J-A10016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.D.                                               IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

H.K., A.S., AND A.S.

                            Appellee                    No. 1752 MDA 2014


               Appeal from the Order Entered September 26, 2014
                In the Court of Common Pleas of Luzerne County
                    Civil Division at No(s): 10580-C OF 2005


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                               FILED AUGUST 17, 2015

        Appellant, E.D., appeals from the September 26, 2014 order denying

her petition to modify the existing custody order and setting forth a custody

schedule between herself and Appellee, H.K., her former girlfriend, with

respect to the minor female child, H.M.S., born in January 2005.1              After

careful review, we vacate and remand for reconsideration and further

proceedings if necessary.

        The trial court set forth the following factual and procedural history of

this case, as follows.

              The current custody Order, dated July 16, 2014,
              awards [Appellee], primary physical custody of the
              child and partial physical custody to [Appellant] with
____________________________________________


1
    H.M.S. is not the biological child of E.D. and H.K., as discussed infra.
J-A10016-15


              shared legal custody to both parties. [Appellant]’s
              partial physical custody consists of every other
              weekend from Friday until Sunday, every Wednesday
              evening, and one week of vacation each June, July,
              and August. H.M.S.’s natural parents are … [A.S.]
              and [A.S.2] [A.S., the child’s biological mother,] and
              [Appellant] are first cousins. The natural parents
              had a difficult time taking care of H.M.S. in or around
              May of 2005 and they began asking [Appellant] to
              help them take care of the child.           [Appellant]
              testified that in November of 2005, the natural
              parents indicated to [Appellant] they wanted her to
              take care of [H.M.S.] On November 29, 2005, a
              written stipulation was entered between the natural
              parents     and     [Appellant]    and    [Appellee].[3]
              [Appellant] and [Appellee] were in a relationship and
              were residing together at the time. The written
              stipulation was adopted by Court order which
              awarded [Appellant] and [Appellee] primary physical
              custody and legal custody of the child. Therefore,
              [Appellant] and [Appellee] had primary physical
              custody and legal custody of the child from
              November 29, 2005 until 2007 when the parties
              ended their relationship. [Appellant] and [Appellee]
              then had a verbal agreement to share physical
              custody. Their agreement provided three (3) days
              with one party and four (4) days with the other, on
              an alternating basis.

                    On January 23, 2007, [Appellant] sought
              primary physical custody of [H.M.S] against
              [Appellee] claiming that it was too difficult for the
              child to live with the parties on a shared physical
____________________________________________


2
  H.M.S.’s natural parents, A.S. and A.S., were not parties in the subject
proceedings before the trial court. Likewise, they are not parties in this
appeal.
3
  We note that preliminarily an order was entered into between only
Appellant and the natural parents on September 20, 2005. By agreement of
the parties, said order was modified on November 29, 2005 to include
Appellee.



                                           -2-
J-A10016-15


           custody basis. [On March 8, 2007, a temporary
           order was entered, providing Appellant and Appellee
           would continue to have shared physical and legal
           custody of H.M.S.] A custody trial took place and
           Judge Joseph Augello issued an opinion on October
           9, 2007 awarding the parties shared legal custody,
           [Appellant] primary physical custody and [Appellee]
           partial physical custody on alternating weeks from
           Friday at 5:00 p.m. until Tuesday at 6:00 p.m. and
           an extra six (6) hours block of time on another day.

                  In the spring of 2013, a dependency petition
           was filed by Children and Youth alleging that
           [Appellant] was permitting her teenage son to smoke
           marijuana with her and that she was misusing her
           prescription medication.    Due to the dependency
           petition, H.M.S. was removed from [Appellant]’s
           home in addition to the three (3) other children
           residing with [Appellant].        Pursuant to the
           dependency court order, temporary physical and
           legal custody of the child was then awarded to
           [Appellee] during the summer of 2013.            On
           September 9, 2013, [Appellant] was required to
           complete services pursuant to the Family Service
           Plan and had two hours of supervised visits with
           H.M.S.      [On January 13, 2014, a]fter the
           dependency was closed in December of 2013,
           [Appellant] filed a Petition to Modify the custody
           Order and to reinstate her contact.

Trial Court Opinion, 11/17/14, at 2-3 (some citations omitted).

     A hearing on Appellant’s petition occurred on September 3 and 19,

2014. Appellant testified on her own behalf and presented the testimony of

her boyfriend, E.P.; and her father and mother, F.K. and N.K.      Appellee

testified on her own behalf and presented the testimony of her mother, L.K.;

Carol McMullen, a friend of Appellee and H.M.S. from church; and Jo Ann

Jason, who is an acquaintance of Appellee and H.M.S. from H.M.S.’s softball


                                    -3-
J-A10016-15


league.    In addition, H.M.S. testified in camera, in the presence of the

parties’ counsel.

       At the time of the hearing, Appellant testified that she is the biological

mother of two male children, C.C., age sixteen, and C.D., age seven, and

one female child, A.D., age five. N.T., 9/3/14, at 6-7. Appellant’s younger

children, C.D. and A.D., were born after she and Appellee separated, during

her marriage to C.D.4          N.T., 9/19/14, at 62.      Appellant lives in West

Wyoming, in Luzerne County, with her biological children, her boyfriend,

E.P., and his eleven-year-old daughter, O.P. N.T., 9/3/14, at 6-7. Appellant

is not employed. Id. at 7.

       Appellee lives with her mother, L.K., and other relatives in Laceyville,

in Wyoming County, in a home located on a 200-acre organic dairy farm.

Id. at 9, 11-12. Appellee’s home is a driving distance of approximately one

hour and 15 minutes from Appellant’s home. N.T., 9/19/14, at 56. Appellee

is employed as a marketing consultant, and she makes her own work

schedule. Id. at 9.

       Appellant testified that, in the spring of 2013, a dependency action

was initiated involving H.M.S. and her biological children due to a report

made by her husband, C.D., alleging that Appellant smoked marijuana with

her then 15-year-old son, C.C.           N.T., 9/3/14, at 20.   In addition, arising
____________________________________________


4
  At the time of the subject proceedings, divorce litigation was pending
between Appellant and C.D.



                                           -4-
J-A10016-15


from   the   same   allegations,   Appellant   was   criminally   charged   with

endangering the welfare of children.           Appellant testified that C.D.’s

allegations were false. Id. at 20. Appellant testified that, as a result of the

dependency action, her biological children were placed in the temporary

custody of her parents.      Id. at 22.   By court order dated July 5, 2013,

H.M.S. was placed in the custody of Appellee. Id. at 22, 143-144.

       In December 2013, the dependency action was closed, and in May

2014, the criminal charges against Appellant were dismissed.         Id. at 23,

153-154. In addition, Appellant had appealed the indicated status for child

abuse that was lodged against her during the dependency action, and her

appeal was granted as the accusations were unfounded and the case was

closed. Id. at 24-25, 154.

       On January 13, 2014, when Appellant filed the petition to modify the

existing custody order, H.M.S. had been in Appellee’s primary physical

custody for six months.      By the time of the hearing, H.M.S. had been in

Appellee’s primary custody for more than 14 months, and she had attended

third grade in Appellee’s school district, Wyalusing Valley. H.M.S. testified in

camera, at which time she was nine years old and had just started fourth

grade. H.M.S. testified that she likes her new school and has friends there,




                                     -5-
J-A10016-15


but her preference was to return to the Wyoming Area School District.5

N.T., 9/19/14, at 65, 67-68. She testified as follows on inquiry by the trial

court.

              Q. So, how do you feel about where you’re living and
              going to school right now? How does that make you
              feel?

              A. I kind of like it.

              Q. Would you want it to change?

              A. Yeah. I want to go to Wyoming Area. I had more
              friends there.

                                               …

              Q. [S]o, let me understand what you’re saying. Are
              you saying that you would rather go to Wyoming
              Area but still live with [Appellee]; or, are you saying
              you rather go to Wyoming Area and - -

              A. I want to live with [Appellant] and go to Wyoming
              Area.

                                               …

              Q. If you had a magic wand and you can make
              something come true, what is it that that would be?

              A. That I can go to Wyoming Area and see my
              friends.

              Q. So you miss Wyoming Area because you miss
              friends, or do you miss Wyoming Area because you
              miss going to school there?

____________________________________________


5
  H.M.S. attended the Wyoming Area School District while in Appellant’s
primary physical custody. N.T., 9/3/14, at 57.



                                           -6-
J-A10016-15


            A. Miss going to school. I’ve been going to school
            there since kindergarten.

Id. at 89, 91-92.

      On September 26, 2014, the trial court denied the petition to modify

the existing custody order. The subject order made permanent the award of

shared legal custody between the parties, maintained primary physical

custody in Appellee, and partial physical custody in Appellant on alternating

weekends, from Friday at 5:00 p.m. until Sunday at 7:00 p.m., and every

Wednesday from 5:00 p.m. to 7:00 p.m. In addition, the order set forth a

holiday schedule.

      On October 16, 2014, Appellant timely filed a notice of appeal and a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). On November 17,

2014, the trial court issued its Rule 1925(a) opinion.

      On appeal, Appellant sets forth the following issue for our review.

            [1.] Whether the trial court committed an error of
            law and/or abuse of discretion in failing to properly
            apply the statutory factors set forth in 23 Pa.C.S.A.
            § 5328(a) requiring a conclusion that it was in the
            best interest and welfare of the minor child to return
            and/or transfer custody to [] Appellant and whether
            said decision was against the weight of the
            evidence[?]




                                      -7-
J-A10016-15


Appellant’s Brief at 26.6

       The scope and standard of review in custody matters is as follows.

                     [T]he 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 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.

              R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
              Super. 2009) (quoting Bovard v. Baker, 775 A.2d
              835, 838 (Pa. Super. 2001)). Moreover,

                     [O]n 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
____________________________________________


6
  We note that Appellant withdrew the other issue raised in her Rule
1925(a)(2)(i) statement asserting that the trial court failed to address the
Section 5328(a) factors, based on the trial court’s November 17, 2014 Rule
1925(a) opinion.



                                           -8-
J-A10016-15


                    of the child was careful and thorough, and we
                    are unable to find any abuse of discretion.

              R.M.G., Jr., supra at 1237 (internal citations
              omitted). The test is whether the evidence of record
              supports the trial court’s conclusions. Ketterer v.
              Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

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

omitted).

         Further, we have stated the following.

              [T]he discretion that a trial court employs in custody
              matters should be accorded the utmost respect,
              given the special nature of the proceeding and the
              lasting impact the result will have on the lives of the
              parties concerned. Indeed, the knowledge gained by
              a trial court in observing witnesses in a custody
              proceeding cannot adequately be imparted to an
              appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).

         The primary concern in any custody case is the best interests of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.”    Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d

674, 677 (Pa. Super. 2004).

         Relevant to this custody case are the factors set forth in Section

5328(a) of the Child Custody Act (the Act), 23 Pa.C.S.A. §§ 5321-5340,

which provides as follows.


                                       -9-
J-A10016-15


          § 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.

                (2.1) The information set forth in section
                5329.1(a)(1) and (2) (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



                                   - 10 -
J-A10016-15


                     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.A. § 5328(a).7

       This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a
____________________________________________


7
  The Act was amended, effective January 1, 2014, to include the additional
factor at Section 5328(a)(2.1).



                                          - 11 -
J-A10016-15


custody order.”      J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original; citation omitted).

              Section 5323(d) provides that a trial court “shall
              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). Additionally, “section 5323(d)
              requires the trial court to set forth its mandatory
              assessment of the sixteen [Section 5328 custody]
              factors prior to the deadline by which a litigant must
              file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
              955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
              (Pa. 2013)….

              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.”
              M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
              2013), appeal denied, 68 A.3d 909 (Pa. 2013). A
              court’s explanation of reasons for its decision, which
              adequately addresses the relevant factors, complies
              with Section 5323(d). Id.

A.V., supra at 822-823.          With these standards in mind, we turn to the

merits of this appeal.

       Instantly, in the subject order, without setting forth with specificity its

reasons in support of each factor, the trial court nevertheless stated that it

considered the Section 5328(a) custody factors in reaching its custody

determination.      Custody Order, 9/26/14, at 2-3.8       In its Rule 1925(a)

____________________________________________


8
  The custody order does not contain pagination. For ease of review we
have assigned each page a sequential page number.




                                          - 12 -
J-A10016-15


opinion, the trial court remedied said error and set forth its mandatory

assessment of the custody factors. Trial Court Opinion, 11/17/14, at 6-23.

      On appeal, Appellant argues that the trial court committed an error of

law and/or abused its discretion in failing to weigh the Section 5328(a)

custody factors in her favor. Appellant’s Brief at 29. Specifically, Appellant

addresses each factor listed in Section 5328(a) in the order they appear.

The crux of her argument is that H.M.S. should be returned to her primary

physical custody because the dependency action has been closed, and the

criminal action against her dismissed. Id. at 46.

      A review of the trial court’s opinion demonstrates that the trial court

found a majority of the factors did not weigh in favor of either Appellant or

Appellee. See Trial Court Opinion, 11/17/14, at 6-23. Specifically, under

Section 5328(a)(1), the trial court found that both parties “testified as to

problems they were having with each other regarding the other party not

likely encouraging and permitting frequent and continuing contact between

the child and that party.” Trial Court Opinion, 11/17/14, at 6. In its Rule

1925(a) opinion, the trial court reviewed the testimony involving the parties’

allegations and defenses thereto. Id. at 6-8. The trial court concluded that,

“[b]ased on the testimony of the parties and witnesses, and the parties’

explanation for their conduct, the [trial] court finds that there was not

sufficient testimony to indicate that either party would be more likely than




                                    - 13 -
J-A10016-15


the other to encourage and permit frequent contact versus the other.” Id.

at 8.

         Next, in regards to Section 5328(a)(3), the parental duties performed

by each party on behalf of the child, the trial court found that, “both parties

provide for the daily needs of the child, through the performance of parental

duties.”     Id. at 11.   Likewise, the trial court did not find significant the

factors listed in Section 5328(a)(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, and Section 5328(a)(10), which party is

more likely to attend to the daily physical, emotional, developmental,

education and special needs of the child. Regarding these two factors, the

trial court found that, “[b]oth parties offer their love and support to the

child.     Both parties have the child involved in sports activities and both

parties do homework with the child each night when the child is in their

custody.” Id. at 20. The testimonial evidence of the parties, H.M.S., and

the witnesses supports this finding.     Additionally, the trial court found that

pursuant to Section 5328(a)(11), although the distance between the parties

homes was one hour and 15 minutes, it was in H.M.S.’s best interest to

spend time with both parents. Id.

         Similarly, with respect to Section 5328(a)(13), the level of conflict

between the parties, and the willingness and ability of the parties to

cooperate with one another, “both [Appellant] and [Appellee] indicated in


                                      - 14 -
J-A10016-15


their testimony that the other party is not willing and able to cooperate with

the other.”    Id. at 21.   The trial court found that, while “communication

between the parties must improve in order to serve the best interests and

welfare of the child[,]” “there was no testimony to support the belief that

one party versus the other would in any way cooperate better than or be

ready to inform the other party of information regarding the child.” Id. at

22.

      Finally, with respect to Section 5328(a)(12), each party’s availability

to care for the child or ability to make appropriate child-care arrangements,

the trial court found as follows.

              Both parties are available to care for the child and
              both parties are able to make appropriate child-care
              arrangements. [Appellant] testified that she is a
              “stay at home” mother and therefore available to
              take care of the child. Her father and mother are
              also available to help if needed. [Appellee] testified
              that although she works full time, her work is flexible
              which enable[s] her to take care of H.M.S. In the
              event she is not available, her mother resides in the
              same home and she is able to help if needed. Also,
              [Appellee]’s grandmother can [ ] help with the bus
              stop if needed. In the summer, [Appellee] also has
              an accessible day care to use if needed. Therefore,
              this factor does not weigh in favor of one party
              versus the other.

Id. at 21.     The testimonial evidence supports the trial court’s findings.

Accordingly, we discern no abuse of discretion by the court in its factual

findings with respect to Section 5328(a)(1), (3), (9), (10), (11), (12) and

(13), and the weight the court placed on these factors.


                                      - 15 -
J-A10016-15


      Notably, however, there were only three factors the trial court found

weighed in favor of either Appellant or Appellee. Specifically, those factors

were, Section 5328(a)(4), the need for stability and continuity in the child’s

education, family life and community life, Section 5328(a)(6), the child’s

relationship with siblings, and Section 5328(a)(7), the well-reasoned

preference of the child.

      The trial court weighed Section 5328(a)(4), the need for stability and

continuity   in   the   child’s   education,     family   life   and   community   life,

significantly in favor of Appellee. The trial court found as follows.

             Based on the parties’ testimony, it appears that both
             parties show stability and continuity in family life;
             however, it appears that [Appellee] offers more
             stability and continuity in the child’s education and
             community life. [Appellee] demonstrated stability in
             insuring that the child arrives to school on time and
             does not have excessive absences as compared to
             the prior years of tardies and absences when the
             child was under [Appellant]’s care. Furthermore,
             although the child is involved in activities with both
             parties, the child also is involved with her church
             under [Appellee]’s care. The child participates in her
             church by being the torch bearer and by working
             with the elderly. The court finds that by insuring the
             child arrives promptly to school, not having
             excessive absences, being involved in church
             activities by helping people[,] are lessons in life that
             the child is learning and can utilize in her future as a
             result of being under [Appellee]’s care.

Id. at 15.

      The testimonial and documentary evidence the trial court relied on in

reaching this conclusion is as follows. During Appellee’s direct examination,


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J-A10016-15


her counsel introduced H.M.S.’s report cards from kindergarten through third

grade. N.T., 9/19/14, at 23. She testified that Appellant lived five minutes

from the school that H.M.S. attended while in her primary custody, which

was from kindergarten through second grade.         Id. at 23-24.     Appellee

testified that the kindergarten report card indicated that H.M.S. had four

absences and eleven tardies; the first grade report card indicated that

H.M.S. had thirteen absences and five tardies; the second grade report card

indicated that H.M.S. had eleven absences and nine tardies. Id. at 24. The

third grade report card, when H.M.S. was in Appellee’s primary physical

custody, indicated that H.M.S. had two and one-half absences and no

tardies. Id. Nowhere in the record, however, is any evidence explaining the

reasons for H.M.S. arriving to school late, or being absent.     It is unclear

whether H.M.S. was sick, attending doctor’s appointments, had a death in

the family, etc., during these periods of time. Therefore, it is speculative to

assume these absences and tardies reflect negatively on Appellant, absent

any support in the record.

      Further, and arguably more importantly, the record indicates H.M.S.

was thriving in school under Appellant’s care.     Appellant testified that in

kindergarten H.M.S.’s school did not give grades, but in first and second

grade Appellant received mostly straight A’s, bringing home B’s only in




                                    - 17 -
J-A10016-15


math.    N.T., 9/3/14, at 56-58.9          Specifically, Appellant testified that the

grades H.M.S. received were as follows.

              Q. I’m going to show you a document which I’m
              marking P-7 for identification. Would you please
              identify this?

              A. This is [H.M.S.]’s first grade report card.

                                               …

              Q. Okay. Can you please tell the Judge the grades
              that your child had in first grade?

              A. Reading first semester, they don’t give grades.
              She got an S. And then she got an A, A, A-. English
              first semester, there was no grade. And then she
              got an A, A, A-. Spelling, there was no grade and
              then A, A, A. Mathematics was an S. Second was A-
              , B-, B.

              Q. [H.M.S.] likes school?

              A. She loves it.

              Q. I’m going to show you what I’m marking as P-8.
              Can you please tell us what P-8 is?

              A. This is [H.M.S.]’s second grade report card.

              Q. And can you please tell us her grades for grade
              two?

                                               …


____________________________________________


9
  We note that the exhibits entered at trial were not made part of the
certified record. Nevertheless, Appellant testified to the content of the
exhibits, and thus, for purposes of our review we have quoted from the trial
testimony.



                                          - 18 -
J-A10016-15


            A. Reading, A-, A-, A-, A-; English, A, A, A-, A-;
            Spelling, A, A, A, A; Math, A, B, B, A-.

            Q. Are you happy with her grades?

            A. Yes.

            Q. And this was while she was in your primary
            physical custody?

            A. Correct.

            Q. I’m now going to show you what’s been marked
            P-10 for identification and ask you to identify P-10.
            What is P-10?

            A. This was [H.M.S]’s first quarter report card from
            Wyalusing.

            Q. Now, why was she - - when was this? This was
            the first semester of what year?

            A. Of last year, third grade.

            Q. And she was in the custody of whom at that
            point?

            A. [Appellee].

                                      …

            Q. Can you please tell the Court what her grades
            were while she was in the custody of [Appellee] in
            Wyalusing?

            A. Reading was an 86, B. Math was an 88, B.
            Spelling was a 97, A. Composition was a 92, B.
            Science was an 83, C. Social Studies was a 77, D.

Id. at 56-59.   As evidenced by this testimony, the trial court’s conclusion

that H.M.S. should remain in Appellee’s care based on her attendance record

clearly fails to take into consideration the far more important issue, H.M.S.’s

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academic success under Appellant’s care. Further, the record indicates that

after H.M.S. was removed to Appellee’s custody, Appellee was not providing

Appellant with H.M.S.’s report card upon request. Id. at 42-43.

      In the same portion of her testimony, Appellant stated that despite

multiple requests to Appellee for H.M.S.’s softball schedule, Appellee

continued to ignore her requests and failed to provide her with the schedule.

Id. at 43.   Appellant’s testimony indicates that when H.M.S. resided with

her, H.M.S was involved in bowling, softball, and dance twice a week, taking

tap, jazz and ballet. Id. at 61. Appellant provided photographic evidence of

H.M.S.’s extensive trophy collection earned throughout her several seasons

in her bowling league, noting however, that last season Appellant only

received one trophy as she missed one-quarter of the season. Id. at 64

      With respect to H.M.S.’s involvement in Appellee’s church, Appellee

testified that she belongs to St. Luke’s Episcopal Church in Scranton. N.T.,

9/19/14, at 18. Appellee, upon identifying photographs of H.M.S. introduced

as exhibits, testified to the following.

             [H.M.S.] loves to help out at the church with an
             event that we have. It’s called Senior Base. It’s
             where we invite the seniors that live in the
             downtown high rises to come in. We feed them, and
             we have entertainment and door prices [sic].

Id. at 15-16. Appellant, however, also testified that when H.M.S. is in her

care every other weekend Appellant, E.P., H.M.S. and all of the other three

children attend church as a family.        N.T., 9/3/14, at 69.   Accordingly, the


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record evidence demonstrates that Appellant and Appellee are both making

sure that H.M.S. regularly attends church. Accordingly, we conclude that the

record does not support the trial court’s finding that this factor weighs in

favor of Appellee.

       Turning to the next factor, Section 5328(a)(6), the child’s relationship

with siblings, the trial court stated that “[a]lthough the tenet of custody law

is to raise siblings together, that tenet is only one factor and it is not

controlling.”     Trial Court Opinion, 11/17/14, at 27 (citation omitted).

Appellant has three biological children, as well as E.P.’s daughter, O.P., living

in her home.       H.M.S. refers to all of these children as her brothers and

sisters. N.T., 9/3/14, at 79. Additionally, H.M.S. has two biological younger

sisters, who live with H.M.S.’s biological mother, but H.M.S. believes they

are her cousins.10 Id. at 76. Appellant testified that these two children are

in the same bowling league as H.M.S., and she sees them while bowling on

Saturday mornings. Id. The trial court reasoned that H.M.S.’s “stability and

her school attendance are compelling factors which outweigh the policy of

raising H.M.S. with her cousins whom she believes are her brothers and

sisters.”11 Trial Court Opinion, 11/17/14, at 17.

____________________________________________


10
  Appellant testified that they will eventually inform H.M.S. that the girls are
her sisters.
11
  As clarified above, the opposite is actually true. The two girls the trial
court is referencing are actually H.M.S.’s biological siblings, who live with
(Footnote Continued Next Page)


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      Additionally, as to Section 5328(a)(7), the well-reasoned preference of

the child based on the child’s maturity and judgment, the trial court

concluded that although H.M.S. has expressed that she would rather live

with Appellant, “the child’s preference is an important factor to be

considered in a custody action, [but] a child’s expressed wishes are not

controlling[.]”    Id. at 19 (citation omitted); see also Cardamone v.

Elshoff, 659 A.2d 575, 583 (Pa. Super. 1995) (citations omitted).

Moreover, this Court has explained that, “[t]he weight to be given to a

child’s preference can best be determined by the judge before whom the

child appears.”        Id. (citations omitted).     In this case, the trial court

considered H.M.S.’s preference but concluded it was not determinative for

the following reasons.

             Although H.M.S. testified that she prefers to reside
             with [Appellant] and attend Wyoming Area, the [trial
             c]ourt does not believe it is in the child’s best
             interest to reside with [Appellant]. Based on the
             testimony of witnesses and parties, [Appellee] offers
             H.M.S. a more stable home environment and insures
             that she is thriving academically. When [Appellant]
             was in charge of taking H.M.S. to school from
             Kindergarten through second (2nd) grade, [Appellant]
             exhibited a consistent pattern of H.M.S. having
             excessive tardiness and absences from school. As
             the child gets older, the school subjects tend to be
             more complicated and should H.M.S. continue to
             miss school on a consistent basis, her grades would
             more than likely be je[o]p[a]rdized. Also, [Appellee]
                       _______________________
(Footnote Continued)

H.M.S.’s biological mother, but H.M.S. believes are her cousins.            N.T.,
9/3/14, at 76.



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J-A10016-15


            is insuring that [the] child thrives not only
            academically, but also spiritually by having the child
            involved in church activities and by helping the
            elderly.    Th[is] forms an appreciation of helping
            others in life.       Aside from church activities,
            [Appellee] is also permitting the child to try new
            activities such as karate and girl scouts.

Trial Court Opinion, 11/17/14, at 19. Further, the trial court acknowledged

that H.M.S. calls Appellee “Meme,” and Appellant “Mommy,” nevertheless,

the trial court concluded that Appellee “offers H.M.S. with a more stable

home environment and insures that she is thriving academically.” Id.

      After careful review, we conclude the trial court abused its discretion.

Our standard of review dictates that we must examine the record evidence

to see if the trial court’s conclusion is supported by the record. A.V., supra

at 820.     The trial court elected not to modify custody despite its

determination that Sections 5328(a)(6) and (7) did weigh in Appellant’s

favor, and to base its decision solely on weighing Section 5328(a)(4) in

Appellee’s favor. The trial court placed undue emphasis on the amount of

times H.M.S. was late to, or missed school, without any evidence that said

tardies or absences in any way affected her performance or in any way were

related to adverse parenting on the part of Appellant.      Furthermore, the

record evidence illustrated that H.M.S. was actually thriving academically

under Appellant’s care, and has had a decline in her academic performance

over the year she resided in Appellee’s care.




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      Because the trial court found only Section 5328(a)(4) in favor of

Appellee, a factor which we conclude was an abuse of discretion as the

record evidence does not support the trial court’s finding, we are constrained

to vacate the trial court’s custody order.

      Based on the foregoing, we conclude the trial court abused its

discretion when it denied Appellant’s petition for modification. See Johns v.

Cioci, 865 A.2d 932, 944 (Pa. Super. 2004).       On remand, the trial court

shall reconsider the hearing testimony from September 3rd and 19th, and if

necessary, conduct a new custody hearing.       Accordingly, the trial court’s

September 26, 2014 order is vacated, and the case is remanded for further

proceedings, consistent with this memorandum.

      Order vacated. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2015




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