J-S15030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    H.C.Z.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    J.K.Z.                                     :   No. 1727 WDA 2019

                Appeal from the Order Entered October 23, 2019
       In the Court of Common Pleas of Allegheny County Family Court at
                          No(s): FD 16-008902-008


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 17, 2020

        Appellant, H.C.Z. (“Father”), appeals the October 23, 2019 order

modifying custody between Father and J.K.Z. (“Mother”). We affirm, in part,

and vacate, in part, and remand the case with instructions.

        The trial court summarized the factual and procedural history as follows:

        The parties married in 2004 and are the parents of three children,
        aged 7, 9, and 11 [(collectively, “the children”)]. During the
        marriage, the parties lived in the Upper St. Clair school district[,
        located in Upper St. Clair, a suburb of Pittsburgh, Pennsylvania].
        Father moved out of the marital residence in July []2016 to an
        apartment complex in the North Hills of Pittsburgh where his
        paramour lived, approximately one hour away. Mother remained
        with the children in the marital home in Upper St. Clair[,] where
        the children have remained in school. When the divorce was final
        in 2019, Father married his paramour and they purchased a home
        in Wexford, [Pennsylvania,] approximately 45 minutes from Upper
        St. Clair.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Trial Court Opinion, 1/13/20, at 2-3 (footnote omitted).

       After Father moved out of the marital residence, Father and Mother

consented to custody arrangements for the children as set forth in the order

entered March 22, 2017, and subsequently modified by orders entered

October 18, 2018, and October 22, 2018 (collectively, “the custody order”).

Under the custody order, Mother exercised primary physical custody of the

children and Father retained partial physical custody of the children.1     On

October 30, 2018, Father filed a petition for modification of partial physical

custody.    On February 27, 2019, Mother filed an emergency petition for

modification of the custody order.

       A hearing was held before a custody hearing officer on March 5, 2019,

and May 8, 2019. Upon conclusion of the hearing, the custody hearing officer

filed a report and recommendation on May 21, 2019.2 The trial court entered

a temporary order on May 21, 2019, modifying the terms of the custody order

and notified parties that the temporary order would become a final order

unless a party filed exceptions within 20 days.

       On June 6, 2019, Father filed exceptions to the temporary order

asserting error in the failure to permit school year overnight weekday custody,

____________________________________________


1 Section 5322 of the Child Custody Act defines primary physical custody as
“[t]he right to assume physical custody of the child for the majority of time”
and defines partial physical custody as “[t]he right to assume physical custody
of the child for less than a majority of the time.” 23 Pa.C.S.A. § 5322(a).

2 The record demonstrates that a second copy of the custody hearing officer’s
report and recommendation was filed on May 24, 2019.

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to expand his school year weekend custody, and to expand his summer

custody. After a hearing on Father’s exceptions, the trial court sustained, in

part, Father’s exceptions pertaining to weekend custody during the school

year and denied the remaining exceptions pertaining to overnight weekday

custody during the school year and expanded summer custody. On October

23, 2019, the trial court entered a final order of custody (“the final custody

order”) that included the modified provisions. This appeal followed.3

       Father raises the following issues for our review:

        I.    Whether the [t]rial [c]ourt committed an abuse of discretion
              in failing to expand Father'[s] school year [weekend]
              custody by more than a few hours, and failing to award
              []overnight [weekday] custody, based upon an alleged
              "lengthy" car ride and [the] children's preference?

       II.    Whether the [t]rial [c]ourt committed an abuse of
              discretion[] in failing to expand Father's summer custodial
              schedule, despite the [custody h]earing [o]fficer making a
              finding that an expansion was warranted, [and] ratifying the
              then existing summer custody schedule[,] which did not
              expand Father's summer custody?

Father’s Brief at 4.

       Our scope of review and standard of review of modifications to custody

orders are as follows:

       The appellate court is not bound by the deductions or inferences
       made by the trial court from its findings of fact, nor must the
       reviewing court accept a finding that has no competent evidence
____________________________________________


3 On November 21, 2019, Father filed a concise statement of errors
complained of on appeal with his notice of appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). The trial court subsequently filed its Rule 1925(a) opinion on
January 13, 2020.

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      to support it. However, this broad scope of review does not vest
      in the reviewing court the duty or the privilege of making its own
      independent determination.        Thus, an appellate court is
      empowered to determine whether the trial court's incontrovertible
      factual findings support its factual conclusions, but it may not
      interfere with those conclusions unless they are unreasonable in
      view of the trial court's factual findings; and thus, represent a
      gross abuse of discretion.

      []On issues of credibility and weight of the evidence, we defer to
      the findings of the trial court who has had the opportunity to
      observe the proceedings and demeanor of the witnesses.

      The parties cannot dictate the amount of weight the trial court
      places on evidence. Rather, the paramount concern of the trial
      court is the best interest of the child. Appellate interference is
      unwarranted if the trial court's consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations, original brackets,

and ellipses omitted). Simply stated, “[t]he test is whether the evidence of

record supports the trial court's conclusions” and the conclusions are grounded

in a comprehensive evaluation of the best interest of the child. Id. (citation

omitted).

      Section 5338 of the Child Custody Act states that when considering a

modification of an existing custody order, “[u]pon petition, a court may modify

a custody order to serve the best interest of the child.”        23 Pa.C.S.A.

§ 5338(a). It is only when the request for modification involves a change in

the type of custody awarded that trial courts are required to consider the

sixteen factors enumerated in 23 Pa.C.S.A. § 5328(a) in determining the best

interest of the child. M.O. v. J.T.R., 85 A.3d 1058, 1062 (Pa. Super. 2014).

Otherwise, when the order does not change the underlying type of custody

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awarded but, rather, only changes a finite term or parameter of the existing

custody arrangements, the trial court is required to consider the requested

modification only in the best interest of the child.4 Id. at 1063. “The best

interest[ of the child] standard, decided on a case-by-case basis, considers all

factors which legitimately have an effect upon the child's physical, intellectual,

moral and spiritual well-being.” C.M. v. M.M., 215 A.3d 588, 591 (Pa. Super.

2019), quoting Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006), citing

Arnold v. Arnold, 847 A.2d 674 (Pa. Super. 2004).

       The burden is on the parent requesting the modification to show that

the requested modification is in the best interest of the child.

       It is axiomatic that the potential harm that may result from the
       disruption of established patterns of care and emotional bonds
       underscores the need for continuity, stability, and finality
       imparted to custody arrangements. A modification of custody is
       not warranted merely because one parent is unhappy with the
       existing arrangement. Thus, we repeatedly have emphasized that
       a party requesting modification must prove that the alteration of
       an existing custody arrangement is in the child's best interest.

Jackson v. Beck, 858 A.2d 1250, 1252 (Pa. Super. 2004) (citations omitted).

____________________________________________


4 We recognize that prior panels of this Court held that the sixteen factors
enumerated in Section 5323(a) are required to be considered in review of
certain custody modification orders. See M.O., 85 A.3d at 1062 n.2. As noted
in M.O., supra, however, those custody modification orders involved requests
to change the type of custody awarded to a parent, as well as requests for
modification, and were not limited to requests to change a finite term or
parameter of the existing custody arrangements. Id. at 1062. We concur
with the M.O. Court that “[a] contrary decision, requiring application of the
strictures found in Section 5328(a) [] to each and every decision that is
subsidiary or ancillary to a custody dispute, would impose an undue burden
on trial courts and, by extension, on custody litigants.” Id. at 1063 n.4.

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       Here, Father’s petition for modification of partial physical custody

requested that the children be afforded more time with Father.            Father’s

Petition for Modification of Partial Physical Custody, 10/30/18, at ¶4. Father

did not request modification of the type of custody he was awarded but,

rather, requested modification of the hours when he enjoyed partial physical

custody. Father’s Pre-Trial Statement, 2/26/19, at Proposed Custody Order

of Court ¶3. Specifically, Father proposed,

       The parties shall share physical custody as follows:

          a. Father shall have custody every other weekend from
          Thursday at noon (or after school, if a school day) until
          Monday at 4[:00] p.m. (or school drop off, if a school day);

          b. Father shall have custody on the alternate weeks from
          Wednesday after school (or 4[:00] p.m. if not a school day)
          until Friday morning school drop off (or 9[:00] a.m. if not a
          school day);

          c. Mother to have custody at all other times.

Id. We find that Father sought to modify only finite terms of the custody

arrangement and not the type of custody. Therefore, the trial court needed

to consider only the best interests of the children and did not need to consider

the sixteen factors enumerated in Section 5328(a), although it could consider

them when assessing the best interest of the children.5

____________________________________________


5 We note that Father argues erroneously that the trial court must consider
the sixteen factors enumerated in Section 5328(a) in deciding his request for
modification. Father’s Brief at 9. As discussed supra, the trial court is required
to consider only the best interests of the children. A review of Father’s position
demonstrates he adequately framed his argument in the context of the best
interests of the children. Id. at 9-13.

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      Father first challenges the trial court’s failure to award overnight

weekday custody and to expand his school year weekend custody by only a

few hours. Father’s Brief at 9-13. Father contends that it is in the best interest

of the children to modify his time during the school week so they “would have

the benefit of having Father integrated into their school and activity

schedules.” Id. at 12. Father asserts that the trial court erred in finding that

“Father’s request was designed only to serve his interests and not the best

interests of the children.” Id. at 11. Father argues that the trial court “found

that an extra 13-17 minutes in the car was an impediment to Father

exercising additional school year custody and not in the children’s best

interest.” Id. (emphasis in original).

      The trial court modified the custody order with regard to Father’s school

year partial custody as follows:

      On the weekends during the school year when Father exercises
      his partial custody, he shall pick up the children at school on Friday
      after school has ended and drop them off on Monday morning at
      the start of the school day. If the children do not have school on
      a Friday [that] falls during Father's custody time, he may pick the
      children up at Mother's home at noon. If the children have
      activities after school on Friday during Father's custody time, it is
      Father's responsibility to get the children to those activities.

Trial Court Order, 10/23/19. By so ordering, the trial court expanded Father’s

school year custody by permitting Father to pick the children up after school

on the Fridays corresponding to his custody weekends or at noon if there were

no school that particular Friday, instead of picking the children up at 5:00 p.m.

at Mother’s house. All other aspects of Father’s school year custody, including

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his partial custody each Wednesday from 5:00 p.m. to 7:00 p.m., remained

the same.

       The trial court determined “that the additional stress and burden placed

on the children by the lengthy car ride to and from school [when staying at

Father’s house], coupled with their reluctance to expand their time in Father's

custody, more than offset any potential benefit afforded to them by the

modification.” Trial Court Opinion, 1/13/20, at 7. The trial court examined

the children’s best interests, as evidenced by its consideration that overnight

weekday custody during the school year would require the children to get out

of bed earlier and would require a longer ride to and from school.6 Id. at 5.

The trial court found the children had extra-curricular activities after school

ended that already extended their length of time out of the house and that

this, coupled with a longer ride to Father’s house after concluding their

activities, would result in the children not arriving home until quite late. Id.

The trial court explained that it was not in the children’s best interests to

____________________________________________


6 We note that the trial court attributed 45 minutes of additional commute
time to or from school when the children were at Father’s house. However,
the trial court failed to consider the commute time to or from school when the
children were at Mother’s house. The record demonstrates that the children
spent approximately 20 minutes on a bus ride to or from school when at
Mother’s house. N.T., 5/8/19, at 63, 110. Nonetheless, the children would
experience an additional 25 minutes of commute time to or from school when
they are at Father’s house using the approximations supra and this additional
time would require the children to get out of bed earlier in order to arrive at
school on-time.




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require an extended commute to and from school when staying at Father’s

house so that “Father can feel he has more involvement with their school

activities.[7]” Id. at 6. The trial court noted that it was Father’s choice where

to relocate and he chose to relocate to an area close to his new wife’s family.

Id. Moreover, the trial court considered the testimony of the children in which

one child indicated they needed to get up earlier in the morning because of

the additional commute time, a second child indicated a difficulty of sleeping

at Father’s house because of missing Mother, and the third child indicated a

fear of sleeping at Father’s house because of a lack of a nightlight. Id. The

trial court’s findings of fact are supported by competent record evidence, and

the trial court considered thoroughly the children’s best interests in deciding

whether to modify custody during the school year. Therefore, we find no error

in the trial court’s final custody order with regard to the school year

modifications.

       Father’s second issue challenges the trial court’s decision not to modify

the custody order with regard to the summer custody arrangements. Father’s

Brief at 13-14. Father contends the custody hearing officer “found that Father

should exercise more time in the summer.” Id. at 13. Father asserts that the


____________________________________________


7 Father explained, “So right now usually when I [pick them up from Mother’s
house], they have been out of school for a few hours, and [] they are not
really talking about their day very much. But if I get them right out of school,
as with other events, they talk about what's going on, talk about what they
did, and []it allows me to become much more connected with their school day
and with what[] that part of their life is.” N.T., 5/8/19, at 7-8.

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trial court abused its discretion by failing to expand his summer custody. Id.

at 13-14.

       The final custody order modified summer custody arrangements such

that Father was given custody from Thursday at 12:00 p.m. to Monday at

9:00 a.m. on his custody weekends.             In the week leading up to Mother’s

custody weekend, Father was given custody from Wednesday at 12:00 p.m.

to Friday at 9:00 a.m.8 In modifying the summer custody arrangements, the

trial court explained,

       A review of the transcript reveals that Father was given the
       schedule that he requested at trial. Father now appears to be
       disappointed that he was not given more than he requested. As
       Father received what he asked for, this argument should be
       deemed waived.

Trial Court Opinion, 1/13/20, at 7.

       Father’s testimony at the hearing demonstrated that Father requested

summer custody from Thursday at 12:00 p.m. to Monday at 4:00 p.m. on his

custody weekends. In the week leading up to Mother’s custody weekends,

Father requested summer custody from Wednesday at 4:00 p.m. to Friday at

9:00 a.m.     Although it appears that Father received the same number of

requested hours of summer custody after the modification, the distribution of
____________________________________________


8 Prior to the modification, the summer custody arrangement on Father’s
custody weekends was from Friday at 5:00 p.m. to Monday at 9:00 a.m. (or
to 4:00 p.m. if Father were not at work). In the week leading up to Mother’s
custody weekends, Father had custody from Wednesday at 5:00 p.m. to
Thursday at 9:00 a.m. and Thursday at 5:00 p.m. to Friday at 9:00 a.m. (or
Wednesday at 5:00 p.m. to Friday at 9:00 a.m. if Father did not have work
on Thursday).

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those hours in the final custody order was not what Father requested.

Therefore, Father did not waive this issue.

      A review of the trial court’s modification of the summer custody

arrangements reveals that the trial court did not consider the best interests

of the children, as required, but, rather, viewed the modification as giving

Father what he requested. Id. While school was in session, the trial court

determined the interests of the children were best served by, inter alia,

limiting both the length and the number of car rides to and from school, and

the need for the children get out of bed earlier in the morning in order to be

on-time for school. The trial court, however, made no findings concerning the

best interests of the children during the summer. Therefore, we find that the

trial court erred as a matter of law with regard to the summer custody

arrangements by not considering the best interests of the children when

determining   the   modification   of    the     summer   custody   arrangements.

Consequently, we vacate the final custody order, in part, as it pertains to the

summer custody arrangements and remand the case to the trial court with

limited instructions to consider the best interests of the children in modifying

and expanding Father’s summer custody.

      Order affirmed, in part, vacated, in part.           Case remanded with

instructions. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2020




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