J-S09018-18

                                   2018 PA Super 100

    P.J.P.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    M.M.                                       :   No. 1586 MDA 2017

              Appeal from the Order Entered September 19, 2017
    In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                                13351 of 2013

BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

OPINION BY McLAUGHLIN, J.:                                FILED APRIL 27, 2018

        P.J.P. (“Father”) appeals pro se from the order denying his Petition for

Modification of a Custody Order with respect to his minor son, M.P. (“Child”).

We conclude that the trial court did not abuse its discretion in awarding

primary physical custody to M.M. (“Mother”), and did not err in not considering

the factors set forth in Wiseman v. Wall, 718 A.2d 844 (Pa.Super. 1998),

because the Wiseman factors have been superseded by statute. We therefore

affirm.

        Father and Mother married in March 2013 and separated in August

2013; Child was born in November 2013. It is not clear from the record if

Father and Mother obtained a divorce.1 They exercise custody of Child

pursuant to an April 29, 2016 order, which awarded primary physical custody

____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1During the custody hearing Father testified, “I think I’m divorced. I’m not
100 percent sure about that.” N.T., 8/30/17, at 103.
J-S09018-18



to Mother and partial physical custody to Father. Pursuant to the order, Father

had partial custody on an alternating basis: Every other weekend, from Friday

at 6 p.m. until Sunday at 6:00 p.m.; alternating Tuesdays from 8:00 a.m.

until Wednesday 6:00 p.m.; and alternating Tuesdays from 8:00 a.m. until

Thursday at 8:00 a.m. The court also awarded both parents shared legal

custody.

       On January 19, 2017, Father filed a Petition for Modification of a Custody

Order, in which he requested shared physical custody of Child. The trial court

conducted a two-day custody hearing2 during which the parties each testified

concerning their efforts to promote Child’s relationship with the other party.

Mother testified that she sends Father numerous pictures and videos of Child

when he is in her custody, and encourages Child to call Father on the phone.

N.T., 8/29/17-8/30/17, at 247-50, 288. Mother further testified that Father

only sent her pictures of Child on “Christmas two years ago” and on the first

day of the custody hearing. Id. at 247, 253. Mother testified that she receives

no communication from Child when he is in Father’s care. Id. at 248, 262.

Father testified that Child did not want to call Mother during his periods of

custody, and that he did not send pictures of Child because the camera on his

phone broke. Id. at 171-72, 185-86.

       The parties also testified as to their cooperation with the other party.

Mother testified that Father engages in “mental terrorism” by belittling and
____________________________________________


2Father had counsel at the time he filed his petition for modification, and
during the custody hearing.

                                           -2-
J-S09018-18



insulting her. Id. at 257-58. Mother recalled several instances during which

Father belittled her in Child’s presence, by yelling at her and telling Child that

Mother is “mean.” Id. at 254. In addition, Mother testified that Father told her

that when Child was older, Father would have Child read the court documents

on Google to make sure Child does not make the same mistake Father did by

marrying a “toxic” person. Id. at 257. Although Mother admitted to insulting

Father, she insisted that she has never done so in front of Child. Id. at 253-

54, 266.

      Father admitted that he called Mother “mean” in the presence of Child,

but claimed it was because Mother was criticizing his job. Id. at 175-76. He

further testified that he felt like he was being attacked when he spoke with

Mother. Id. at 175. Father testified that he mentioned Google Scholar because

he was concerned Child would be able to see the court documents when he is

older. Id. at 198. Father wanted to remind Mother that everything is available

on the Internet and to suggest that it would be better if they settled their

differences. Id.

      Mother also testified that she purchased gifts for Father from Child for

Father’s birthday, Father’s Day, and Christmas. Id. at 250. Further, Mother

purchased tickets for a Monster Truck show for Father and Child, which was

during Mother’s period of custody and Mother has invited Father to the park

during her period of custody. Id. at 158-59, 249-50. Father testified that he

had Child make Mother a necklace and a little handprint. Id. at 174.




                                      -3-
J-S09018-18



      The parties also testified about getting Child ready for preschool after

returning from Father’s custody. Mother stated that Father used to prepare

Child for preschool, so that Mother could drop him off at school. Id. at 242-

244. In approximately March 2017, Father refused to get Child ready. Instead,

he would drop Child off at Mother’s house while Child was in his pajamas. Id.

Mother would not have sufficient time to prepare, and, therefore, Child would

get to school late. Id. Father testified that this was because Mother had

“unilaterally” changed the procedure for exchanging custody from one where

Mother would pick up Child at Father’s house, to one where Father would drop

off Child. Id. at 144. According to Father, Mother texted Father one day two

hours before the scheduled exchange that she was unable to pick up Child

that day. Id. Father testified that she also said she wanted him to have Child

ready for school when he returned Child to Mother’s house. Id. at 145.

      The parties both also testified about their experiences with co-parenting

counseling. Mother testified that she attempted to improve her relationship

with Father by suggesting that they attend co-parenting counseling. Id. at

245. Although Father attended the counseling, Mother said he refused to

participate meaningfully.

         [Father] said I don’t know why we’re here. I’m filing for
         50/50 custody next week and we’ll continue to parallel
         parent. And then he checked his phone the whole time we
         were there as the counselor was talking to us about our
         issues and trying to get us set up with a counselor to move
         us forward.




                                     -4-
J-S09018-18



Id. at 246. Mother testified that after several unproductive sessions, the

counselor said they were “not going anywhere with this” and they were “too

high conflict.” Id. In contrast to Mother’s testimony, Father testified that they

attended two or three sessions and that he wanted to continue the sessions.

Id. at 168-70.

      The parties also offered testimony about Child’s interactions with his

extended family. Paternal Grandparents live in Virginia and visit with Father

once per month. Id. at 80-81, 87. Child has visited Paternal Grandparents’

home twice since birth. Id. at 110. In contrast, Mother’s sister and Maternal

Grandparents live within a few blocks of Mother. Child spends time with his

maternal cousins on a weekly basis, and spends holidays, birthday parties,

and vacations with his cousins. Id. at 206-207.

      On September 19, 2017, the trial court denied Father’s Petition for

Modification. Father filed a pro se Motion for Reconsideration of Order on

October 12, 2017, which the court denied that same day. Father filed a timely

pro se Notice of Appeal on October 12, 2017.

      Father now raises the following issues for our review.

         1) Should this Honorable Court overturn the Trial Court’s
         Custody Decision and grant [Father’s] petition to modify the
         custody agreement based on the following factors:

            1. The Trial Court showed a bias toward a “preferred
            parent” when reaching a decision in this case.

            2. The Trial Court reached unreasonable conclusions
            and misapplied the law when determining that
            Custody Factors 1, 5, 8, and 13 defined in PA 23 §
            5328 were in favor of Mother.

                                      -5-
J-S09018-18


            3. The Trial Court based its decision on factors that
            had little or nothing to do with the best interests of
            the child[.]

            4. The Trial Court did not analyze how the proposed
            modification impacted the child with regard to the
            defined Custody Factors and thus did not recognize
            that the proposed modification would serve the best
            interests of the child.

            5. The Trial Court reached an unreasonable conclusion
            with regard to the four factors to be considered when
            awarding joint custody as established in Wiseman v.
            Wall, 718 A.2d 844 [(Pa.Super.] 1998)[.]

            6. The Trial Court misapplied the law when
            considering the meaning and context for “minimal
            cooperation between the parties”.

Father’s brief at 3-4.

      “In reviewing a custody order, our scope is of the broadest type and our

standard is abuse of discretion.” V.B. v. J.E.B., 55 A.3d 1193, 1197

(Pa.Super. 2012) (quoting C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super.

2012)). 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.” Id. (quoting C.R.F., 45 A.3d at 443).

We defer to the credibility determinations of the presiding trial judge, “who

viewed and assessed the witnesses first-hand.” Id. (quoting C.R.F., 45 A.3d

at 443). We, however, “are not bound by the trial court’s deductions or

inferences from its factual findings[,]” and “[u]ltimately, the test is whether

the trial court’s conclusions are unreasonable as shown by the evidence of

record.” Id. (quoting C.R.F., 45 A.3d at 443). We may reject the trial court’s

conclusions “only if they involve an error of law, or are unreasonable in light


                                     -6-
J-S09018-18



of the sustainable findings of the trial court.” Id. (quoting C.R.F., 45 A.3d at

443).

        “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014)

(citing J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)). A non-exclusive

list of factors a court should consider when awarding custody are set forth at

23 Pa.C.S.A. § 5328(a).

          (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.


                                       -7-
J-S09018-18


            (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.

            (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).

      In his first four claims, Father presents myriad challenges to the trial

court’s factual findings, credibility determinations, and conclusions. In

essence, Father challenges the court’s decision that a shared physical custody

arrangement would be contrary to Child’s best interest. Father devotes the

majority of his argument to challenging the court’s findings that the following

factors weighed in favor of Mother: the party more likely to encourage and

permit contact between the child and the other party, the availability of

                                     -8-
J-S09018-18


extended family, the attempts of a parent to turn a child against the other

parent, and the level of conflict between the parties.

      We conclude that Father is not entitled to relief. The court made

credibility determinations against Father. Specifically, the court believed

Mother’s testimony that Father threatened to have Child read documents from

this litigation to make sure Child did not marry a “toxic person” like Mother.

1925(a) Op. at 5-6. The court further found that, contrary to Father’s

testimony, Child did not speak to Mother during Father’s custody time because

Father did not want Child to speak with Mother, and questioned Father’s

motive for not sending pictures of Child. Id. at 7, 8. The court thus concluded

that “Father seems unreceptive to Mother’s efforts and seems too bitter to

accept anything less than equal physical custody of the minor child,” and that

on balance, awarding shared physical custody was not in Child’s best interest.

Id. at 12.

      The court then analyzed each of the Section 5328(a) factors and

determined that the majority of the factors either did not apply in this case or

weighed equally in favor of both parents. See Trial Court Opinion, Filed Nov.

13, 2017, at 2-4 (“1925(a) Op.”). The court did conclude that four factors

weighed in favor of Mother – the likelihood of encouraging and permitting

contact with the other party; the availability of extended family; attempts to

turn the child against the other parent; and the parties’ level of conflict and




                                     -9-
J-S09018-18


willingness and ability to cooperate. However, the court did not conclude that

any factor weighed in Father’s favor. Id. at 4-12.

      The record supports the trial court’s factual findings, and in view of those

findings, its legal conclusions are not unreasonable. The record confirms the

court’s determinations that Mother works to promote Child’s relationship with

Father and to improve the parents’ co-parenting abilities, but that Father does

not make similar efforts. It was therefore within the court’s discretion to

conclude that a shared physical custody arrangement was contrary to Child’s

best interest.

      In his fifth and six claims, Father argues that the trial court abused its

discretion by failing to award shared physical custody pursuant to Wiseman.

In that case, this Court held that before awarding shared custody, trial courts

must make four findings:

      (1) [B]oth parents must be fit, capable of making reasonable child
      rearing decisions and willing and able to provide love and care for
      their children; (2) both parents must evidence a continuing desire
      for active involvement in the child’s life; (3) both parents must be
      recognized by the child as a source of security and love; (4) a
      minimal degree of cooperation between the parents must be
      possible.

718 A.2d at 848 (citations omitted).

      Father argues that because, in his view, the evidence supports a

conclusion that he and Mother meet the fourth Wiseman criterion – that the

parents be capable of a minimal degree of cooperation – and because shared




                                     - 10 -
J-S09018-18


physical custody would reduce conflict, the trial court should have granted his

petition to modify custody.

       Father’s reliance on Wiseman is misplaced because we decided

Wiseman (and other decisions applying the same rule3) before Section

5328(a) came into effect. We announced our decision in Wiseman in October

1998, whereas Section 5328 went into effect more than 12 years later, in

January 2011. See Wiseman, 718 A.2d at 844; Act of Nov. 23, 2010, P.L.

1106, No. 112, § 5.4

       The timing matters because Section 5328(a) incorporates each of the

Wiseman factors. Under Section 5328(a), the court, in ordering any form of

custody, must determine the best interest of the child by considering all

relevant factors, including, but not limited to, “the level of conflict between

the parties and the willingness and ability of the parties to cooperate with one

another.” 23 Pa.C.S.A. § 5328(a)(13). Wiseman, however, by its terms

required the court, before awarding shared custody, “to make at least a

minimal finding that the parties were able to cooperate before awarding

shared custody.” Wiseman, 718 A.2d at 849.


____________________________________________


3 See, e.g., Hill v. Hill, 619 A.2d 1086 (Pa.Super. 1993); Andrews v.
Andrews, 601 A.2d 352 (Pa.Super. 1991), aff’d, 625 A.2d 613 (Pa. 1993)
(per curiam); In re Wesley J.K., 445 A.2d 1243 (Pa.Super. 1982).

4 Section 5328(a) was subsequently amended effective January 2014 to add
subsection 5328(a)(2.1), which is not at issue in this case. The amendment
therefore does not change our analysis here, and in any event, the
amendment had an even later effective date.

                                          - 11 -
J-S09018-18


      The difference is not trivial. The rule in Wiseman, that trial courts make

certain findings before awarding shared custody, contradicts the plain

language of Section 5328(a). Section 5328(a), unlike Wiseman, does not

require certain findings before a court may award shared custody. Under the

current statute, courts must now consider all relevant factors, including the

“ability of the parties to cooperate,” when making an award of any form of

custody, and poor cooperation need not be dispositive. The enactment of

Section 5328(a) rendered the Wiseman analysis obsolete. See M.J.M. v.

M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013) (holding primary caregiver

doctrine, “insofar as it required positive emphasis on the primary caretaker’s

status,” was no longer viable after the enactment of Section 5328).

      Our reference to the Wiseman analysis in R.S. v. T.T., 113 A.3d 1254,

1260 (Pa.Super. 2015), is not to the contrary. There, we determined that, in

view of the evidence of record, the trial court’s conclusions under the Section

5328(a) factors were unreasonable, including its determination that the

distance and travel time between the parties’ residences weighed against

shared custody. Id. at 1259-60. We then concluded that the record

demonstrated that the Wiseman factors had been met in that case, such that

we rejected the trial court’s conclusion that shared custody was not in the

child’s best interest. Id. at 1260 (citing Hill, 619 A.2d at 1086; Andrews,

601 A.2d at 352). We concluded that the trial court abused its discretion in

awarding a mother primary physical custody. Id. at 1261.


                                    - 12 -
J-S09018-18


      However, we did not in R.S. address or even consider the issue decided

here, that is, whether trial courts must make the Wiseman findings before

awarding shared custody. Therefore, our conclusion in this case, that courts

need no longer engage in the Wiseman analysis when determining whether

shared custody is appropriate, is not in conflict with R.S.

      To the extent our decisions discussing the Wiseman analysis retain

persuasive value, Section 5328(a) no longer requires a trial court to give

deciding weight to the four specific factors discussed in Wiseman when

awarding shared custody. These four factors are assimilated into Section

5328(a).

      In the instant case, the record supports the trial court’s finding that the

high level of conflict between Mother and Father would make a shared custody

arrangement untenable. The trial court explained that it considered the

parents’ ability to cooperate as part of its analysis of the Section 5328(a)

factors. 1925(a) Op. at 10-11. The court concluded that the parents lack a

minimal degree of cooperation, making a shared physical custody schedule

unworkable and contrary to Child’s best interest. Id. at 10. As discussed

above, the parents have a high-conflict relationship. The record confirms that

they struggle to communicate with each other, and have been unable to

resolve their interpersonal disputes. The court in this case also considered all

the Section 5328(a) factors in reaching its conclusion that Mother should

retain primary physical custody.


                                     - 13 -
J-S09018-18


     Based on the foregoing, we conclude that the trial court did not abuse

its discretion by denying Father’s petition for modification of custody.

Therefore, we affirm the court’s September 19, 2017 order.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/27/18




                                  - 14 -
