A.W. v. L.G. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
L.G. :
:
Appellee : No. 443 MDA 2019
Appeal from the Order Entered January 25, 2019
In the Court of Common Pleas of Berks County
Civil Division at No(s): 18-3777
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 29, 2019
Appellant, A.W. (“Father”) appeals from the order entered in the Berks
County Court of Common Pleas, which denied his pro se complaint for custody,
styled as a petition for visitation with his minor son, I.G. (“Child”), while Father
is incarcerated. We affirm.
The trial court issued two opinions, dated January 24, 2019, and April
1, 2019, which set forth the relevant facts and procedural history of this case.1
Therefore, we have no need to restate them.
On appeal, Father raises the following issues for review:
DID THE TRIAL COURT ABUSE ITS DISCRETION OR
[OVERRIDE] THE LAW WHEN IT CONCLUDED THAT THE
UNPROVEN ALLEGATIONS OF PHYSICAL ABUSE WERE
FACTUAL EVIDENCE OF ABUSE BY [FATHER] TOWARDS
____________________________________________
1The trial court makes clear that Father’s notice of appeal was timely filed on
February 20, 2019. (See Trial Court Opinion, filed April 1, 2019, at 1 n.1.)
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[MOTHER]?
WHETHER IT IS AN ABUSE OF DISCRETION BY THE TRIAL
JUDGE BY HIS STATEMENT OF FACT THAT [FATHER]
CONTINOUSLY LIED ABOUT WHAT OCCURRED ON
SEPTEMBER 28, 2013 IN AN ATTEMPT TO PRESENT
[MOTHER] IN A NEGATIVE LIGHT?
DID THE TRIAL COURT ABUSE ITS DISCRETION, OR
[SHOW] BIAS [IN FAVOR OF] MOTHER OR [OVERRIDE] THE
LAW IN ITS REASONING AND CONCLUSION THAT [FATHER]
WAS UNREMORSEFUL AND COMPLETELY
UNREHABILITATED BECAUSE HIS TESTIMONY AT TRIAL
WAS CONTRARY TO HIS GUILTY PLEA AS [FATHER] IS NOW
EXERCISING HIS RIGHTS OF DUE PROCESS OF
CHALLENGING HIS CONVICTION ON THE GROUNDS OF
INEFFECTIVE ASSISTANCE OF COUNSEL?
DID THE COURT ABUSE ITS DISCRETION BY NOT FULLY
EXPLORING THE MERIT OF [FATHER’S] PETITION AND
VISITATION BASED ON ITS UNREASONABLE AND
UNSUBSTANTIATED CONCLUSION THAT [FATHER] IS
[UNREPENTANT AND] UNREHABILITATED?
(Father’s Brief at 1-2, and 9).
Our scope and standard of review of a custody order are as follows:
[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 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) (quoting R.M.G., Jr. v.
F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009)). “On issues of credibility and
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weight of the evidence, we defer to the findings of the trial judge who has had
the opportunity to observe the proceedings and demeanor of the witnesses.”
Id.
When deciding an award of custody, the court must conduct a thorough
analysis of the best interests of the child based on the factors set forth in the
Child Custody Act (“Act”). E.D. v. M.P., 33 A.3d 73 (Pa.Super. 2011). See
also A.D. v. M.A.B., 989 A.2d 32, 36 (Pa.Super. 2010) (stating: “With any
child custody case, the paramount concern is the best interests of the child.
This standard requires a case-by-case assessment of all the factors that may
legitimately affect the physical, intellectual, moral and spiritual well-being of
the child”).
“All of the factors listed in [S]ection 5328(a) 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 in original). “The court 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). “There is no required amount of
detail for the trial court’s explanation; all that is required is that the
enumerated factors are considered and that the custody decision is based on
those considerations.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013),
appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A court’s explanation of the
reasons for its decision, which adequately addresses the relevant custody
factors, complies with Section 5323(d). Id. Further,
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The parties cannot dictate the amount of weight the trial
court places on the 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.
R.M.G., Jr., supra (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super.
2002)). “Ultimately, the test is ‘whether the trial court’s conclusions are
unreasonable as shown by the evidence of record.’” Ketterer v. Seifert, 902
A.2d 533, 539 (Pa.Super. 2006) (quoting Dranko v. Dranko, 824 A.2d 1215,
1219 (Pa.Super. 2003)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable James M.
Bucci, we conclude Father’s issues merit no relief. The trial court opinions
comprehensively discuss and properly dispose of the questions presented.
(See Custody Order and Opinion, filed January 25, 2019, at 1-9) (analyzing
all custody factors, including eight additional factors regarding incarcerated
party who requests visitation, and concluding denial of Father’s petition for
visitation is in Child’s best interests) and (Trial Court Opinion, filed April 1,
2019, at 3-15) (incorporating court’s prior opinion and stating it considered
affidavit of probable cause in connection with Father’s attack on Mother on
February 3, 2013, to provide background for what led Father to attack Mother
with machete on September 28, 2013; even if court had not considered events
of February 3, 2013, or found those events had not occurred, court still found
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Mother’s testimony credible about Father’s attack on September 28, 2013;
Mother’s testimony was also consistent with Father’s guilty plea to aggravated
assault for events on September 28, 2013; Father showed no remorse for his
actions; court found Father incredible at custody hearing and found Mother
credible; any error in court’s consideration of affidavit of probable cause was
harmless; Father made only blanket assertions of violations of his due process
and equal protection rights; Father’s attempts to renounce his guilty plea, his
insistence that Mother was responsible for her own injuries, and Father’s
refusal to accept responsibility for what occurred on September 28, 2013,
sustain court’s denial of Father’s petition for visitation; court was deeply
disturbed by serious nature of Father’s crimes, which led to his incarceration,
and Father’s unwillingness to accept responsibility for his actions plus his lack
of rehabilitation; upon careful consideration of statutory custody factors and
additional factors concerning incarcerated party seeking visitation rights, court
concluded that any communication with Father at this time was not in Child’s
best interest). The record supports the court’s decision. Here, the court
thoughtfully and meticulously analyzed the testimony and the evidence in light
of all of the relevant statutory factors and rendered its decision in the best
interests of Child. We see no error in the methodology the court used to make
its decision. Accordingly, we affirm based on the trial court’s opinions.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2019
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