J-A18028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.L.B.,                                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                    Appellee

                          v.

M.J.E.,

                    Appellant                    No. 202 MDA 2015


                 Appeal from the Order entered January 22, 2015,
                in the Court of Common Pleas of Bradford County,
                        Civil Division, at No: 2008 FC 0227

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 21, 2015

      M.J.E. (Father) appeals pro se from the order entered January 22,

2015, in the Court of Common Pleas of Bradford County, which awarded

primary physical custody of his minor daughter, S.N.E. (Child), born in July

of 2003, to Father’s former wife, S.L.B. (Mother). After careful review, we

vacate    and    remand    for   further   proceedings   consistent   with   this

memorandum.

      On April 21, 2014, Mother filed a petition to modify the parties’

existing custody order, entered on May 20, 2009, pursuant to which Mother

and Father exercised shared legal and physical custody of Child. A custody

trial was held on January 22, 2015, before the Honorable Jeffrey A. Smith.

Mother was represented by counsel during the trial, and Father proceeded

pro se.   The court first heard the testimony of Mother, who was cross-
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examined by Father.     Mother’s counsel also cross-examined Father, who

then offered a brief statement to the court. Finally, Child was questioned by

Mother’s counsel and by Father.      Following the trial, the court entered its

order awarding primary physical custody of Child to Mother. The order also

awarded both parties shared legal custody and awarded Father partial

physical custody.   Specifically, Father was awarded physical custody every

other week from Thursday evening until Sunday evening during the school

year. The court’s order further provided that the custody schedule would be

reversed during the first six weeks of summer, such that Mother would have

physical custody every other week from Thursday evening until Sunday

evening.1 Father timely filed a notice of appeal on January 30, 2015, along

with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).

      Father now raises the following issues for our review, which we have

reordered for ease of disposition.




1
  The subject order states that Father is to receive “extended weekends” of
physical custody, without specifying how often those weekends are supposed
to take place. Order, 1/22/15, at 1. However, a later provision in the order
indicates that the physical custody schedule is intended to be biweekly, and
that Mother will receive physical custody every other weekend when the
custody schedule is “reversed” during the first six weeks of summer. Id.
Thus, we can infer that Father was intended to receive custody every other
weekend at all other times. This interpretation is consistent with the trial
court’s comments at the close of the custody trial. See N.T., 1/22/15, at 53
(“I think that what I will do is make an order that provides you with every
other weekend . . . .”).
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      [1.] Under PA [l]aw, can the [trial c]ourt issue a [c]ustody
      [o]rder without detailing the reason for its decision either on the
      record or in it’s [sic] written opinion?

      [2.] Under PA law, can the [trial c]ourt modify an existing
      custody [order] based on [g]ender?

      [3.] Under PA law, can an 11[-]year[-]old minor child have the
      maturity and life experience [to] make decisions [i]n [her] best
      interest[]?

Father’s brief at 5 (trial court answers omitted).

      We address Father’s claims mindful of our well-settled standard of

review.

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion.          We must accept
      findings of the trial court that are supported by competent
      evidence of record, as our role does not include making
      independent factual determinations. In addition, with regard to
      issues of credibility and weight of the evidence, we must defer to
      the presiding trial judge who viewed and assessed the witnesses
      first-hand. However, we are not bound by the trial court’s
      deductions or inferences from its factual findings. Ultimately,
      the test is whether the trial court’s conclusions are unreasonable
      as shown by the evidence of record.            We may reject the
      conclusions of the trial court only if they involve an error of law,
      or are unreasonable in light of the sustainable findings of the
      trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

      “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)

(citation omitted). The factors to be considered by a court 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

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     relevant factors, giving weighted consideration to those factors
     which affect the safety of the child, including the following:

          (1) Which party is more likely to encourage and
          permit frequent and continuing contact between the
          child and another party.

          (2) The present and past abuse committed by a
          party or member of the party’s household, whether
          there is a continued risk of harm to the child or an
          abused party and which party can better provide
          adequate physical safeguards and supervision of the
          child.

          (2.1) The information set forth in section 5329.1(a)
          (relating to consideration of child abuse and
          involvement with protective services).

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

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

          (5) The availability of extended family.

          (6) The child’s sibling relationships.

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

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

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

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


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

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

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

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

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

           (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

     Instantly, Father’s first issue is that the trial court erred by failing to

consider the Section 5328(a) factors. Father’s brief at 12-15. Father argues

that the court’s “opinion and subsequent ruling failed to address and detail

all the enumerated factors, and thus the child’s bests interests.” Id. at 14-

15. We agree.

     It is well-settled that the Child Custody Act requires courts to consider

each of the Section 5328(a) factors when “ordering any form of custody.”

23 Pa.C.S.A. § 5328(a). “Mere recitation of the statute and consideration of

the § 5328(a) factors en masse is insufficient.”     S.W.D., 96 A.3d at 401

(citing C.B. v. J.B., 65 A.3d 946, 950 (Pa. Super. 2013), appeal denied, 70

A.3d 808 (Pa. 2013)). A court must “set forth its mandatory assessment of



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the sixteen factors prior to the deadline by which a litigant must file a notice

of appeal.” C.B., 65 A.3d at 955.

            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.
      A court’s explanation of reasons for its decision, which
      adequately addresses the relevant factors, complies with [the
      Child Custody Act].

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citations and quotation

marks omitted).

      Here, it is clear that the trial court was required to consider the

Section 5328(a) factors.2     While the court offered an explanation of its

decision at the conclusion of the January 22, 2015 custody trial, the court

did not directly address any of these factors, other than Child’s preference to

spend more time with Mother. In addition, the court did not draft an opinion



2
  Mother argues, inter alia, that it was not necessary for the trial court to
consider the Section 5328(a) factors, “because the trial court only modified a
portion of the parties’ custody arrangement.” Mother’s brief at 5 (citing
M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014)). In M.O., a panel of this
Court held that a trial court was not required to consider the Section 5328(a)
factors “[b]ecause the trial court did not make an award of custody, but
merely modified a discrete custody-related issue . . . .” 85 A.3d at 1063. In
contrast, the trial court in the instant matter awarded primary physical
custody to Mother, when the parties previously had been awarded shared
physical custody. Notably, consideration of the Section 5328(a) factors may
be necessary even when a court denies a petition to modify. S.W.D., 96
A.3d at 406. In such cases, the key question is whether the petition to
modify requests a change to the underlying form of custody. Id. (“Even if
the trial court only reaffirmed its prior order, it nonetheless was ruling upon
a request to change the form of physical custody and, therefore, bound to
decide whether the prior order remained in [the c]hild’s best interest.”).
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explaining its decision.3 Accordingly, we must vacate the court’s order and

remand this matter for the preparation of a new order and opinion. Upon

remand, the trial court is directed to hold further proceedings, if necessary,

and to issue a new order and opinion within forty-five days of the date of

this memorandum.4

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2015




3
   The Honorable Maureen T. Beirne issued a “Statement in Lieu of 1925
Opinion,” dated February 19, 2015, in which she explained that Judge Smith
is now retired, and that the reasons for Judge Smith’s ruling could be found
in the transcript of the January 22, 2015 custody trial.
4
 In light of our conclusion that this case must be remanded for a new order
and opinion, we do not address Father’s remaining arguments. Without a
proper opinion considering each of the Section 5328(a) factors, we are
unable to determine if the court abused its discretion by awarding Mother
primary physical custody.

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