D.W. v. T.M. ( 2022 )

J-A08004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
T.M. :
:
Appellant : No. 1390 WDA 2021
Appeal from the Order Entered November 1, 2021
In the Court of Common Pleas of Bedford County Civil Division at No(s):
704-2020
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: April 26, 2022
T.M. (Mother) appeals from the custody order, dated October 28, 2021,
and entered on November 1, 2021, directing that D.W. (Father) shall have
primary custody of the parties’ child, L.W. (Child), with Mother having partial
custody on three out of four weekends during the school year. During summer
vacation periods, Mother shall have primary custody of Child, while Father
shall have partial custody on various weekends.1 After review, we affirm.
In the Pa.R.A.P. 1925(a) opinion, dated December 16, 2021, the trial
court provided a brief overview of this matter, stating:
The [C]hild was born out of wedlock [i]n August [of] 2014. The
Father filed a Complaint for Custody and Petition for Special Relief
on August 20, 2020, asking the [c]ourt to continue the informal
agreement of the parties wherein the [C]hild would continue to
reside primarily with Father during the school year, attend the
Bedford Area School District and spend most weekends with
____________________________________________
1 The parties share legal custody of Child.
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[Mother]. Thereafter, [Mother] filed multiple Petitions for Special
Relief. Ultimately, [Mother] was seeking primary physical
custody. Whereas Father was seeking to retain primary physical
custody during the school year with one (1) weekend each month
and [Mother] would have physical custody [all] other weekend[s]
of each month, as well as a weekly rotation of custody during the
summer months. Custody hearings were held on August 11,
2021[,] and October 28, 2021[,] and this [c]ourt entered a
custody [o]rder on October 28, 2021. The instant appeal was
timely filed on November 23, 2021.
Trial Court Opinion (TCO), 12/16/2021, at 1-2 (unnumbered) (footnotes
omitted). The rest of the court’s opinion includes the list of Mother’s issues
and the court’s statement that it “placed its reasoning on the record following
the hearing held on October 28, 2021….” Id. at 3 (citing N.T., 10/28/2021,
at 57-65). Essentially, the notes of testimony contain the court’s review of
the custody factors listed at 23 Pa.C.S. § 5328(a)(1)-(16).
We now turn to the issues Mother sets forth in her brief.
1. Whether the trial court erred in determining the best interest of
the [C]hild would best be suited by residing with Father/Appellee,
based upon a totality of the circumstances as evidenced by a
review of the custody factors.
2. Whether the trial court erred by indicating that factor three,
concerning parental duties, favors the Father/Appellee only
because the Father/Appellee has had custody up until that time.
3. Whether the trial court erred by indicating that factor four favors
Father/Appellee because the [C]hild has consistently attended
school in Bedford Area as he has been residing in Bedford, PA.
4. Whether the trial court erred by indicating that factor nine favors
Father/Appellee because the [C]hild has already been residing
with Father/Appellee, and Father/Appellee can provide a much
more stable relationship due to the [C]hild already being located
there.
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5. Whether the trial court erred by indicating that factor ten favors
Father/Appellee due to Father/Appellee already having custody.
6. Whether the trial court erred by weighing the factors
inappropriately as it appears to give Father/Appellee on the
custody factors due to Father/Appellee having primary custody at
time of hearing [sic].
Mother’s brief at 4-5.
The scope and standard of review in custody matters is as follows:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-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.
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.
M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (quoting J.R.M. v.
J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted)).
“[W]hen making a custody award, ‘[t]he court shall delineate the
reasons for its decision on the record in open court or in a written opinion or
order.’” Id. at 335. The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S. § 5328(a), which provides as follows:
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(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, educational and
special needs of the child.
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(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. § 5328(a).
As noted above in her list of issues, Mother acknowledged that many of
the factors did not favor either party or were even. However, she contends
that the trial court erred in finding that factors (3), (4), (9) and (10) favored
Father. Specifically, with regard to these four factors, the court stated:
The third factor is the parental duties performed by each party on
behalf of the [C]hild. It seems to me that the [F]ather has been
the primary custodian for several years now, and has performed
parental duties on behalf of the [C]hild, and the [C]hild appears
to have a fairly consistent routine at the [F]ather’s house. He
appears to be thriving there. I would also note that the [M]other,
at least in the last few years[,] has consistently had custody of
the [C]hild on the weekends. And it would seem to me that[,]
during her periods of custody[,] she does certainly perform
parental duties on behalf of the child.
The fourth factor is the need for stability and continuity in the
[C]hild’s education, family life and community life. The testimony
has revealed that this [C]hild has consistently attended school in
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the Bedford School District and he appears to be doing quite well.
He is reportedly a very social child, makes friends easily and is
involved with some extra-curricular activities. The [M]other did
express concern as to the [C]hild missing school or being tardy on
several occasions during the school year last spring, but it would
seem to me as though that does not appear to be a current issue
this fall. And the [c]ourt also heard testimony that the [C]hild, as
I said, appears to be very social and friendly, and that he’s easily
made friends both here in Bedford County, as well as[] where his
[M]other lives in [Lemoyne].
. . .
The ninth factor is which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the [C]hild,
adequate for the [C]hild’s emotional needs. It seems pretty clear
to me that everybody involved in this case[,] or everybody
involved with this [C]hild[,] loves him dearly. I think that the
[F]ather, though, has demonstrated a bit more stability for the
[C]hild than the [M]other has in recent years. Prior to moving to
[Lemoyne] in, I believe, September of 2019[,] the [M]other
admittedly stated that she was not doing well, and at times wasn’t
consistently in the [C]hild’s life, at least during the summer prior
to her move. As I’ve previously indicated in those intervening
years at least [sic] September of 2019, Father has consistently
had primary custody and consistently met the [C]hild’s education
needs, his daily physical needs, his emotional needs, as well as
his medical needs. But again, I don’t want to minimize the
[M]other’s involvement. Clearly[,] she’s been involved with the
[C]hild. But I would just indicate it seems to me that the [F]ather
has been more stable in that regard.
And actually[,] that rationale I just provided also somewhat
addresses the tenth factor, which is which party is more likely to
attend to the daily, physical, emotional developmental,
educational and special needs of the [C]hild.
N.T., 10/28/2021, at 59-60, 61-62.
Now we turn to the issues raised by Mother in her brief, which she
acknowledges all concern the same argument. See Mother’s brief at 9.
Mother summarizes this argument as follows:
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The [l]ower [c]ourt erroneously gave Father preference on factors
three, four, nine and ten, thus awarding him primary custody on
the sole basis that the [C]hild had been residing with Father
previous to the hearing. The [l]ower [c]ourt found that Mother is
just as capable as providing for the [C]hild as Father, such as
performing parental duties, maintaining loving relationships, etc.,
however, Father was favored only because the [C]hild had been
residing with [him for] a period of time prior to the hearing. The
[c]ourt cannot provide this favoritism to a parent due to them
having more time with a child when the [c]ourt specifically finds
that Mother is equally capable of performing these duties herself.
For the [c]ourt to award primary custody to Father was a clear
abuse of [its] discretion; therefore, the [l]ower [c]ourt erred.
Id.
Underlying this argument is Mother’s contention that the trial court
“improperly gave too much credence to the existing custody of the [C]hild at
the time of the hearings.” Id. at 10. She also asserts that the trial court
“placed [an] inappropriate [amount of] weight [on] the fact that Father had
been the primary custodian for several years[] and, therefore, performed the
majority of the parental duties on behalf of the [C]hild, plus the [C]hild
appeared to have a fairly consistent routine while at the Father’s house.” Id.
at 11. Essentially, each of Mother’s arguments directed at each issue rests on
her position that the trial court “weighed too heavily in favor of [Father] only
due to him having custody of the minor [C]hild at the time of the hearing.”
Id. at 12. Mother also contends that her life is more stable than Father’s
because he is relying on his grandmother for financial assistance as he is not
presently employed. Additionally, Mother’s arguments center on her
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contention that many of the factors in section 5328(a) should have been found
to favor her, which is contrary to the trial court’s conclusions.
Based upon our review of the record, we conclude that the trial court
considered all relevant factors and that its findings are supported by the
record. Mother is primarily requesting that we reject the trial court’s findings
and credibility determinations and accept the findings that she proposes. In
other words, Mother is requesting that this Court make independent findings
rather than accept the trial court’s findings that are supported by competent
evidence in the record. We cannot do so. Rather, as we stated above,
[w]e 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.
J.R.M., 33 A.3d at 650. Moreover, we recognize that this must have been a
difficult decision for the trial court in that both parents love their Child and
wish to provide Child with a good life. As this Court has stated, “the test is
whether the trial court’s conclusions are unreasonable as shown by the
evidence of record.” E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting
A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010)). Because we do not
determine that the trial court’s conclusions are unreasonable in light of the
sustainable facts, we affirm the trial court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2022
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