J-A04029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.H.E.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

K.M.P.,

                         Appellant                 No. 1396 WDA 2015


                    Appeal from the Order August 13, 2015
              In the Court of Common Pleas of Clearfield County
                     Civil Division at No(s): 2014-807-CD


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED APRIL 19, 2016

      K.M.P. (Mother) appeals from the August 13, 2015 order that awarded

R.H.E. (Father) primary physical custody of M.R.E. (Child), born in July of

2010, and partial physical custody to Mother.     The parties were awarded

joint legal custody. After review, we affirm.

      This matter began when Father filed a complaint for custody on June

3, 2014.   Up until that time, by agreement, the parties shared physical

custody of Child on an alternating week-on-week-off basis.        “However, as

the Child approached school age, because they live[d] in different school

districts, the parties [were] unable to reach a mutual agreement regarding

primary physical custody.” Trial Court Opinion and Order (TCOO), 8/13/15,

at 1. A custody hearing was eventually held before the trial court on July

15, 2015. Father testified on his own behalf, and presented the testimony of
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C.E., his wife, B.E.C., his mother, and D.P., his paternal aunt.         Mother

testified on her own behalf, and presented the testimony of Y.P., her

mother.

      In its decision, the trial court discussed the factors listed at 23 Pa.C.S.

§ 5328(a)(1) – (16), arriving at the conclusion that Father and Mother

should share legal custody of Child, but that Father should have primary

physical custody with Mother having periods of partial physical custody.

Specifically, the court ordered that during the school year, Father would

have primary physical custody with Mother having “partial physical custody

every weekend in which she is not obligated to attend military duty.” TCO at

11. “During the summer months, … Mother shall have physical custody with

the exception of the two week period in which Mother is obligated to attend

annual military training.” Id.

      Mother filed a timely appeal accompanied by a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).         She

raises the following issues for our review:

      I. Whether the trial court erred by misapplying the statutory
      factors to the evidence presented at the custody trial[?]

      II. Whether the trial court erred by granting Father primary
      physical custody of the minor Child due to a perceived
      advantage over Mother in a few of the statutory factors, when in
      fact this conclusion was not supported by the evidence presented
      at the custody trial[?]

      III. Whether the trial court erred by granting Father primary
      physical custody of the minor Child when he works away from



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      home and his schedule makes him unavailable for weeks at a
      time[?]

Mother’s brief at 4.

      When presented with child custody matters, we are guided by the

following scope and standard of review:

      [O]ur scope is of the broadest type and our standard is abuse of
      discretion. 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.           In
      addition, with regard to issues of credibility and weight of the
      evidence, this Court must defer to the trial judge who presided
      over the proceedings and thus viewed 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.

E.D. v. M.P. 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989

A.2d 32, 35-36 (Pa. Super. 2010)). Furthermore, we note that:

            The 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)).

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012).




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         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) (citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004)). Furthermore, we recognize that the Child Custody

Act (Act), 23 Pa.C.S. §§ 5321-5340, governs all proceedings commenced

after January 24, 2011. The specific factors that a court must consider are

listed at 23 Pa.C.S. § 5328(a)(1) – (16).         See E.D., 33 A.3d at 79-80

(holding that “best interests of the child” analysis requires consideration of

all section 5328(a) factors).

         To begin, we quote the court’s discussion relating to the factors that

are in controversy.

                The Court will first examine who is more likely to
         encourage and permit contact between Child and the other
         party. 23 Pa.C.S. § 5328(a)(1). The Court feels that both
         parties are open to encouraging contact between [] Child and
         the other party. In fact, up until the present time, the parties
         have been amicably sharing custody of [] Child and both parties
         have testified that they would permit frequent contact between
         [C]hild and the other party. Father has demonstrated that he is
         committed to encouraging contact between [] Child and the
         other party and her family by inviting [] Child's maternal
         grandmother to [] Child's birthday party in the past. While the
         Court feels that both parties will permit frequent and meaningful
         contact between [] Child and the other party, based on the
         evidence offered at the hearing, this Court finds that this factor
         tips in Father's favor.

              . . .



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            The Court must correspondingly consider the parental
     duties performed by both parties and which party is more likely
     to maintain a loving, stable, consistent, and nurturing
     relationship with Child. 23 Pa.C.S. § 5328 (a)(3), (9). These
     factors weigh equally for each parent. It appears to the Court
     that both parties love and care for [] Child and that both parties
     adequately perform their parental duties on behalf of [] Child
     when [] Child is in each party's respective care. Ample evidence
     was offered to indicate that both parties are involved in [] Child's
     upbringing.

           . . .

            The Court must examine which parent can better provide
     stability and continuity in the Child's education, family life, and
     community life. 23 Pa.C.S. § 5328(a)(4). [] Child has spent a
     roughly equal amount of time with each parent, to the extent
     that their schedules would permit.       [] Child appears to be
     benefitting from frequent contact with both parents. However,
     because the parents live in separate school districts, a more
     permanent custody arrangement must be reached.

           Both parents have stable careers.       This also includes
     Father's wife. Both parents appear to have established roots in
     the communities in which they live. However, Father appears to
     be able to provide a slightly more stable educational, familial,
     and community life for the Child. Father owns his home in the
     West Branch Area School District where he attended school and
     he has held the same steady employment for years. Father is
     also a volunteer coach for the wrestling team and is very
     involved in his community. This factor weighs in Father's favor.

           . . .

            Additionally, the Court must consider which party is more
     likely to attend to the daily physical, emotional, developmental,
     educational, and special needs of the Child. 23 Pa.C.S. § 5328
     (a)(10). [] Child is doing well in school and developing well
     physically, emotionally, and mentally.1 Testimony was offered to
     indicate that each parent is engaged in [] Child's educational,
     developmental, physical, and emotional needs when in their
     custody. Mother has taken a very proactive approach to []
     Child's education; and Father's work schedule permits him to be


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     available for the Child for much of the school year. On balance,
     this factor weighs equally for each parent.
           1
            No testimony [was] offered as to the educational
           benefits of one school district over the other.

           . . .

           The Court, in determining custody, also takes into
     consideration the availability of the parties' extended family and
     the child's sibling relationships. 23 Pa.C.S. § 5328(a)(5)[,] (6).
     [] Child has no siblings, however, [] Child does have extended
     family on Mother's side in the Summerville area and even more
     extended family on Father's side in the Morrisdale/Clearfield
     County area. Both extended families appear to be involved in []
     Child's life. Accordingly, this factor tips in Father's favor.

           . . .

           The Court must also examine the parties’ abilities to make
     the appropriate childcare arrangements.         23 Pa.C.S. §
     5328(a)(12).     Both parties appear to be able to make
     appropriate child care arrangements when the Child is in their
     care.

           At the custody trial, much was made of Mother's service in
     the Pennsylvania Army National Guard; particularly the
     possibility that she may or may not be deployed in the future.2
     The Court will not fault Mother, or place her at a disadvantage,
     for maintaining a career in the armed services. To the contrary,
     Pennsylvania law prohibits the consideration of a parent's
     absence due to a prior military deployment in a best interest
     analysis with respect to child custody. See 51 Pa.C.S. § 4109.
     Indeed, if the Court is statutorily prohibited from considering
     past deployments, it is certainly logical for the Court to refuse to
     consider the speculative prospect of a future deployment from its
     current analysis. In fact, testimony was offered to indicate that
     Mother has made suitable child care arrangements to attend to
     [] Child's needs while she is at work and that she has a family
     care plan, as required by the military, in place should she be
     deployed.




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           2
            It must be noted that no evidence was offered to
           suggest that Mother’s military unit is scheduled to be
           deployed at any time in the future.

           Father is also able to make appropriate child care
     arrangements. Though his work takes him away from time to
     time, he has been able to ensure that [] Child is cared for in his
     absence either by his wife, or other family members.

            The Court believes that both parents are doing their best
     to take care of Child and make sure that they have appropriate
     supervision and care during their absences. Indeed, the Court
     finds that the child care arrangements of each party are suitable.
     Thus, this factor thus weighs equivalently in favor of both
     parties.

           . . .

           The Court must also scrutinize how the location of the
     parties’ residences will affect custody of [] Child. 23 Pa.C.S. §
     5328(a)(11).     Father lives with his wife in Morrisdale, PA.
     Mother lives in Summerhill, Cambria County, PA. The parties’
     residences are approximately 70 miles apart.             Custody
     exchanges do not appear to have been a problem in the past.

           . . .

            The Court must also examine the level of conflict existing
     between the parties. 23 Pa.C.S. § 5328(a)(13). For the most
     part, the parties have been able to cooperate and effectively co-
     parent [] Child. Though there was some evidence offered at trial
     to suggest some discord between the parties, by and large, the
     parties appear to be making a mutual effort to cooperate with
     each other in the best interest of [] Child. Accordingly, this
     factor weighs equally for each parent.

TCOO at 4-9.

     In her brief, in relation to her first issue, Mother lists the section

5328(a) factors, setting forth her disagreement with the court’s conclusion

as to which factors favor which parent. Specifically, Mother contends that



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with regard to factor (1), she has been the primary caretaker and would

encourage Child’s frequent contact with Father. She also cites Father’s “lack

of routine employment hours[,]” which requires that Child be left with

various caregivers. Mother’s brief at 8. Mother also asserts that the court’s

reliance on the fact that Father invited maternal grandmother to Child’s

birthday party is an insufficient reason to favor Father under this factor.

      Although Mother acknowledges that the court weighed factor (3)

equally, she contends that Father’s unavailability on a regular basis due to

his work leaves much of the parental duties to Father’s wife. As to factor

(4), Mother contends that she has prepared and taken steps to ensure

Child’s education, while Father has not done so on a regular basis.

Therefore, Mother asserts that factor (4) should have favored her rather

than Father. Acknowledging that Child has no siblings, factor (6), and that

both parents have extended family in the area in which each lives, factor

(5), Mother takes issue with the court’s conclusion that this factor favors

Father. Mother relies on the fact that Child’s maternal grandmother works

at the school district that Child would attend if Mother was granted primary

custody, and notes that the court did not mention this fact or anything about

the maternal grandmother’s relationship with Child.

      With regard to factor (9), the court found that both parties maintain a

loving, stable environment for Child, but Mother again contends that this

factor should weigh in her favor because of Father’s work schedule, requiring

others to care for Child in his stead.    As for factor (10), which the court

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found to weigh equally between the parties, Mother asserts that she is “more

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

and special needs of [Child].”   Mother’s brief at 14.   Mother identifies her

enrolling Child in Learning Lamp Preschool, which contracts with the Forest

Hills School District for afterschool care, thus, providing Child with a

schedule to which Child has become accustomed and would continue if

Mother were awarded primary physical custody. Mother also points out that

Father and his wife work in State College, a thirty-minute trip from their

home, while her employment is situated close to Child’s school and, thus, in

case of an emergency, she would be immediately available.        As for factor

(11), Mother acknowledges that the parties live about 70 miles apart, but

emphasizes that the parties met and lived in Cambria County, that is where

Child was born, but that Father was the one who moved away from the area

when the parties separated. Again, regarding factor (12), Mother discusses

Child’s enrollment with the Learning Lamp Preschool and thus, the ability to

maintain consistency with Child’s caregivers.   She also reiterates Father’s

unavailability due to his work schedule.

      In connection with factor (13), Mother counters the trial court’s

statement that “by and large, the parties appear to be making a mutual

effort to cooperate … in the best interest of [] Child.”         TCOO at 9.

Essentially, Mother points to allegation that Father “fail[s] to answer her

telephone calls[,] … inform her of medical appointments” or advise her about

taking Child out of state for vacations. Mother’s brief at 18. Lastly, Mother

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discusses Child’s having been bitten by a dog while in Father’s custody. She

also references Father’s admission that he and his wife have “walk[ed]

around naked in [] [C]hild’s presence” and that “his wife showers with []

[C]hild.” Id. at 19.1 Thus, for all these reasons Mother asserts that “Father

did not demonstrate that he should be awarded primary physical custody of

the minor [Child].”      Id.    Rather, she claims that she “met her burden of

proof and demonstrated that primary physical custody of [] [C]hild to Mother

is warranted.” Id. at 19-20. Accordingly, Mother contends that the court

did not properly apply the sixteen custody factors.

       Essentially, Mother’s argument centers on her contention that none of

the factors in section 5328(a) favor Father, which is contrary to the trial

court’s conclusions.      In addressing each of the factors, she cites evidence

that is most favorable to her.           However, based upon our review of the

record, we conclude that the trial court not only considered all relevant

factors, but we also note that its findings are supported by the record.

Mother is basically requesting that we reject the trial court’s findings and

credibility determinations and accept the findings that she proposes.       We

cannot do so. Rather,

       [w]e 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
____________________________________________


1
 Mother acknowledges that the court ordered that neither party nor any
members of their respective households are to shower with Child. Id. at 19.



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      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.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011). Therefore, Mother’s

first issue provides her no relief.

      Mother’s other two issues also relate to the trial court’s findings and

credibility determinations, resting to a great extent on Father’s work

schedule, which Mother asserts “gave custody to [] [C]hild’s step-mother

and [Father’s] extended family….” Mother’s brief at 20. Mother claims that

the trial court did not address Father’s unavailability and for this reason

alone, its decision should be vacated. Interestingly, Father points out that

Mother does not mention that Father’s work is seasonable and that he is not

working during a four-month period during the school year (December

through March).     Furthermore, since both parents work it is obvious that

they both must rely on others to provide childcare.      Clearly, this was a

difficult decision for the trial court in that both parents are good, hard-

working people who love their Child and find themselves in a difficult

situation.   As this Court has stated “the test is whether the trial court’s

conclusions are unreasonable as shown by the evidence of record.” E.D., 33

A.3d at 76. Because we do not determine that the trial court’s conclusions

are unreasonable in light of the sustainable findings, we are compelled to

affirm the trial court’s decision. Mother has not convinced us otherwise.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




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