody factors (hereinafter, “the best interest factors”) set forth in
1
The Custody Order provided that, during the Children’s summer vacation
from school, Father and Mother shall have shared physical custody.
J-A19032-17
subsection 5328(a) of the Child Custody Act (“the Act”). See 23 Pa.C.S.A.
§ 5328(a).
Father timely filed a Notice of Appeal, followed by a court-ordered
Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of
errors complained of on appeal, presenting eighteen separate issues. The
trial court then issued a Pa.R.A.P. 1925(a) Opinion (hereinafter, the “Rule
1925(a) Opinion”).
Father now presents the following questions for our review:
A. Whether the [trial] court abused its discretion and committed
an error of law in weighing the [best interest] factors by
granting [] Mother primary custody of the Children?
B. Whether the [trial] court properly applied the [best interest]
factors in analyzing the best interests of the Children?
C. Whether the [trial] court abused its discretion and committed
an error of law in denying [] Father the opportunity to
participate in the Children’s daily lives?
D. Whether the [trial] court deviated from applicable standards
in establishing a schedule of when [] Father would be able to
have physical custody of the Children individually and
together?
Father’s Brief at 5-6 (issues renumbered for ease of disposition, capitalization
omitted).
“We review [a] trial court’s custody order for an abuse of discretion.”
M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super. 2017). In conducting this
review,
[t]he appellate court is not bound by the deductions or inferences
made by the trial court from its findings of fact, nor must the
-2-
J-A19032-17
reviewing court accept a finding that has no competent evidence
to support it. However, this broad scope of review does not vest
in the reviewing court the duty or the privilege of making its own
independent determination. Thus, an appellate court is
empowered to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may not
interfere with those conclusions unless they are unreasonable in
view of the trial court’s factual findings; and thus, represent a
gross abuse of discretion.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and
brackets omitted). This Court has further explained that
[o]n issues of credibility and weight of the evidence, we defer to
the findings of the trial court[,] who has had the opportunity to
observe the proceedings and demeanor of the witnesses. The
parties cannot dictate the amount of weight the trial court places
on evidence. Rather, the paramount concern of the trial court is
the best interest of the child. 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. The test is whether the evidence of
record supports the trial court’s conclusions.
Id. (citations, paragraph breaks and brackets omitted); see also Ketterer v.
Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (stating that “[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.”) (citation omitted).
In any custody case, the primary concern is the best interests of the
child. See 23 Pa.C.S.A. §§ 5328, 5338; see also M.G., 155 A.3d at 1091.
In assessing the child’s best interest, the trial court must consider the best
interest factors, enumerated at subsection 5328(a) as follows:
-3-
J-A19032-17
(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).
(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, education and special
needs of the child.
-4-
J-A19032-17
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328. “All of the [best interest] factors … are required to be
considered by the trial court when entering a custody order.” J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted).
Subsection 5323(d) of the Act mandates that, when the trial court
awards custody, it “shall delineate the reasons for its decision on the record in
open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). “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
[best interest] factors are considered and that the custody decision is based
on those considerations.” A.V., 87 A.3d at 823 (citation and quotation marks
omitted); see also id. (stating that “[a] court’s explanation of reasons for its
-5-
J-A19032-17
decision, which adequately addresses the relevant factors, complies with
Section 5323(d).”).
Here, we will address Father’s first three issues together, as they are
closely related, and all essentially challenge the trial court’s weighing of the
best interest factors.
In his first issue, Father contends that the trial court “erred in making
factual findings that suggested that both Mother and Father were capable of
[exercising] primary physical custody, but then granted [primary] physical
custody to [] Mother.” Father’s Brief at 16. Father additionally argues that
“[t]he [trial] court’s findings of fact[] are not reasoned, and instead, make
prejudicial statements in favor of [] Mother, such as ‘Mother worked as the
CEO of the family.’ The [trial] court frowned upon [] Father being a surgeon
and physician.” Id. at 17-18 (quoting Trial Court Findings of Fact, 1/26/17,
at 9).
In his second issue, Father asserts that the trial court improperly
applied the best interest factors in analyzing the best interests of the
Children. Father’s Brief at 18. Father urges that “[t]here is no dispute that
[he] is able, available and wanted to have physical custody of the Children[,
yet he] … was only entitled to one overnight per week with all three Children
at the same time.” Id. at 21; see also id. at 22, 23 (asserting that such
custody schedule causes disruption in Father’s relationship with the Children
and “separation among the Children”). Father additionally argues that the
-6-
J-A19032-17
trial court overlooked that (1) Mother made disparaging comments to the
Children concerning, inter alia, Father’s alleged alcohol abuse; (2) in
contradiction of Mother’s claim that Father is an alcoholic, Father submitted
an “expert report” opining that Father “had a low probability of having an
alcohol [] abuse” issue; and (3) paternal grandmother had often helped
Mother care for the Children. Id. at 22, 23; see also id. at 22 (asserting
that Mother’s testimony at the custody hearing was not credible).
In his third issue, Father argues that the trial court improperly denied
him the opportunity to participate in the Children’s daily lives. Id. at 30.
According to Father,
[t]here is no evidence in the record that [he] did not participate in
the Children’s daily well-being. The [trial] court stated in its [Rule
1925(a)] [O]pinion that the “majority of the household duties had
always been, and currently were still, performed by Mother.”
“Household duties” is not a statutory factor in awarding primary
physical custody. Such an arbitrary statement punishes [] Father
for being a physician and surgeon.
***
Moreover, if [] Father is able to maintain fifty percent [physical]
custody during the summer, when there are still household chores
to be done and [] Father still works, it is unreasonable to suggest
that the factors must change during the school year.
Id. at 32-33 (citations omitted). Father further points out that the trial court
found that “Father is also an involved, loving, doting parent[,] who attends to
the[] [Children’s] activities, participates in school programs and always
makes time to engage with the [C]hildren.” Id. at 34 (quoting Rule 1925(a)
Opinion, 3/31/17, at 15). Father contends that this finding “contradicts” the
-7-
J-A19032-17
trial court’s awarding primary physical custody to Mother. Father’s Brief at
34.
In its Findings of Fact, the trial court thoroughly addressed all of the
best interest factors, and determined that it was in the Children’s best
interests to award Mother primary physical custody during the school year.
See Trial Court Findings of Fact, 1/26/17, at 4-12. Additionally, the court
addressed Father’s above-described claims in its Rule 1925(a) Opinion,
adeptly summarized the relevant law, and determined that the court did not
abuse its discretion in weighing the best interest factors, or in awarding
Mother primary physical custody during the school year. See Rule 1925(a)
Opinion, 3/31/17, at 6-9, 14-17. As the trial court’s analysis is sound, and
the record supports its factual findings, we incorporate it herein by reference.
See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court Findings of
Fact, 1/26/17, at 4-12. Like the trial court, we decline Father’s invitation to
disturb the court’s findings and weighing of the evidence, in favor of the
findings and custody arrangement that Father proposes. See M.J.M. v.
M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013) (rejecting appellant/mother’s
argument asking this Court to reconsider the trial court’s findings and
credibility determinations with regard to the best interest factors); see also
A.V., supra (stating that a reviewing court should defer to the trial court on
issues of credibility and weight of the evidence). Accordingly, as the trial
court’s sound analysis of the best interest factors was careful and thorough,
-8-
J-A19032-17
and we discern no abuse of the court’s discretion in fashioning a reasonable
award of physical custody that was in the Children’s best interests, we defer
to the court’s decision. See A.V., supra (stating that “[a]ppellate
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.”); see also id., supra, (stating that a reviewing court
may not interfere with a trial court’s conclusions where they are reasonable in
view of the trial court’s factual findings). We thus affirm on the basis of the
trial court’s Rule 1925(a) Opinion and Findings of Fact as to Father’s first
three issues. See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court
Findings of Fact, 1/26/17, at 4-12.
In his final issue, Father argues that the trial court rendered an
“arbitrary” physical custody award, which “was in deviation of the statutory
guideline and not in the Children’s best interests[,]” where “Father only has
[all] three Children together four times a month over a ten month period,
even though [Father] lives near [] Mother, closer to [the Children’s] school,
[and] on the bus route ….” Father’s Brief at 25-26. Father urges that
[t]he better solution to meet the Children’s best interests was …
[to award the parties] shared physical custody[, and] … a more
balanced schedule[,] where all three Children could stay with []
Father together more than four nights per month during the
school year, [which is] … a disproportionate [and] unjustified
holding. … The arbitrary decision of the [trial] court does not
reflect the reasoning as to why [] Father can have the Children
together 4 nights [per month] during ten months out of the year,
and fifteen nights [per month] for two summer months.
-9-
J-A19032-17
Id. at 29.
In its Rule 1925(a) Opinion, the trial court explained that it (1) had
considered the Children’s “articulate and well reasoned” desires for a physical
custody schedule that was best suited to their respective individual needs;
and (2) was cognizant that the court had fashioned an unconventional
custody schedule, whereby the Children were not always together during
Father’s custodial time, and each had a slightly different schedule. See Rule
1925(a) Opinion, 3/31/17, at 10-11. The court determined that,
nevertheless, it was appropriate, and in the Children’s respective best
interests, to employ a physical custody schedule that the Children expressed
they prefer, even though it does not ensure that the Children are all together
at all times. Id. The trial court’s reasoning is sound and supported by the
record, and we discern no abuse of the court’s discretion in finding that the
unconventional physical custody schedule put into place was in the Children’s
best interests.2 Accordingly, we affirm on this basis in rejecting Father’s final
issue. See id.
Order affirmed.
2
Our determination is unaltered by Father’s pointing out that that he was
awarded shared physical custody during the Children’s summer vacation, but
not during the remainder of the year. The trial court found that such
arrangement was the one best suited to the Children’s best interests, and
their expressed preferences. See Rule 1925(a) Opinion, 3/31/17, at 8-9
(stating, inter alia, that “the [C]hildren have a very strong preference towards
spending more time in Mother’s household during the school year in order to
provide them with consistency and stability, especially in their academic
pursuits.”); see also id. at 10-11. Contrary to Father’s assertion, this
physical custody arrangement is neither arbitrary nor unreasonable.
- 10 -
J-A19032-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2017
- 11 -
Circulated 08/03/2017 04:05 PM
2016-09945-0042 Order, Page 1
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA
FAMILY DIVISION
J-M :NO. 2016-09945
Seq. 8 (5/20/ 16) Defendant's
Emergency Petition for Custody
·vs.
Seq. 9 (5/24/ 16) Plaintiff's
Answer and New Matter'
FINDINGS OF FACT
I. History of the Case
J-M-("Mother")
parents of three minor childr:en:
2000, age 16), A- M-
K-and T.C.
M-
M-("Father.")
(date of birth: November.
(date of birth: Augustll 2003, age 12) and
are the
L.<9111111 [date of birth: October" 2006, age 10).
On October 9, 2015, the parents separated and Father moved out of the
marital residence, located at - Royal Oak Drive, Blue Bell, PA 19422.
Mother and the three children have lived primarily at the martial residence
since that date. After Father moved out of the marital residence, the parties
jointly decided that Father would have custody of the children on Monday
afternoons and Thursday afternoons and every Friday after school, overnight to
Saturday between 3:00 p.m. and 7:00 p.m. This arrangement was constructed
based on what the parties felt was in the best' interests of each of the children
and was extremely flexible to take the children's extra-curricular activities and
school work into consideration. On many occasions, one or more of the
children did not go with Father because of schoolw?_rkor oth~r_ activities.
1111 ~l·~·~~-1111
2016-09945-0042 1/26/2017 3:31 PM # 11139064
Order
Page 1 of 13 Rqn#Z3020533 F.·!
Opinion
# 11223647
Rq,1!!23096474 Fee:S0.00
\!ark Levv- MontCo Prothonotary
OPINION
FERMAN, J. March 31, 2017
I. Introduction
Appellant, TII C. M- ("Father"), appeals to the Superior Court
of Pennsylvania from this Court's Final Custody Order dated January 25,
2017. On February 27, 2017, Appellant timely filed both the Notice of Appeal
and Statement of Matters Complained of on Appeal. On March 6, 2017, the
Superior Court of Pennsylvania designated Appellant's appeal as Children's
Fast Track Appeal.
On January 25, 2017, following a protracted hearing on January 6, 2017
on Father's Emergency Petition for Custody filed May 20, 2016, this Court
issued its "Findings of Fact" and Final Custody Order.1 The Final Custody
Order awarded the parties shared legal custody, with Mother being awarded
primary physical custody and Father being awarded partial physical custody
during the school year. During the summer months, the Final Custody Order
I The Final Custody Order was signed January 25, 2017 and filed January 26, 2017. It can be
found.at docketing sequence forty-one (41). The Findings of Fact were filed January 26, 2017
and can be found at docketing sequence forty-two (42).
2016-09945-0052 Opinion, Page 2
awarded the parties shared (50 / 50) physical custody, which was to be
determined by mutual agreement.
n. Facts and Procedural History
The undersigned directs the Superior Court of Pennsylvania to her
"Findings of Fact" filed January 26, 2017 where the Facts and Procedural
History of this case are detailed.
III. Issues on Appeal
Overall, Appellant raises eighteen (18) issues in his Statement of Issues
Complained of on Appeal.? Appellant raises the following issues:
1. Whether {the} Court erred as a matter of law by failing to apply to Father the
presumption that each parent is capable of being the custodial parent.
2. Whether [the} Court erred in ruling that factors (1), (4), (1 OJ, (12), (14), and (15)
each/ all weighed in favor of Mother where the weight of the evidence favored
· Father or favored both parties equally.
3. Whether {the] Court erred in ruling Father is only entitled to one overnight per
week will all three (3) children at the same time.
4. Whether /the] Court erred in allowing the son to stay with Father three (3)
nights per week while refusing to grant Father custody of the 2 minor daughters
on the same overnights.
5. Whether the Court erred m entering an order that grants Father only 1
overnight per week with his daughters thereby creating separation and
alienation between the Children.
6. Whether Court erred in entering an order where Father never has a weekend
with all three (3) Children.
7. Whether the Court erred in.finding Father is only entitled to four (4) overnights
per month with all three of his children. ·
See Appellant's Statement of Matters Complained of on Appeal filed February 27, 2017 and
'2
can be found at docketing sequence forty-four (42).
2016-09945-0052 Opinion, Page 3
8. Whether the Court erred in finding Father cannot attend to the daily physical,
emotional, developmental, educational and special needs of the children as a
physician and surgeon while the Court clearly showed a female bias by stating
"Mother worked as the CEO of the family."
9. Whether the Court erred by considering alcohol as playing a part in the
marriage and in the raising of the Children.
1 0. Whether the Court erred in ruling that it is in the best interest of the children
to allow the parties' 2 children to commute back and forth at 8 pm at night during
the school week because "they feel the need to return to mother's home to
complete their school work" clearly showing Mother has alienated the daughters.
11. Whether the Judge erred in finding during the school year Father can only
have 1 overnight per week with all three children but during the summer Father
has 50 percent custody.
12. Whether the Judge erred in finding Father is completely capable of having
the children equally in the summer but cannot attend to their needs during the
school year.
13. Whether the Court erred in denying Father's Motion in Limine and instead
not only considered Mother's testimony but utilized that testimony as a factor in
favor of mother while her testimony was not credible and went against the
weight of objective, non-bias evidence and medical testing.
14. Whether the Court erred in ruling on custody when a custody evaluator was
not appointed and no custodial evaluation was ever conducted.
15. Whether the Court erred in interviewing the children outside the purview of
counsel and asked the Children questions which may have showed favoritism
and bias toward Mother.
16. Whether the Court erred in finding Mother has not alienated the children,
specifically the daughters when the evidence showed mother told the children
the day before a vacation with Father that father had broken the bond of
marriage and that father had drinking problems that their eldest daughter
should be cognizant of his drinking and should ask Father every time she gets in
the car with him.
1 7. Whether the Court showed a bias to Mother and her counsel by conducting
significant conferences in Chambers and allowing Mother's attorney to make
continuous statements regarding father's alleged alcohol dependency and
alleged infidelity which were evidence including 2 medical expert opinions and
hair follicle testing not withstanding witness testimony.
2016-09945-0052 Opinion, Page 4
18. Whether the Court erred in giving mother primary custody where the
evidence showed mother has, for almost 8 years, required help at least 1 day per
week from Father's mother and another day a week from her own parents to
care for the kids, clearly contradicting the Court's biased comment that Mother
was somehow a "CEO of the family."
IV. Discussion
A. General Standard of Review
In reviewing a custody order entered by a trial court, the appellate court's
scope is of the "broadest type [and the] standard [of review] is [an] abuse of
discretion." McMillen v. McMillen, 602 A.2d 845, 847 (1992). An abuse of
discretion only "occurs if, in reaching its conclusion, [the] trial court overrides
or misapplies the law or exercises judgment that is manifestly unreasonable, or
reaches a conclusion that is the result of partiality, prejudice, bias or ill will as
shown by the evidence of record." Gates v. Gates, 967 A.2d 1024, 1028
(Pa.Super.2009).
The appellate court "must accept findings of the trial court that are
supported by competent evidence of record." McMillen at 847. The role of the
appellate court "does not include making independent factual determinations."
Id. As it pertains to issues of credibility and the weight of the evidence, the
appellate court "must defer to the trial judge who presided over the proceedings
and thus viewed the witnesses first hand." Johns v. Cioci, 865 A.2d 931, 936
(Pa. Super. 2004) (internal citations omitted). Moreover, the appellate court
may reject the trial court's conclusions "only if they involve an error of law, or
are unreasonable in light of the sustainable findings of the trial court." Hanson
v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).
As with all child custody cases, the "paramount concern is the best
interests of the child, based on a consideration of all .factors that legitimately
affect the child's physical, intellectual, moral and spiritual well-being." C. W. v.
2016-09945-0052 Opinion, Page 5
K.A. W., 774 A.2d 745, 748 (Pa. Super. Ct. 2001) (quoting, E.A.L. v. L.J. W., 662
A.2d 1109 (1995)).
In determining the best interest of the child, the court shall consider all
relevant factors including the sixteen custody factors set forth at Section
5328(a). The Custody Act requires the court to "delineate the reasons for its
decision on the record in open court or in a written opinion or order." 23
Pa.C.S.A. §5323(d).
Lastly, it is within the "trial court's purview as the finder of fact to
determine which factors are most salient and critical in each particular case.
M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. Ct. 2013). The parties cannot
dictate the amount of weight the trial court places on evidence. S.M. v. J.M.,
811 A.2d 621, 623 (Pa.Super.2002)(quoting Robinson v. Robinson, 645 A.2d
836, 838 (1994)).
This Court's findings, generally, should be given the appropriate amount
of deference, and this Court's Custody Order should be affirmed. Following is
this Court analysis regarding the specific issues raised by Father in his
Statement of Matters Complained of on Appeal.
B. Presumption in Favor of Father
In his Statement of Matters Complained of on Appeal, at Issue One (1),
Father asserts that this Court abused its discretion by failing to apply to Father
a presumption that each parent is capable of being the custodial parent.
Father's assertion here fails, as this Court, under the law, is unable to apply
any presumptions in favor of either parent.
"In any action regarding the custody of the child between the parents of
the child, there shall be no presumption that custody should be awarded to a
particular parent." 23 Pa.C.S.A. § 5327. Additionally, "In making a
determination under subsection (a), no party shall receive preference based
2016-09945-0052 Opinion, Page 6
upon gender in any award granted under this chapter. 23 Pa.C.S.A. § 5328(b).
Moreover, "the Custody Law does not countenance presumptions between
parents based upon gender or any other characteristics." D.K.D. v. A.L.C., 141
A.3d 566, 572 (Pa. Super. Ct. 2016), reargument denied (July 28, 2016), appeal
denied, 330 WAL2016, 2016 WL 6462545 (Pa. Nov. 1, 2016).
Accordingly, based upon the evidence of record, this Court did not abuse
its discretion.
C. Weight of the Evidence and the Application of the Custody Factors
Father raises three (3) issues in his Statement of Matters Complained of
on Appeal regarding this Court's weighing of the evidence and. its application of
the custody factors. Those issues are raised in Father's Statement of Matters
Complained of on Appeal at Issue Number Two (2), Number Sixteen (16), and
Number Eighteen ( 18). All of which will be discussed by this Court collectively
in this section.
First, Father asserts at Issue Number Two (2) in his Statement of Matters
Complained of on Appeal that this Court abused its discretion by ruling factors
one ( 1), four ( 4), ten ( 10), twelve ( 12), fourteen ( 14), and fifteen ( 15) in favor of
Mother where the weight of the evidence either favored Father or both parties
equally. Father's assertion here fails, as this Court, as the finder of fact, has
the sole discretion to determine the amount of weight to place on specific
pieces of evidence and to determine which factors are critical to the best
interest of the child in each particular case.
Pursuant to 23 Pa.C.S.A. § 5328(a), when 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 ... " The parties are unable to dictate the amount of weight the
trial court places on evidence. That is within the "sole discretion of the trial
2016-09945-0052 Opinion, Page 7
court as the finder of fact, whose paramount concern is the best interest of the
[children]." S.M. v. J.M., 811 A.2d 621, 623 (2002). As the Superior Court
stated in M.J.M. v. M.L.G., "It is within the trial court's purview as the finder of
fact to determine which factors are most salient and critical in each particular
case." M.J.M. v. M.L.G., 63 A.-3d331, 339 (2013).
Furthermore, the appellate court "must defer to the trial judge who
presided over the proceedings and thus viewed the witnesses first hand." Johns
v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004)(internal citations omitted). The
appellate court may reject the trial court's conclusions "only if they involve an
error of law, or are unreasonable in light of the sustainable findings of the trial
court." Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).
Here, this Court's conclusions were not an error of law or unreasonable
based upon the evidence of record. As a result, this Court did not abuse its
discretion in weighing factors one (1), four (4), ten (10), twelve (12), fourteen
(14), and fifteen (15) in favor of Mother. This Court, sitting as finder of fact,
made determinations of credibility and weighed the evidence presented
throughout the custody trial. Based upon the evidence of record, this Court
determined that factors one, four, ten, twelve, fourteen, and fifteen-favored
Mother."
Second, Father asserts at Issue Number Sixteen (16) in his Statement of
Matters Complained of on Appeal that this Court abused its discretion by
failing to conclude that Mother alienated the children when the evidence,
according to Father, showed that Mother told the children that Father had
broken the bonds of marriage and that Father had drinking problems that the
eldest daughter should be aware of and should ask Father about every time
she gets in the car with him.
3This Court's application of the custody factors to this case can be found in its Findings of
Fact filed January 26, 2017. •
2016-09945-0052 Opinion, Page 8
This Court, as the finder of fact, in its sole discretion, found no evidence
that Mother alienated the children from Father. In fact, while this Court found
evidence that both parents attempted to turn the children against the other
parent, neither of their attempts to turn the children against the other were
successful. In its Findings of Fact filed January 26, 2017, this Court found
that both parents "engaged in speaking negatively to the children about the
other parent."4 Moreover, this Court found that, "The children are mature and
perceptive enough that this conduct has not turned them away from either
parent."S
As previously stated above, it is the sole discretion of the trial court as
the finder of fact to determine the amount of weight to place on evidence and to
determine which factors are critical to the best interest of the children as issue.
As a result, based upon the evidence of record, this Court did not abuse its
discretion in failing to conclude that Mother alienated the children.
Third, Father asserts at Issue Number Eighteen (18) in his Statement of
Matters Complained of on Appeal that this Court abused its discretion in
awarding Mother primary custody where the evidence showed Mother has, for
almost eight (8) years, required help at least one (1) day per week from Father's
mother and another day a week from her own parents to care for the children.
Father's assertion here fails.
Here, this Court conducted a detailed analysis of the custody factors and
concluded that it was in the best interest of the children to award Mother
primary physical custody during the school year. In its Findings of Fact, this
Court found based upon the evidence of record that Mother and Father are
both loving and capable parents, but that the majority of household duties had
always been, and currently were still, performed by Mother. This Court
concluded that the children relied on Mother pre-separation and currently to
4 See factor 8 of this Court's Findings of Fact dated January 26, 2017.
s Id.2016-09945-0052 Opinion, Page 9
manage their affairs, and that the children were emotionally close to Mother
and relied on her to maintain a sense of daily consistency. This Court also
found that Father is a loving and doting parent, who is fully capable of
performing all the required parental duties, and that he makes the children a
priority in his life despite his schedule and the demands of his profession life.
This Court also found that the children have a very strong preference towards
spending more time in Mother's household during the school year in order to
provide them with consistency and stability, especially in their academic
pursuits.
The custody factors are not a mathematically equation. In reaching
conclusions about the applicability of the custody factor, this Court is not
mandated to calculate the number of factors that might favor each parent and
make a mathematical determination of which parent earned more factors to
fashion an award of custody. Rather, the Court makes a holistic analysis of the
familial situation and strives to fashion a custody award that is in the best
interest of the children. Father is not entitled to select or mandate how the
Court analyses and weighs the various factors. This Court did not ignore the
fact that Mother receives help from others occasionally. This Court simply did
not weigh that fact as heavily as Father insists it should have been weighed.
As stated previously, it is within the sole discretion of this court, sitting
as fact finder whose paramount concern is the best interest of the children, to
determine the amount of weight to place on evidence. As a result, based upon
the evidence of record, this Court did not abuse its discretion.
D. Children's Preference
Father assets at Issues Three (3), Four (4), Five (5), Six (6), Seven (7), Ten
(10), Eleven (11), and Twelve (12) in his Statement of Matters Complained of on
Appeal that this Court abused its discretion in giving significant weight to the
2016-09945-0052 Opinion, Page 10
children's preferences. Father's assertion here fails as well. This Court did not
abuse its discretion in giving significant weight to the children's preference.
"Although the express wishes of a child are not controlling in custody
decisions, such wishes do constitute an important factor that must be carefully
considered in determining the child's best interest." McMillen v. McMillen, 602
A.2d 845, 847 (1992) (internal citations omitted). The trial court, as the finder
of fact, can best determine the weight to be given to a child's testimony as to
their preference. Id. "The weight to be accorded a child's preference varies with
the age, maturity and intelligence of that child, together with the reasons given
for the preference." Wheeler v. Mazur, 793 A.2d 929, 937-38 (Pa. Super.
2002)(internal citations omitted). As the child grows older, more weight must
be given to the child's preference. Id. Where both parents are equally loving and
capable, the custodial preferences of the child or children may "tip the evidence
scale." McMillen, 602 A.2d at 848.
All three children, who ranged from ages ten (10) to sixteen (16), were
interviewed by this Court separately on the record. Collectively, the children
presented as thoughtful, kind, mature, and compassionate individuals. The
children were intelligent, articulate and well-reasoned in their thinking, and
possessed a clear ability to articulate their thoughts and wishes. All three
children expressed what type of schedule best suited their personal needs
without a bias toward or against either parent. It was clear to this Court that
the children loved both of their parents, and that both parents were equally
loving and capable."
Although this Court would have preferred a custody order that provided
a more conventional custody schedule where the children are all together
during a parent's custodial time, this Court concluded, after interviewing the
6For a more detailed analysis of the children's preference, the Superior Court is directed to
Factor Seven (7) of this Court's Findings of Fact filed January 26, 2017.
2016-09945-0052 Opinion, Page 11
children, that this unconventional schedule, in which each child has a slightly
different schedule, was the schedule that the children prefer and that most
effectively satisfied the best interest of each child individually.
As stated in In re Russo, the general rule "must yield to the paramount
principle that the best interests of each individual child must be the
determining factor." In re Russo, 346 A.2d 355, 357 (Pa. Super. 1975). Here,
this Court concluded that in this case, with these children, the best interest of
the children was not served by the general rule and that there was no evidence
that the children's separation has caused alienation of each other or either
parent. As a result, this Court did not abuse its discretion in creating an
unconventional schedule in accordance with the preference of each individual
child.
E. Evidentiary Issues
Father raises three (3) issues in his Statement of Matters Complained of
on Appeal that are evidentiary based, and will be discussed by this Court
holistically under this subsection. Those issues are raised in Father's
Statement of Matters Complained of on Appeal at Issues Thirteen (13),
Fourteen ( 14), and Fifteen ( 15).
First, at Issue Number Thirteen (13) in his Statement of Matters
Complained of on Appeal, Father asserts that this Court abused its discretion
by denying his Motion in Limine and instead not only considered Mother's
testimony but utilized her testimony as a factor in favor of Mother while her
testimony was not credible and went against the weight of objective, non-
biased evidence and medical testing. Father's assertion here fails, as this Court
did not abuse its discretion in deferring its evidentiary rulings until trial as
objections arose.
.. ·····--- --------
2016-09945-0052 Opinion, Page 12
A Motion in Limine is a "procedure for obtaining a ruling on the
admissibility of evidence prior to or during trial, but before the evidence has
been offered." Com. Johnson, 582 A.2d 336, 337 (Pa. Super.1990), affirmed,
626 A.2d 514 (1993). A Motion in Limine may "preserve an objection for appeal
without any need to renew the objection at trial, but only if the trial court
clearly and definitively rules on the motion." Blumer v. Ford Motor Co., 20 A.3d
1222, 1232 (Pa. Super. 2011). On the other hand, "if the trial court defers
ruling on a motion in limine until trial, the party that brought the motion must
renew the objection at trial or the issue will be deemed waived on appeal." Id.The admissibility of evidence is "vested in the sound discretion of the trial court
and will not be reversed on appeal absent an abuse of discretion." Com. v.
Brown, 839 A.2d 433, 435 (Pa. Super. 2003)(internal citations omitted.) An
abuse of. discretion occurs when a trial court, "in reaching its conclusions,
overrides or misapplies the law, or exercises judgment which is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will." Id.Here, on January 4, 2017, Father filed a pre-trial statement pursuant to
this Court's scheduling order. In his pre-trial statement, Father notified this
Court and opposing counsel that he would be motioning this Court for the
preclusion of certain evidence prior to the start of trial. Father sought to
preclude: (1) the testimony of Hollie Boizman and Priscilla Singleton; and (2),
evidence pursuant to Rules 104(a), 403, 404, 405, 410 (and 42 Pa.C.S.A. §
6142), 602, 702, and 706.
Prior to trial, Mother notified the Court and counsel that she would not
call Hollie Boizman and/ or Priscilla Singleton as witnesses, resolving those
evidentiary issues Father raised in his pre-trial statement regarding those
witnesses. 7 This Court is unable to respond to specifics as Father failed to raise
the specific evidentiary issues in which this Court abused its discretion.
However, all other evidentiary issues raised by Father in his pre-trial statement
1 See Notes of Testimony from January 6, 2017 at pages 4-5.
2016-09945-0052 Opinion, Page 13
were not handled preliminary, but were deferred by this Court and ruled upon
as the evidentiary issues arose during trial upon Father's objection.
For example, Father's counsel objected to the relevance of Mother's
counsel's question on cross-examination pertaining to whether Father's
employer knew about his pending DUI charge.s This Court overruled Father's
counsel's objection stating, "You questioned him extensively about whether or
not he's been disciplined or whether consequences have been imposed at work,
and I think that's a fair cross-examination question based upon the questions
you've asked." (N.T. 1 /6/ 17 pages 31-31). Accordingly, this Court did not
abuse its discretion in deferring its ruling on Father's Motion in Limine until
trial.
Second, at Issue Number Fourteen (14) in his Statement of Matters
Complained of on Appeal, Father asserts that this Court abused its discretion
in ruling on custody when a custody evaluator was not appointed and no
custodial evaluation was ever conducted.
Pursuant to Pa.R.C.P. No. 1915.8, "The court may order the child(ren)
and/ or any party to submit to and fully participate in an evaluation by an
appropriate experts or experts. The order, which shall be substantially in the
form set forth in Rule 1915.18, may be made upon the court's own motion,
upon the motion of a party with reasonable notice to the person to be
examined, or by agreement of the parties."
Here, neither party filed a motion requesting the Court to appoint a
custody evaluator nor was there an agreement between the parties to appoint
an evaluator, and the Court found no basis to raise the issue sua sponte. With
no custody evaluator involved in the case, the Court was required to make a
custody determination based upon the evidence presented of record and the
Court's analysis of the best interests of the children with consideration of the
e See page 31 of the Notes of Testimony from January 6, 2017.
2016-09945-0052 Opinion, Page 14
statutory custody factors. Accordingly, this Court did not abuse its discretion
in ruling on custody without a custody evaluation.
Third, at Issue Number Fifteen (15) in his Statement of Matters
Complained of on Appeal, Father asserts that this Court abused its discretion
in interviewing the children outside the purview of counsel and asked the
children questions which may have showed favoritism and bias towards
Mother.
This Court interviewed the children outside the presence of counsel only
after counsel for both Mother and Father waived their presence on the record.
(N.T. 1/6/ 17 page 150). Furthermore, a careful review of the record will
demonstrate that this Court's questions were balanced and neutral, and void of
any evidence of favoritism and/or bias towards Mother.? As a result, Father's
assertion here fails. This Court did not abuse its discretion.
F. Bias Towards Mother
Twice, Father asserts in his Statement of Matters Complained of on
Appeal, at Issue Number Eight (8) and Seventeen ( 17), that this Court
demonstrated a bias towards Mother in various ways.
First, at Issue Number Eight (8) in his Statement of Matters Complained
of on Appeal, Father asserts that this Court abused its discretion in finding
that Father cannot attend to the daily physical, emotional, developmental,
educational and special needs of the children as a physician and surgeon while
showing a clear female bias towards Mother by describing Mother as the CEO
of the family in its Findings of Fact. The Court's used the phrase "CEO" to
characterize Mother's role and responsibility for managing the family's affairs
while Father was, based upon the evidence, managing his medical business.
9The children's interviews have be sealed by this Court and have been sent to the Superior
Court for review.
2016-09945-0052 Opinion, Page 15
The record is completely devoid of any favoritism displayed by the Court for
Mother or the female gender. Father's assertion, accordingly, should fail.
"One substantial factor in determining if a modification of a custody
order is in the child's best interest, although not the sole factor, is the role that
one parent has assumed as the primary caretaker of the child." Johns v. Cioci,
865 A.2d 931, 937 (Pa. Super. 2004)(internal citations omitted). Here, this
Court, based upon the evidence of record, found that Mother has been the
children's primary caretaker. This Court found that Mother is more likely to
attend to those needs because "she coordinates all their activities, their
required appointments, helps them stay organized and balance in the various
school work, extracurricular, social and medical commitments they have."IO
This Court found that the children are emotionally close to their Mother and
rely on her to maintain this sense of daily consistency.
However, this Court did not find that Father cannot attend to the daily
physical, emotional, developmental, educational, and special needs of the
children. In fact, in its Findings of Fact, at factor ten (10), this Court stated,
"Father is also an involved, loving, doting parent. He attends their activities,
participates in school programs and always makes time to engage with the
children."11 Additionally, as stated in this Court's Findings of Fact at factor
three (3), "Father makes the children a priority in his life."
Father's assertion of bias must be demonstrated by the evidence of
record. Here, the record is void of any evidence of bias. This Court's use of the
term CEO does not establish or demonstrate a bias towards Mother, or her
gender, as Father asserts. The term CEO simply describes Mother's role in the
household, which was credibly testified to by Mother, Father, and children.
Following this Court's use of the term, it listed Mother's household
io Id.11 Findings of Fact dated January 26, 2017.
2016-09945-0052 Opinion, Page 16
responsibilities, such as coordinating all their activities, assignments and
appointments.
Second, Father asserts, at Issue Number Seventeen (17) in his Statement
of Matters Complained of on Appeal, that this Court showed a bias towards
Mother and her counsel by conducting significant conferences in chambers and
allowing Mother's attorney to make continuous statements regarding Father's
alleged alcohol dependency and alleged infidelity which were unsupported by
any credible evidence, and to the contrary, were against the weight of the
evidence including two medical expert opinions and hair follicle testing. not
withstanding witness testimony.
This Court notes that both parties requested "off the record" conferences
in chambers. None of the statements made by either counsel during the off the
record conferences were made a part of the record or used by this Court in its
determination of what was in the best interest of the children. This Court's
award of custody was based solely on the evidence of record.
Father's claim that his alcohol dependency and infidelity were
unsupported by any credible evidence is unsubstantiated by the evidence of
record. At trial, both Father and Mother testified regarding incidents where
Father drank to excess in several public situations. The Court found that
Father minimized all the incidents where he drank to excess. He argued these
were isolated incidents that did not reflect a problem with alcohol. In addition,
Mother testified about other non-public incidents where Father drank to
excess.
Mother testified credibly to her observations of Father's history of binge
drinking and poor decision-making. Mother described Father's history of
drinking too much as a consistent cycle which typically began with a building
up period, a crisis event, an apology, a promise to refrain from alcohol
consumption, a period of time where Father in fact refrained from consumption
2016-09945-0052 Opinion, Page 17
and then the entire cycle repeating itself. One of the parties' daughters also
testified credibly to her exposure to Father's history of alcohol use during the
marriage and its impact on the family. This evidence was important to the
Court's analysis of the children's best interests.
As it pertains to Father's infidelity, Mother's counsel attempted to
question Father about the specifics of his infidelity. This Court ruled, however,
that the evidence was not relevant and denied its admission on the record.
Lastly, pertaining to this Court's bias towards Mother, the record is void
of any evidence of bias towards Mother. This Court's custody determination is
based solely upon the evidence of record. Accordingly, based upon the evidence
of record, this Court did not abuse its discretion.
G. Father's Alcohol Use
Father asserts, at Issue Number Nine (9) in his Statement of Matters
Complained of on Appeal that this Court abused its discretion by considering
alcohol as playing a part in the marriage and in the raising of the children.
Pursuant to 23 Pa.C.S.A. § 5328(a)(14), this Court is required to consider
the history of drug and/ or alcohol abuse of a party or member of a party's
household in determining the best interest of a child or children. In all custody
cases, alcohol abuse must be considered by the Court in determining what is
in the best interest of the children. As discussed above, the Court found
credible, compelling evidence of Father's alcohol abuse, Father's history of
binge drinking and poor decision-making as a result. The Court appropriately
considered this evidence in its review of the custody factors. Accordingly, based
upon the evidence of record, this Court did not abuse its discretion.
2016-09945-0052 Opinion, Page 18
V. Conclusion
Based on the foregoing reasons, this Court's Custody Order dated
January 25, 2017 should be AFFIRMED.
Copies of Opinion sent to:
Plaintiffs Attorney: Cheryl L. Young, Esq.
Defendant's Attorney: Andrew Smith, Esq.
Chambers
Court Administration - Family Division
Superior Court of Pennsylvania