J-S40030-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

J.V.,                                      : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellant              :
                                           :
             v.                            :
                                           :
R.J.,                                      :
                                           :
                    Appellee               : No. 342 WDA 2015

                  Appeal from the Order dated January 26, 2015,
                      Court of Common Pleas, Blair County,
                        Civil Division at No. 2010 GN 4027

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED JUNE 26, 2015

        Appellant, J.V. (“Mother”), appeals from the trial court’s order dated

on January 26, 2015, modifying a prior child custody order with Appellee,

R.J. (“Father”), regarding the custody of their minor child (“Child”), born

April 15, 2010. For the reasons that follow, we affirm the trial court’s order.

        In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure, the trial court provided the following brief

description of the nature of the dispute here as follows:

             The parties to this custody action have one minor
             child, [G.J.], born April 15, 2010. The parties were
             not married during their relationship. They have
             been sharing legal and physical custody of the child
             under an agreement they reached which was
             memorialized as an Order on March 11, 2013. This
             Order had the child with the Father every Sunday at
             5 PM through Tuesday at 4 PM, every Wednesday at
             4 PM through Thursday at 4 PM, every Friday at
             12:00 noon through 4 PM and every other weekend.



*Retired Senior Judge assigned to the Superior Court.
J-S40030-15


           This arrangement resulted in many exchanges of the
           child, which both parties agree is stressful and not in
           the child’s best interest. Mother requests a new
           schedule where the child would live solely with her
           during the school week and have every other
           weekend and extended time in the summer with the
           Father; Father proposes that the parties equally
           share physical custody on the weekdays and
           alternate physical custody every other weekend.

Trial Court Opinion, 3/19/2015, at 1-2.

     After mediation failed to result in an amicable agreement, the trial

court conducted an evidentiary hearing on January 22, 2015.          On January

26, 2015, the trial court issued an order pursuant to which during week one,

Father has custody from Monday morning through Wednesday morning, and

Saturday morning through Monday morning, with Mother having custody

from Wednesday morning through Saturday morning.           Trial Court Order,

1/26/2015, ¶ 2A. During week two, the schedule is reversed, with Mother

having custody from Monday morning through Wednesday morning and

Saturday morning through Monday morning, and Father having custody from

Wednesday morning through Saturday morning.          Id.   The parents have

alternating custody on some holidays (Thanksgiving, Christmas, Easter,

Fourth of July), and follow the regular schedule on others (New Year’s Day,

Memorial Day, Labor Day). Id. ¶ 2B. The trial court’s order further directs

each parent to keep the other informed of the child’s health, progress in

school, school activities, and general welfare, and to consult the other

regarding major decisions affecting the child. Id. ¶ 11. Both parents are



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entitled to receive information about the child directly from schools and

health care providers, and neither party may engage in any behavior that

presents a negative or hostile view of the other. Id. ¶ 12-13.

     On appeal, Mother contends that the trial court “essentially ruled in

favor of the Appellee/Father,” and raises the following nine issues for our

consideration and determination.

     1.    Whether the [trial court] erred in not giving considerable weight
           to the ABC Pre-School Director, Lydia E. Kenepp’s testimony
           regarding [Father’s] nondisclosure of Mother’s custody rights.

     2.    Whether the [trial court] erred in not giving considerable weight
           relative to Lydia E. Kenepp’s testimony regarding Father’s
           intentional representations that Mother is not to be provided
           information.

     3.    Whether the [trial court] erred in not considering the Father’s
           violent history, including threat of suicide and abuse of Mother,
           resulting in multiple Protection from Abuse [o]rders.

     4.    Whether the [trial court] erred in determining that the child’s
           stability and continuity in the child’s education would be served
           with a shared custody order.

     5.    Whether the [trial court] erred in not considering the Father’s
           egregious accusations that Mother’s brother sexually assaulted
           the child resulting in their son having to be examined by medical
           [p]rofessionals.

     6.    Whether the [trial court] erred in not considering the Paternal
           Grandmother’s testimony, which cannot be reconciled with Lydia
           E. Kenepp’s testimony.

     7.    Whether the [trial court] erred in not considering Father’s and
           Paternal Grandmother’s actions in attempting to intentionally
           keep Mother from receiving information from the child’s Pre-
           School.




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      8.    Whether the [trial court] failed to take into consideration the
            level of conflict between the parties in awarding a shared
            custody arrangement.

      9.    Whether the [trial court] erred in ordering an equal shared
            custody arrangement when in evaluating the custody factors a
            primary residential custody period in Mother would best serve
            the child’s interests.

Mother’s Brief at 3-5.1

      We review a trial court's determination in a custody case for an abuse

of discretion. M.P. v. M.P., 54 A.3d 950, 953 (Pa. Super. 2012). We must

accept the factual findings of the trial court if they are supported by

evidence   of   record.    Id.    We    do   not   make   independent    factual

determinations and defer on credibility decisions to the trial judge, who had

the opportunity to observe the proceedings and demeanor of the witnesses.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009). We likewise

defer to the trial court regarding the weight of the evidence, and on appeal


1
   In his appellate brief, Father requests dismissal of this appeal because
Mother failed to timely file a designation of the contents of the reproduced
record within 23 days as required by Rule 2154 of the Pennsylvania Rules of
Appellate Procedure. While Rule 2188 does provide that an appellee may
move for dismissal if an appellant fails to timely file a Rule 2154 designation,
it does not indicate what considerations are relevant in making such a
determination. As a result, this Court has concluded that the decision is
within our discretion, and that a finding of prejudice to the appellee is
important in this regard. Reliance Insurance Co. v. IRPC, Inc., 904 A.2d
912, 915 (Pa. Super. 2006).        Father has not identified any prejudice
resulting from Mother’s untimely filing, and in fact acknowledges that
dismissal may not be appropriate because Mother did file a complete
transcript of the January 22, 2015 evidentiary hearing. Father’s Brief at 8.
In the absence of any prejudice to Father or any impediment to effective
judicial review by this Court’s, we decline to grant Father’s request for
dismissal.


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the parties cannot dictate the amount of weight the trial court placed on the

evidence it received. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.

2006). The trial judge's deductions or inferences from its factual findings do

not bind this Court, but we may reject them only if they involve an error of

law or are unreasonable in light of its factual findings. See, e.g., J.R.M. v.

J.E.A., 33 A.3d 647 (Pa. Super. 2011); Hanson v. Hanson, 878 A.2d 127,

129 (Pa. Super. 2005); Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super.

2005).

      In custody determinations, the best interest of the child is paramount.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011).         To determine the

child's best interest, the trial court must consider all of the factors set forth

in section 5328(a) of the Child Custody Act, which provides as follows:

      (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).



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          (3)   The parental duties performed by each party
                on behalf of the child.

          (4)   The need for stability and continuity in the
                child's education, family life and community
                life.

          (5)   The availability of extended family.

          (6)   The child's sibling relationships.

          (7)   The well-reasoned preference of the child,
                based on the child's maturity and judgment.

          (8)   The attempts of a parent to turn the child
                against the other parent, except in cases of
                domestic violence where reasonable safety
                measures are necessary to protect the child
                from harm.

          (9)   Which party is more likely to maintain a loving,
                stable, consistent and nurturing relationship
                with the child adequate for the child's
                emotional needs.

          (10) Which party is more likely to attend to the
               daily physical, emotional, developmental,
               educational and special needs of the child.

          (11) The proximity of the residences of the parties.

          (12) Each party's availability to care for the child or
               ability  to   make      appropriate     child-care
               arrangements.

          (13) The level of conflict between the parties and
               the willingness and ability of the parties to
               cooperate with one another. A party's effort to
               protect a child from abuse by another party is
               not evidence of unwillingness or inability to
               cooperate with that party.




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            (14) The history of drug or alcohol abuse of a party
                 or member of a party's household.

            (15) The mental and physical condition of a party or
                 member of a party's household.

            (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

      In a written opinion filed contemporaneously with its January 26, 2015

custody order (and repeated in its Rule 1925(a) opinion), the trial court set

forth its analysis of the section 5328(a) factors.2   Based upon our review,

the certified record amply supports the trial court’s findings of facts with

respect to each factor.

      Turning then to the specific issues raised on appeal, in her first,

second, sixth, and seventh issues, Mother contends that the trial court did

not place sufficient weight on the testimony of the director of Child’s pre-

school, Lydia E. Kenepp (“Kenepp”).         Mother argues that Kenepp, an

“independent witness with no agenda,” testified that Father and Paternal

Grandmother “did everything possible to prevent [M]other from being


2
   The trial court did not specifically address factor 2.1, added by legislative
amendment effective January 1, 2014. In its written opinion, however, the
trial court considered and discussed the sole issue of child abuse in this case
(the alleged touching of Child by Mother’s brother), and found that it had
been professionally evaluated and determined to be without any merit. Trial
Court Opinion, 3/19/2015, at 10. Moreover, the trial court concluded (and
the parties do not dispute) that “[t]here is no physical abuse or sexual abuse
of the child alleged against either parent in this case.” Id. at 3. Finally,
there is also no evidence of record that Child has ever been the subject of
proceedings pursuant to the Juvenile Act, 42 Pa.C.S.A. §§ 6301 et seq.
(juvenile protective services).


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involved in and informed regarding [Child’s] pre-school.” Mother’s Brief at

9. Mother thus posits that this behavior “proves Father cannot be trusted to

encourage contact between [Child] and [M]other.” Id.

     The trial court understood Kenepp’s testimony somewhat differently.

The trial court determined that while Father “acted at one point in a manner

that gave the pre[-]school the mistaken impression that Mother was not

involved in the child’s life,” he never lied to Kenepp.   Trial Court Opinion,

3/19/2015, at 8-9. The trial court noted that Kenepp testified only that she

had the impression that Father had sole custody, and that Father never

actually told her this.3 Id.; N.T., 1/22/2015, at 147 (“he did not lie”). The

pre-school’s records had Mother listed as an emergency contact for the Child

(albeit third in line behind Father and Paternal Grandmother), and Father

had advised Kenepp that Child could be released into Mother’s care. N.T.,

1/22/2015, at 146.    Mother’s attendance at the Christmas program was

evidence that some pre-school related information had been shared with

Mother. Trial Court Opinion, 3/19/2015, at 9.



3
   Kenepp testified that on at least one occasion, Paternal Grandmother
advised her that Mother had no custody rights. N.T., 1/22/2015, at 146
(“she has no rights”).      Paternal Grandmother denied this contention,
testifying that she never said this and instead was present when Father
advised Kenepp that Mother and Father had joint custody. Id. at 85, 90-91.
The trial court concluded that this conflicting testimony was likely more of a
“miscommunication rather than deliberate falsehoods.” Trial Court Opinion,
3/19/2015, at 11. The trial court indicated that it considered Paternal
Grandmother’s testimony, but gave it less weight than it did to Mother’s and
Father’s testimony. Trial Court Opinion, 3/19/2015, at 11.


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     As the trial court correctly asserts, section 5328(a) requires only that

each of the factors be considered, and that (except with respect to safety)

the weight to be accorded to each factor is for the trial court to determine.

Id. at 9; Ketterer, 902 A.2d at 539.        The trial court clearly considered

Kenepp’s testimony, but decided “it did not outweigh the Mother[‘s] and

Father’s testimony” regarding the Child’s education.     Trial Court Opinion,

3/19/2015, at 10. As a result, we find no abuse of discretion.

     For her third issue on appeal, Mother contends that the trial court did

not consider Father’s violent history.    Again, however, the record reflects

that the trial court did consider this evidence, but did not place as much

weight on it as Mother would have liked. The trial court noted that Mother

had obtained a temporary PFA against Father after she claimed that he said

that he would shoot her in the head. Id. at 3. Father testified that he said

he would shoot anyone who sexually abused his child. Id. The trial court

determined that Father’s testimony on this point was more credible. Id. at

9. The trial court also indicated that the PFA had been dropped after both

parties agreed to a “no contact” provision between them in the custody

order, id. at 3, and that Mother would likely not have agreed to do so if she

feared for her safety or that of Child.    Id. at 9 (“The parties have been

sharing the child with no new allegation of abuse.”).     Finding that Father

posed no safety risk to Child, the trial court did not accord this factor any




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special weight, and we cannot conclude that this decision constituted an

abuse of discretion.

      For her fifth issue on appeal, Mother argues that the trial court erred in

not considering Father’s “egregious allegations” that Mother’s brother had

sexually assaulted Child.       This trial court did consider this evidence,

indicating that the “credible evidence was that [Child] told Father and his

fiancée that mother’s brother touched him.” Id. at 10. Father decided to

take action in response because Mother’s brother is a convicted sex offender

(having pled guilty to statutory assault on a girl). Id.; N.T., 1/22/2015, at

30-31, 102. A sexual abuse evaluation resulted in no finding that the uncle

had in fact acted inappropriately.      Id. at 103.      Contrary to Mother’s

allegations that Father fabricated these allegations to cause her distress and

gain an upper hand in the custody battle, the trial court instead determined

that Father had not done so, and that instead Child was an “intelligent and

strong willed child” who had issues with controlling his behavior and made

up this story to manipulate the parties. Id. at 5. The trial court considered

this evidence but chose not to accord it any significant weight in its final

custody determination.

      For her eighth issue on appeal, Mother contends that the trial court

failed to consider the level of conflict between the parties when ordering

shared custody.        The trial court indicates that the new custody order

requires fewer exchanges than did its predecessor, and that “[t]his



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arrangement is not ideal but has been working for them.” Id. at 12. As a

result of the “no contact” agreement, the Paternal Grandmother serves as

the third party to facilitate custody exchanges.     Id.   As the trial court

correctly noted, this Court has stated that only minimal cooperation is

necessary for a shared custody arrangement.

            This feature does not translate into a requirement
            that the parents have an amicable relationship.
            Although such a positive relationship is preferable, a
            successful joint custody arrangement requires only
            that the parents be able to isolate their personal
            conflicts from their roles as parents and that the
            children be spared whatever resentments and rancor
            the parents may harbor.

In re: Wesley, J.K., 445 A.2d 1243, 1249 (Pa. Super. 1982) (quoting Beck

v. Beck, 86 N.J. 480, 498, 432 A.2d 63, 71-72 (1981)). Accordingly, the

trial court determined that there was sufficient cooperation between the

parents to facilitate the current custody arrangement, and we find no abuse

of discretion in this regard.

      Finally, for her fourth and ninth issues on appeal, Mother contends that

the trial court erred in its consideration of the section 5328(a) factors when

ordering a shared custody arrangement. Mother argues that Father’s actions

display “sabotage and ill-will” on his part, but as discussed hereinabove, the

trial court’s review of the relevant evidence resulted in far less severe

characterizations of Father’s behavior.   Mother also claims that because of

the lack of cooperation between the parents, shared custody will result in




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Child living “two different lives.” Mother’s Brief at 8. Because Child will live

separately     with    Mother    and   Father     under     any   reasonable   custody

arrangement, however, Child living “two different lives” is inevitable, and

Mother’s proposed resolution (with Child living with Father on alternate

weekends       and    during    the   summer      months)    would   not   rectify   this

eventuality.

         In sum, we find no abuse of discretion in the trial court’s analysis of

the section 5328(a) factors or its decision to implement a new (and less

complicated) shared custody arrangement.                    The trial court properly

considered all of the relevant factors, made the necessary and appropriate

credibility and weight determinations, and concluded that shared custody,

rather than primary residential custody with Mother, was in Child’s best

interest. As a result, this Court cannot and will not disturb the trial court’s

decision.

         In his appellate brief, Father indicates that the parties were in

agreement that a new custody order should include a provision to permit for

summer vacations, but that the trial court failed to include it in the January

26, 2015 custody order. As a result, Father requests that this Court enter

an order providing that each party shall have seven consecutive days of

custody during the summer months upon proper written notice to the other

party.     Father’s Brief at 11-12.     It is not this Court’s typical function to

modify the custody orders of trial courts in this manner, however, and we



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decline to do so here.    Instead, the parties may seek a change in the

January 26, 2015 custody order from the trial court in accordance with

applicable modification procedures.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/26/2015




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