Bailey, C. v. Bailey, H. ( 2023 )

J-A10006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
CASSANDRA M. BAILEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HALLUM O. BAILEY :
:
Appellant : No. 2813 EDA 2022
Appeal from the Order Entered October 6, 2022
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): 0C1801104
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 27, 2023
Hallum O. Bailey (“Father”) appeals from the order granting the petition
to modify custody filed by Cassandra M. Bailey (“Mother”), and directing that
that Mother would have sole legal custody, for two years, regarding
educational decisions for their daughter C.B. (“Child”), born in May 2018.1
Father argues that the trial court erred in awarding sole legal custody
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* Former Justice specially assigned to the Superior Court.
1 Although this appeal involves a custody action, we will use the parties’ names
in the caption “as they appeared on the record of the trial court at the time
the appeal was taken.” Pa.R.A.P. 904(b)(1). Notably, “upon application of a
party and for cause shown, an appellate court may exercise its discretion to
use the initials of the parties in the caption based upon the sensitive nature
of the facts included in the case record and the best interest of the child.”
Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907(a). Neither party has applied to
this Court for the use of initials in the caption. We will, however, refer to the
minor involved in this custody dispute by her initials or as “Child” to protect
her identity.
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regarding educational decisions without a pending petition seeking such a
change; awarding sole legal custody for educational decisions without holding
a hearing on that issue, in violation of his due process rights; considering facts
outside the record; weighing certain evidence in rendering its decision; and
failing to analyze the custody factors at 23 Pa.C.S.A. § 5328(a). We affirm.
The parties have engaged in a protracted high-conflict custody litigation
over Child. See Trial Court Opinion, 12/27/22, at 1 n.1 (noting that between
“August 15, 2018, when the initial custody complaint was filed and October 6,
2022, when th[e trial] court rendered the decision under appeal[,] there have
been approximately 33 various filings related to custody.”). Briefly, the parties
were married in 2013 and Child was born in May 2018. Mother filed a
complaint in divorce in August 2018, and the parties were ultimately divorced
in September 2022. In October 2019, the trial court entered a custody order,
which provided the parties would have shared legal and physical custody.
In January 2021, Mother filed a notice of relocation to Chester County
from Philadelphia County, due to safety concerns. Notably, during this time
Child attended preschool at Olde City Day School in Philadelphia. The trial
court granted Mother permission to move if Child continued to attend school
in Philadelphia, Child continued to receive her health care in Philadelphia, and
the custody exchanges continued to take place in Philadelphia.
In December 2021, Mother filed a petition to modify custody, seeking to
enroll Child in a different daycare due to significant concerns with Olde City
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Day School, including ongoing Philadelphia Department of Human Services
(“DHS”) citations, increased staff turnover, and lack of academic
programming. The trial court held multiple hearings on the petition, wherein
the parties addressed, inter alia, Olde City Day School, the parties’ ability to
make educational decisions about Child; and the selection of a new school if
Olde City Day School was not suitable. On October 6, 2022, the trial court
entered an order, unenrolling Child from Olde City Day School immediately;
placing Child in a new preschool; granting the parties continued shared
physical custody and shared legal custody except that Mother would have sole
legal custody regarding education for the 2023-2024 and 2024-2025 school
years (kindergarten and 1st grade); and finding the location of Child’s future
school options would not be limited to Philadelphia County. Father filed this
timely appeal and a Pa.R.A.P. 1925(b) concise statement.
On appeal, Father raises the following questions for our review:
1. Did the trial court abuse its discretion and commit an error of
law in granting, sua sponte, Mother sole legal custody
regarding all educational issues involving the Child for a period
of two (2) years: (1) without a pending petition before the
court requesting that the Court modify legal custody to sole
legal custody regarding all educational issues involving the
Child; and (2) with no testimony from Mother, or request from
Mother on the record, for sole legal custody regarding all
educational issues involving the Child?
2. Did the trial court abuse its discretion and commit an error of
law in entering an order, sua sponte, giving Mother sole legal
custody regarding all educational issues involving the Child for
two (2) years without a hearing on legal custody in violation of
Father’s constitutional right to procedural due process?
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3. Did the trial court abuse its discretion and commit an error of
law by depriving Father of his constitutional right to procedural
due process by concluding and finding that “it is in the best
interest and permanent welfare of the child to expand the
educational horizons beyond those offered in Philadelphia
County” when Mother’s petition pending before the court
emphasized, in accordance with the July 20, 2021 order, and
consistent with Father’s position, that the selected school be in
Philadelphia County?
4. Did the trial court abuse its discretion and commit an error of
law in violating Father’s constitutional right to procedural due
process, by failing to analyze all 16 custody factors set forth in
23 Pa.C.S.A. § 5328(a) in entering its order giving sole legal
custody to Mother for all educational issues involving [Child]
for a period of two (2) years?
5. Did the trial court abuse its discretion and commit an error of
law by focusing on aspects of the case that have no relationship
to Father’s ability to make appropriate decisions for the Child?
6. Did the trial court abuse its discretion and commit an error of
law in granting, sua sponte, Mother sole legal custody
regarding all educational issues involving the Child for two (2)
years by considering facts that were not in the record and
making conclusions not supported by the record or the
testimony of the parties?
Appellant’s Brief at 5-6 (issues reordered).
Our standard of review is deferential:
We review a trial court’s determination in a custody case for
an abuse of discretion, and our scope of review is broad. Because
we cannot make independent factual determinations, we must
accept the findings of the trial court that are supported by the
evidence. We defer to the trial judge regarding credibility and the
weight of the evidence. The trial judge’s deductions or inferences
from its factual findings, however, do not bind this Court. We may
reject the trial court’s conclusions only if they involve an error of
law or are unreasonable in light of its factual findings.
C.A.J. v. D.S.M., 136 A.3d 504, 506 (Pa. Super. 2016) (citation omitted).
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“With any child custody case, the paramount concern is the best
interests of the child.” M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013)
(citation omitted). “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.” Id. (citation omitted).
As they are interrelated, we will address Father’s first and second claims
together.2 We begin by noting that Father’s arguments often broadly reference
“legal custody.” However, the trial court’s order focuses specifically on the
right to make education-related decisions for Child for two years. While this is
certainly a subset of the rights involved in legal custody, it is important to
highlight that in all other respects, the order appealed from did not alter the
status quo of shared legal custody.
Father contends that the trial court violated his due process rights by
granting Mother legal custody over education decisions without a petition,
testimony from Mother, or request by Mother on the record to this effect. See
Father’s Brief at 14, 18. Father argues he had no notice that any aspect of
legal custody of Child was at issue in this proceeding. See id. at 17, 18, 20.
____________________________________________
2 We note with disapproval that in his second claim, Father incorporates by
reference his argument from his first claim. See Father’s Brief at 19. Notably,
“incorporation by reference” is an “unacceptable manner of appellate
advocacy for the proper presentation of a claim for relief to our Court.”
Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011); accord
Franciscus v. Sevdik, 135 A.3d 1092, 1097 n.6 (Pa. Super. 2016).
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Father highlights that Mother requested Child be enrolled in a different
preschool and never sought legal custody over education decisions,
emphasizing that Mother did not request such a change in her proposed order.
See id. at 17. Father further asserts that legal custody was not addressed at
the hearing on Mother’s petition, and the trial court elicited no testimony from
the parties on legal custody. See id. at 17, 19-20. To support his argument,
Father relies on P.H.D. v. R.R.D., 56 A.3d 702, 707-08 (Pa. Super. 2012)
(vacating part of the contempt order that purported to relate to a custody
modification, because father had no notice that custody would be an issue at
the contempt hearing, which violated his due process rights). See Father’s
Brief at 16-17, 18, 19.
“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018)
(citation omitted). “In custody hearings, parents have at stake fundamental
rights: namely, the right to make decisions concerning the care, custody, and
control of their child.” Id. “Due process must be afforded to parents to
safeguard these constitutional rights.” Id. at 1161. The fundamental
components of due process are “[f]ormal notice and an opportunity to be
heard.” Id. (citation and emphasis omitted). “[P]rocedural due process
requires, at its core, adequate notice, opportunity to be heard, and the chance
to defend oneself before a fair and impartial tribunal having jurisdiction over
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the case.” Id. (citation omitted). “Due process is flexible and calls for such
procedural protections as the situation demands.” Id. (citation omitted).
“[G]enerally, the appropriate manner in which to request a modification
of a custody order is to file a petition for modification in compliance with
Pa.R.C.P. 1915.15[.]” C.A.J., 136 A.3d at 507. However, “this does not
prevent the trial court, under appropriate circumstances to alter a
custody/visitation Order when it is in the best interest of the child to do so.”
Id. (citation omitted). “[I]f notice of the proceeding adequately advises a
party that custody will be at issue, a court may entertain the request to
permanently modify a custody order after hearing in that proceeding.” Id.(citation omitted); see also Langendorfer v. Spearman, 797 A.2d 303, 309
(Pa. Super. 2002) (“Notice, in our adversarial process, ensures that each party
is provided adequate opportunity to prepare and thereafter properly advocate
its position, ultimately exposing all relevant factors from which the finder of
fact may make an informed judgment.” (citation omitted)).
Here, Mother filed a petition to modify custody, seeking to modify Child’s
preschool, noting it would be in Child’s best interests to pick a new school.
See Petition, 12/2/21, at 3-5. Father filed a response, requesting that the trial
court deny the petition to modify. See Answer, 1/21/22. The trial court then
scheduled hearings on this matter, specifying that a modification of custody
would be at issue. See, e.g., Trial Management Order, 6/14/22, at 1 (“A
protracted custody hearing is scheduled … on September 28, 2022…); Order,
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6/6/22, at 1 (“All parties are excused from appearing for the protracted
hearing …. Mother’s petition to modify … is hereby continued…”); Order,
4/25/22, at 1 (“Mother’s petition to modify … is hereby continued …”); Order,
3/24/22, at 1 (“Mother’s petition to modify custody .. is continued for further
testimony …”).
Further, the hearings centered on Mother’s petition to modify custody.
See N.T., 3/24/22, at 5 (wherein both parties acknowledge that the hearing
was strictly about Mother petition to modify custody); see also N.T., 9/28/22,
at 5. At the hearing, Father and Mother both testified as to Child’s educational
experiences at Olde City Day School and their respective conduct with regard
to Child’s education, including, inter alia, how the preschool was chosen, other
schools they are considering, Child’s experience at the school, and the fact
that Olde City Day School has been cited for multiple violations by DHS. See
generally N.T., 9/28/22, at 65-216; N.T., 3/24/22, at 13-60. Importantly,
Father testified that he provided options to Mother regarding finding a good
kindergarten and first grade for Child. See N.T. 9/28/22, at 135-36, 188.
Further, Father, through his counsel, also cross-examined Mother and
Mother’s witnesses, Kristina Clark, the mother of a student who used to attend
Olde City Day School, and Anita Preacher, the director of operations at Olde
City Day School.
As a preliminary matter, the P.H.D. Court found a due process violation
when a lower court modified a custody order although the only issue before it
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was a contempt petition. See P.H.D. 56 A.3d at 707-08. By contrast, here,
the parties knew that the hearings centered on Mother’s petition to modify
custody regarding educational decisions for Child. See S.W.D. v. S.A.R., 96
A.3d 396, 405 (Pa. Super. 2014) (noting that “the filing of a proper petition
also serves the important purpose of providing notice and an opportunity to
be heard to satisfy the requirements of due process attendant to custody
proceedings.”). In fact, Father does not challenge that he filed an answer to
the custody petition and the scheduling orders all specified that custody would
be at issue at the hearing. Importantly, the trial court afforded Father an
opportunity to be heard and to present his case regarding Child’s best interest
in choosing a school. See S.T., 192 A.3d at 1161 (stating due process requires
opportunity to be heard and chance to defend oneself in impartial tribunal
having jurisdiction over matter).
Trial courts have the power to fashion appropriate custody awards when
all parties are on notice. In fact, the Child Custody Act provides that trial courts
may award different types of custody, including a change in legal custody, so
long as they consider the factors set forth under 23 Pa.C.S.A. § 5328(a) in the
best interests of the child. See 23 Pa.C.S.A. § 5323(a); see also M.J.M., 63
A.3d at 334 (noting that the primary concern in any custody case is the best
interests of the child). Notably, legal custody is defined as the right to make
“decisions on behalf of the child, including, but not limited to, medical,
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religious and educational decisions.” See 23 Pa.C.S.A. § 5322(a) (emphasis
added).
Here, it was apparent the parties had significant differences of opinion
regarding Child’s education. The trial court recognized that, as a consequence,
only one party could have final decision authority on this issue at this time.
See Trial Court Opinion, 12/27/22, at 20 (“In the case sub judice[,] it is
abundantly clear that the parties were at an impasse on educational issues,
and it was also clear based upon the behavior of the parties and the overall
procedural posture of the case that [Child’s] best interest would be served by
one parent having the final say on educational issues for a period of two
years.”). Although Mother never explicitly requested a change to legal custody
in her petition in this case, the authority to decide education decisions for
Child was clearly the central issue being litigated.
Accordingly, Father’s reliance on P.H.D. is misplaced and our review of
the record confirms that the court did not deprive Father of due process during
the relevant proceedings because Father had proper notice that custody would
be at issue, and, as noted below, the trial court considered the Section
5328(a) factors. See C.A.J., 136 A.3d at 507 (stating that when “notice of
the proceeding adequately advises a party that custody will be at issue, a
court may entertain the request to permanently modify a custody order after
hearing in that proceeding.” (citation omitted, emphasis in original)).
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In his next claim, Father claims that the trial court violated his due
process rights by finding that it was in Child’s best interests to look for
educational opportunities outside those offered in Philadelphia County,
highlighting that matter was not before the court and he was denied the
opportunity to consider the merits of any schools outside Philadelphia County.
See Father’s Brief at 27-28. Father further emphasizes that the trial court’s
prior grant of Mother’s relocation petition explicitly stated that Child would
attend school in Philadelphia County. See id. at 27.
The trial court addressed Father’s claim as follows:
There is substantiated, credible and undisputed testimony in this
matter that [Child] is exceptionally gifted. Such an exceptionally
gifted child shall receive the benefit of school choice which will
serve to advance and reinforce her exceptional gifts by expanding
school choice beyond schools situated in Philadelphia County. The
court noted that the parties’ July [2]0, 2021 agreement limits the
educational opportunities of this exceptional child to Philadelphia
County, but was entered without prejudice to either part[y’s] legal
custody rights. The court finds that it is in the best interest and
permanent welfare of [Child] to expand the educational horizons
beyond those offered in Philadelphia County at this time.
Trial Court Opinion, 12/27/22, at 13 (capitalization omitted).
Here, because Mother filed a petition to modify the custodial order, the
trial court was vested with jurisdiction to modify the existing order as required
by Child’s best interests. See J.M. v. K.W., 164 A.3d 1260, 1268 (Pa. Super.
2017) (“[A]ll custody awards are temporary insofar as they are subject to
modification by an ensuing court order any time that it promotes the child’s
best interest. Thus, by force of circumstances, no award of child custody is
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permanent regardless of whether the order is styled as interim or final.”). As
noted above, Father was provided notice of the custody proceedings, that they
would focus on the issue of Child’s education, and he provided evidence at the
hearings on the petition to modify. Father specifically testified that Child was
“super smart” and could skip kindergarten. See N.T., 9/28/22, at 188-89.
Therefore, the trial court’s finding that it was in Child’s best interests to have
multiple options for education opportunities inside and outside of Philadelphia
County due to her intelligence was not in error and Father’s due process rights
were not violated. See J.W., 164 A.3d at 1268.
Additionally, Father contends that the trial court failed to analyze the 16
factors listed at Section 5328(a). See Father’s Brief at 20-21. Father argues
that although the trial court stated it considered the factors, it did not provide
reasons for each of the factors on the record. See id. at 21.
The Custody Act provides a non-exhaustive list of the 16 factors a court
is required to consider to determine the best interests of the child as follows:
§ 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.
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(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.
(14) The history of drug or alcohol abuse of a party or member of
a party’s household.
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(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).
“All of the best interest factors ... are required to be considered by the
trial court when entering a custody order.” D.Q. v. K.K., 241 A.3d 1112, 1118
(Pa. Super. 2020) (citation and brackets omitted). The trial court, as the finder
of fact, determines “which factors are most salient and critical in each
particular case.” M.J.M., 63 A.3d at 339 (citation omitted).
Additionally, in any custody action, the trial court must “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 factors are considered and that the custody
decision is based on those considerations.” D.Q., 241 A.3d at 1118 (citation
and quotation marks omitted). “A court’s explanation of reasons for its
decision, which adequately addresses the relevant factors, complies with
Section 5323(d).” Id. (citation omitted).
Here, the trial court stated that it “gave consideration to all of the
statutory factors[.]” Trial Court Opinion, 12/27/22, at 19; see also Order,
10/6/22, at 7. However, the trial court found that factors 3, 4, 10, 11, 13, and
16 were critical in reaching its decision about Child’s education. See Trial Court
Opinion, 12/27/22; Order, 10/6/22, at 1-7; see also M.J.M., 63 A.3d at 339.
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Contrary to Father’s argument, the trial court analyzed and weighed each of
the critical factors regarding Mother’s modification petition and found that it
was in Child’s best interests to grant sole legal authority over education
decisions for a two-year period to Mother. See Trial Court Opinion, 12/27/22,
at 20 (noting that the parties were at an impasse on educational issues, and
based on the parties’ behavior, Child’s best interest would be served by Mother
having the final say on educational issues for a two-year period); see also
B.S.G. v. D.M.C., 255 A.3d 528, 534 (Pa. Super. 2021) (concluding the trial
court properly granted Mother final decisions on schooling where the parents
had reached an impasse and the best interest of the child required choices be
made expeditiously than through repeated filings with the courts). As the trial
court considered the Section 5328(a) factors and explained the reasons for its
ruling, which met the requirements of Section 5323(d), see M.J.M., 63 A.3d
at 339, Father’s argument does not provide a basis for finding that the trial
court abused its discretion.
Next, Father argues that the trial court abused its discretion by focusing
on aspects of the case that have no relationship to his ability to make
appropriate decisions for Child. See Father’s Brief at 22. According to Father,
the trial court preferred Mother’s demeanor to his use of expressive terms
during testimony. See id. at 23. Father asserts that the trial court improperly
highlighted that Father characterized Mother’s behavior as psychological and
in misogynistic terms, and he used the term “fluffernutter” in rendering its
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decision. See id. at 22. Father concludes that the trial court abused its
discretion in utilizing these statements as justification to take away his legal
custodial rights. See id. at 23.
Here, Father failed to establish either that the trial court used his
expressive terms as reason to grant Mother legal custody over Child’s
education decisions for a two-year period or that the court fashioned a
presumption in Mother’s favor based upon her demeanor. The record
demonstrates that the trial court weighed the testimony from Mother and
Father, as well as the best interests of Child and her education.
While the trial court noted Father and Mother credibly testified that they
desired what was best for Child, see Order, 10/6/22, at 6, it also found that
Father “was evasive in his answers to many questions[.]” Id. at 3
(capitalization omitted). The trial court further emphasized the parties are
engaged in a high conflict custody litigation and have “two diametrically
opposed views of the facts and circumstances surrounding the upbringing and
education of [Child]. The parties have alternate views and characterizations
of virtually everything that happens and has happened.” Id. at 6
(capitalization omitted); see also id. (noting it was imperative for the court
to decide due to the parties’ conflict and their ”divergent views of reality will
affect [Child] in the future as well as [Child] believing that since her parents
hold two diametrically opposed views on everything, one must be right and
one must be wrong.” (capitalization omitted)).
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In essence, Father is asking us to both reject the trial court’s findings
and credibility determinations in favor of the factual findings and credibility
determinations that he proposes and reweigh the evidence. We decline his
invitation to do so, because we cannot reweigh the evidence and “[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.” M.J.M., 63 A.3d at 337 (citation omitted). Therefore,
Father’s claim is without merit.
In his final claim, Father contends that the trial court considered facts
that were not in the record in rendering its decision. See Father’s Brief at 24.
Father highlights that the trial court repeatedly referenced a disagreement
about bunny slippers as evidence of a breakdown in cooperation between the
parties; however, Father argues that no such dispute existed because the
parties agreed that the slippers were for Child at preschool. See id. at 24-25.
Additionally, Father claims the trial court mischaracterized his testimony
regarding Child’s male teacher and ignored his position on the issue that
focused on diversity and representation. See id. at 25. Father also asserts
that the trial court speculated that Child may develop anxiety or panic issues
due to the custody litigation and did not hear any testimony about potential
kindergartens outside Philadelphia County. See id. at 26-27. Father further
maintains that the trial court erred in finding Mother, who had previously been
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found in contempt on two occasions, to be compliant with the court’s new
custody order. See id. at 26.
As a preliminary matter, Mother acknowledges the trial court mistakenly
found that the parties were in conflict about the bunny slippers. See Mother’s
Brief at 59. Mother argues the trial court confused the bunny slippers with an
incident regarding whether Child should read Mother’s or Father’s version of a
book at preschool to demonstrate the high level of conflict between the
parties. See id. at 58-59.
Upon our review of the record, we agree that the parties did not dispute
the use of slippers at preschool. However, the trial court cites other evidence
that establishes the parties’ conflict, including Child having to do two of
everything at school, including projects, and having two Halloween costumes,
Father’s testimony characterizing Mother as hysterical and her behavior as
histrionic, and his claim that Mother’s claims regarding Olde City Day School
were fabricated. See Order, 10/6/22, at 2-4; accord Trial Court Opinion,
12/27/22, at 4. Moreover, the record confirms the trial court’s finding that the
parties have divergent views on everything that has happened and how best
to raise and educate Child. See Order, 10/6/22, at 6. Father does not
challenge the fact that the parties are in conflict regarding custody or Child’s
education. Therefore, we conclude that the trial court’s mistaken inclusion of
the slippers in the list of disputes between the parties does not establish error.
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Next, regarding Father’s claims that the trial court gave improper weight
to his statement about Child’s male teacher at Olde City and Mother’s prior
contempt orders, we reiterate that we must defer to the fact-finder for issues
concerning credibility and weight of the evidence. See M.J.M., 63 A.3d at 337.
Father again appears to be requesting this Court to make new findings or
reweigh the evidence. We decline to do so. See C.R.F. v. S.E.F., 45 A.3d 441,
443 (Pa. Super. 2012) (noting this Court 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.” (citation omitted)).
Here, the trial court weighed Father’s evidence regarding Olde City Day
School. See Order, 10/6/22, at 4-5, 6. Further, the trial court did not give
much weight to the prior contempt citations, noting that Mother was found in
contempt on two occasions in the divorce action but neither party had been
found in contempt on custody matters. See id. at 5. The trial court’s
conclusions, in light of its sustainable findings on each of the custody best-
interest factors, are not unreasonable, nor did the trial court commit an error
of law. See S.T., 192 A.3d at 1160 (stating the ultimate “test is whether the
trial court’s conclusions are unreasonable as shown by the evidence of record.”
(citation omitted)).
Moreover, the trial court’s statement that Child may develop anxiety or
panic was made in the context of the parties’ conflict in resolving any issue:
The file in this matter already fills one banker storage box. If the
current conduct continues, [] Child may develop anxiety, panic,
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and reality issues. The [trial] court cannot help but think that the
parents’ divergent views of reality will affect [] Child in the future
as well as [] Child believing that since her parents hold two
diametrically opposed views on everything, one must be right and
one must be wrong. This will lead to confusion as to which parent
to listen to, which parent to believe[,] and which parent has her
best interest at heart. … The substantial evidence shows that
Mother and Father do not work together well. … The parties are
able to agree on very little, including the method upon which they
will rely in order to achieve their mutual goal of providing what is
educationally best for [] Child now.
Order, 10/6/22, at 6 (capitalization omitted). The trial court was again merely
highlighting the parties’ conflict and the affect it could have on Child. We find
no abuse of discretion in this regard.
Finally, the trial court’s finding that Child could be placed in a school
outside Philadelphia County is not an abuse of discretion. The trial court noted
the credible evidence establishing that Child is “exceptionally gifted,” and that
such a gifted child should “receive the benefit of school choice which will serve
to advance and reinforce her exceptional gifts.” Order, 10/6/22, at 8
(capitalization omitted). The trial court’s conclusion was merely serving the
best interests of Child and Father’s claim to the contrary does not establish an
abuse of discretion. See M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 2017)
(noting that the best interests of a child “considers all factors that legitimately
have an effect upon the child’s physical, intellectual, moral, and spiritual well-
being.” (citation omitted)).
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In light of the foregoing, we conclude that the trial court did not abuse
its discretion in awarding Mother legal custody over Child’s educational
decisions for a two-year period.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2023
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