J-S05002-16


                                   2016 PA Super 40

C.A.J.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

D.S.M.,

                            Appellee                  No. 1264 MDA 2015


                  Appeal from the Order Entered June 25, 2015
              In the Court of Common Pleas of Cumberland County
                        Civil Division at No(s): 2013-154


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

OPINION BY BENDER, P.J.E.:                        FILED FEBRUARY 18, 2016

        Appellant, C.A.J. (“Mother”), appeals from the order entered on June

25, 2015, modifying custody and granting Mother and Appellee, D.S.M.

(“Father”), shared legal and physical custody of minor child, G.M. (“Child”).

After careful review, we vacate the order and remand to the trial court for

proceedings consistent with this opinion.

        The trial court summarized the relevant facts and procedural history of

this case in its Pa.R.A.P. 1925(a) opinion, as follows:

               Mother and Father are the parents of one minor child, []
        born June [] 2012. Mother originally filed a complaint for
        custody and special relief on January 1, 2013.       Following
        conciliation, the parties reached an agreement and a Custody
        Order was entered on January 31, 2013 (hereinafter “2013
        Order”). The 2013 Order gave Mother primary physical custody
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     with Father having custody every other weekend during the
     months of September through May 1. From May 1 through
     September 1, the parties were to share custody 50/50 on a week
     on/week off basis.

           Prior to the 2013 Order, Mother and Father shared custody
     as mutually agreed upon. Earlier in January 2013, before the
     2013 Order was entered, Mother relocated to New Kensington,
     Pennsylvania. As the courts were not involved, Mother did not
     seek permission to relocate.

           Father filed a pro se Petition for Contempt on February 17,
     2015. In his petition, Father alleged that Mother was not giving
     Child back when it was Father’s time. Father also requested that
     he be given primary care of Child in the petition. This Court
     ordered the parties to attend a custody conciliation.

           The custody conciliation was held on March 19, 2015.
     Neither party was represented by counsel at the conciliation. At
     the conciliation, Father requested that the parties share custody
     on an alternating bi-weekly schedule due to the distance
     between the parties’ residences. The parties were not able to
     reach an agreement on custody and requested a hearing before
     the court on outstanding custodial issues. On March 31, 2015, a
     temporary custody order was entered pending the court hearing
     on Father’s Petition for Contempt.

           The hearing on Father’s Petition for Contempt was held on
     June 24, 2015, with both parties present. Father testified that
     Mother violated the 2013 Order by refusing him custodial time
     and harassing him.        Father stated the most recent event
     occurred on December 23, 2014, when Mother came to his
     residence demanding he return Child, even though it was his
     time. Thereafter, Mother kept Child the entire month of January
     and Father did not see Child until February 6, 2015. Father
     indicated he made contact with Mother through text message
     during January with no response until February 6.        Mother
     responded by testifying that Father also denied her access to
     Child and will not let her speak to Child on the phone.

           It became apparent at the hearing that neither party
     followed the 2013 Order. Father and Mother would keep Child
     for extended periods of time and exchange custody when it was
     convenient for them and not when the 2013 Order dictated.
     Therefore, Father indicated at the hearing that he wanted the
     custody order changed to a two weeks on, two weeks off

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      schedule, because for all practical purposes Mother and Father
      were already sharing time on an equal basis.           Father also
      presented the testimony of his girlfriend, Angela Small. She
      testified that she lives with Father along with her two sons, ages
      12 and 5. She stated that Child has a good relationship with her
      sons and they enjoy spending time together. Mother testified
      she wanted to retain primary physical custody with Father
      having custody every other weekend. She indicated that the
      50/50 custody the parties had over the summertime was not
      working.

            Following the hearing, on June 25, 2015, this Court
      entered a new custody order (hereinafter “2015 Order”). The
      2015 Order granted shared physical custody to both Father and
      Mother for a two week on, two week off period. Along with the
      custody order, this Court also issued an order detailing its
      analysis of the best interests of Child and discussed the relevant
      custody factors.

Trial Court Opinion (TCO), 8/6/15, 1-4 (footnotes omitted).

      On July 24, 2015, Mother filed a timely notice of appeal and Pa.R.A.P.

1925(b) statement of errors complained of on appeal. Mother now presents

the following issues for our review:

      I.    Did the trial court err and abuse its discretion in modifying
            the prior custody order when a custody modification
            petition had not been filed but instead only a petition for
            contempt had been filed?

      II.   Did the trial court abuse its discretion in applying the
            custody factors found in 23 Pa.C.S. § 5[3]28 and in
            determining the best interests of the child?

Mother’s Brief at 6 (unnecessary capitalization omitted).

      We review a trial court’s determination in a custody case for an
      abuse of discretion, and our scope of review is broad. Because
      we cannot make independent factual determinations, we must
      accept the findings of the trial court that are supported by the
      evidence. We defer to the trial judge regarding credibility and
      the weight of the evidence. The trial judge’s deductions or
      inferences from its factual findings, however, do not bind this


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       Court. We may reject the trial court’s conclusions only if they
       involve an error of law or are unreasonable in light of its factual
       findings.

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

       Mother argues that she was denied due process when the trial court

entered its June 25, 2015 order modifying the 2013 custody order, because

Father only filed a petition for contempt, not a petition to modify custody.

Mother contends that before a court can modify a custody order, the filing of

a petition to modify custody is required, pursuant to Section 5338 of the

Domestic Relations Code.1

       While we agree that, generally, the appropriate manner in which to

request modification of a custody order is to file a petition for modification in

compliance with Pa.R.C.P. 1915.15, we have previously stated that “this

does not prevent the trial court, under appropriate circumstances to alter a

custody/visitation Order when it is in the best interest of the child to do so.”

Guadagnino v. Montie, 646 A.2d 1257, 1262 (Pa. Super. 1994) (quoting

Choplosky v. Choplosky, 584 A.2d 340, 341 (Pa. Super. 1990)). In fact,

we recently emphasized:

       While it is the appropriate practice under the Act and the Rules
       of Civil Procedure to file a pleading entitled a “petition to modify
       custody” to seek modification of a custody order, this Court has
       held nonetheless, that if notice of the proceeding adequately
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1
  See Section 5338, which provides, in relevant part: “Upon petition, a
court may modify a custody order to serve the best interest of the child.” 23
Pa.C.S. § 5338(a). See also Pa.R.C.P. 1915.15, which governs the format
for a petition to modify a custody order.



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       advises a party that custody will be at issue, a court may
       entertain the request to permanently modify a custody order
       after hearing in that proceeding.

S.W.D., 96 A.3d at 405-406 (Pa. Super. 2014) (citing Guadagnino, 646

A.2d at 1262) (emphasis added).2

       In Guadagnino, we examined the law regarding the procedure by

which a change in custody can be requested.          At the time, there were

numerous cases in which trial courts modified custody agreements at

contempt hearings without a pending petition for modification, which

ultimately led to remand on appeal, so that the proper procedure for

requesting a custody modification could be followed.3 However, in each of

these cases, there was no notice that the custody order would be at issue

during the contempt hearing. Guadagnino, 646 A.2d at 1262.
____________________________________________


2
  In S.W.D., the father filed a petition for special relief which focused
primarily on where the child would attend school, but also included a request
to enforce an informal custody modification to which the mother and father
had agreed. Contrary to the trial court’s belief in S.W.D., we explained that
even though the pleading filed was not entitled a “petition for modification,”
the trial court would not have abused its discretion by modifying the custody
order, should it have deemed a modification to be in the best interest of the
child, because the mother had been provided adequate notice that custody
would be at issue at the hearing. S.W.D., 96 A.3d at 406.
3
  See Choplosky, 584 A.2d at 341-342 (holding that while modification of
custody orders may be entertained at any time in order to promote the best
interests of the child, general notice requirements must be strictly
observed). See also Seger v. Seger, 547 A.2d 424, 426 (Pa. Super. 1988)
(finding that the trial court lacked authority to modify custody order absent
the filing of a petition for modification); Steele v. Steele, 545 A.2d 376,
378 (Pa. Super. 1988) (stating that the filing of a petition for modification is
the appropriate manner in which to seek a change in a custody or visitation
order).



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       The facts in Guadagnino were distinguishable from these cases, in

that there was adequate notice to the parties that the custody order would

be challenged.      Id.    In Guadagnino, a custody order had been entered

granting the mother and father shared physical custody of the child.

However, the father filed a petition for contempt and claimed that the

mother obstructed transfer of custody and was, generally, confrontational.

In addition to requesting that the mother be found in contempt, the father’s

petition also included a request for an order granting him primary physical

custody of the child. Id. at 1258.        On appeal, we stated the following:

       Here, the trial court had before it the request that custody be
       transferred, and conducted the “contempt” hearing accordingly;
       the hearing was tailored to the issues at hand. We do not find it
       necessary, therefore, to remand for reinstatement of the original
       custody order so that another hearing can be held on the
       petition for modification of custody; such action would result in a
       waste of judicial resources.

Id. at 1262.

       Similarly, in the case before us, Father’s Petition for Contempt

expressly stated that he was seeking primary custody.4 Accordingly, upon

receipt of Father’s Petition, the court entered an order directing the parties

to appear before a conciliator on March 19, 2015 for a “Pre-Hearing Custody

Conference.” The order further directed the parties “to furnish any and all

existing … Custody orders to the conciliator 48 hours prior to scheduled
____________________________________________


4
   See Father’s Petition for Contempt at ¶ 25 (stating “[Father] wants
primary care of [Child]”).



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hearing.” Order of Court, 2/18/15. Additionally, the record indicates that

the February 18, 2015 order was served on Mother and that Mother

participated in the custody conciliation by telephone.      Thus, Mother was

clearly on notice that the 2013 custody order was at issue.     As pointed out

by the trial court in its 1925(a) opinion:

      [At the custody conciliation,] the parties discussed custody but
      were unable to reach an agreement. The conciliation report also
      details both parties’ positions with regard to custody of the child.
      Furthermore, the conciliation report states:

          7. As the parties requested a hearing before the [c]ourt on
          the outstanding custodial issues, the conciliator submits an
          Order in the form as attached scheduling a hearing and
          providing for temporary custodial arrangements which
          were agreed upon by the parties, pending the hearing.

      Thereafter, the [c]ourt hearing was held on June 24, 2015, with
      both parties having notice custody would be discussed as they
      had requested at the conciliation. At the hearing, both parties
      were present and offered their positions on custody. Based on
      the best interest of Child and after consideration of the custody
      facts, this [c]ourt modified the prior custody order.

TCO at 6-7 (internal footnotes omitted).

      Mother argues that the trial court violated her due process rights,

relying on the decision in Langendorfer v. Spearman, 797 A.2d 303 (Pa.

Super. 2002), where this Court concluded that the father’s due process

rights were violated when the trial court granted the mother’s petition for

contempt and modified custody, because the father had no notice that

custody would be at issue in the proceedings. In Langendorfer, this Court

stated:




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      Without notice to the parties that custody was at issue, the trial
      court could not assume that the parties had either sufficiently
      exposed the relevant facts or properly argued their significance.
      Consequently[,] neither we nor the trial court can make an
      informed, yet quintessentially crucial judgment as to whether it
      was in the best interests of the child involved to give sole legal
      and physical custody to the mother.

Id. at 309 (quotation marks and citations omitted) (emphasis added).

Oddly, Mother reproduces the following portion of the Langendorfer opinion

in support of her argument:

      In the instant case, Mother’s petition for contempt in no way
      implicates custody, i.e., she did not request any change in
      custody. Furthermore, the order to appear received by the
      parties from the court that scheduled the contempt hearing did
      not notify the parties that custody was at issue. … Moreover, the
      transcript of the hearing reveals that only the contempt petition
      was before the court.

Mother’s Brief at 10 (quoting Langendorfer, 797 A.2d at 308-309)

(emphasis added).

      Based on our review of relevant case law, we conclude that if the

parties had notice that custody would be at issue, the court is permitted to

modify custody without a pending petition for modification.           Mother’s

reliance on Langendorfer is misplaced, as the facts in the instant case are

easily distinguishable.   First, in the case before us, Father’s petition

expressly states that he is requesting physical custody, thereby placing

Mother on notice that the custody order was at issue.          Additionally, in

response to the filing of Father’s petition, the court ordered Mother to appear

at a custody conciliation.    Finally, our review of the transcript of the




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contempt hearing reveals that the issue of custody was the focus of the

hearing.

     Based on the foregoing, we conclude that Mother had proper notice

custody would be at issue at the contempt proceeding.           Accordingly, we

discern no abuse of discretion by the trial court in its modification of the

2013 custody order.

     We now address Mother’s second issue as to whether the trial court

properly applied the custody factors listed in 23 Pa.C.S. § 5328 in

determining the best interests of Child.     As we stated in A.V. v. S.T., 87

A.3d 818 (Pa. Super. 2014):

     Section 5328 [of the Custody Act] provides an enumerated list of
     sixteen factors a trial court must consider in determining the
     best interests of the child … when awarding any form of custody:

           §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.

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


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           (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.

           (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).

Id. at 821-822 (emphasis added).



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      Mother avers that the trial court erred in not fully delineating its

reasons on the record or in an opinion for its modification of the 2013

custody order. Mother’s Brief at 17. After careful review, we agree.

      We explained in S.W.D. that:

      The Act requires a court to consider all of the § 5328(a) best
      interest factors when ordering any form of custody. Sections
      5323(a) and (d) reinforce this mandate by requiring a court to
      delineate the reasons for its decision when making an award of
      custody either on the record or in a written opinion. Mere
      recitation of the statute and consideration of the § 5328(a)
      factors en masse is insufficient. A trial court’s failure to place its
      reasoning regarding the § 5328(a) factors on the record or in a
      written opinion is an error of law. Accordingly, in C.B.[ v. J.B.,
      65 A.3d 946 (Pa. Super. 2013)], when the trial court merely
      stated that it had considered the § 5328(a) factors, we held that
      the trial court’s on-the-record explanation was insufficient under
      the statute. Similarly, in M.P.[ v. M.P., 54 A.3d 950 (Pa. Super.
      2012)], we found error where the trial court listed the § 5328(a)
      factors but failed to apply them.

S.W.D., 96 A.3d at 401-402 (internal citations and quotation marks

omitted).

      In the case at bar, the trial court entered a new custody order on June

25, 2015, granting shared physical custody to Father and Mother.               Along

with the custody order, the court also issued an order listing the following

reasons in support of its custody modification:

      1. Both parties are likely to encourage and permit frequent and
         continuing contact between [] Child and each other.

      2. Both parties have adequately performed parental duties for []
         Child.

      3. In as much as [] Child is only 3 years old and is not yet
         enrolled in school, this is the best time for the parents to
         share custody equally. Obviously, once [] Child is enrolled in

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         school, given the significant distance between the parents’
         homes, [] Child will obviously have to have primary custody
         with one of the parents during the school year.

      4. [] Child does have significant sibling relationships with the
         Father’s girlfriend’s two children who live in Father’s home.

      5. Both parties are capable of maintain a loving, stable and
         consistent and nurturing relationship with [] Child.

      6. Father resides in Enola, Pennsylvania and Mother in New
         Kensington, Pennsylvania which is near Pittsburgh. Given this
         significant distance between the parents’ homes, minimizing
         exchanges will financially benefit both parties.

      7. Both parties have shown their ability to provide for
         appropriate child care arrangements when they are working.

      8. The level of conflict between Mother and Father is significant.
         They do not communicate well. Accordingly, having a set
         50/50 schedule minimizes the amount of communication
         these parents have to have with each other.

Order of Court, 6/25/15.

      Based on our review of the record, it is evident that the trial court

considered approximately half of the statutorily mandated factors in making

its decision to modify custody. However, the court is required to consider all

of the section 5328(a) factors when entering a custody order. See J.R.M. v.

J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011).        Here, the list of reasons

provided by the trial court fails to make any mention to the following

mandated factors:    the present and past abuse committed by a party or

member of the party’s household; the availability of extended family; the

well-reasoned preference of the child, based on the child’s maturity and

judgment; the attempts of a parent to turn the child against the other

parent; which party is more likely to attend to the daily physical, emotional,


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developmental, educational and special needs of the child; the history of

drug or alcohol abuse of a party or member of a party’s household; and the

mental and physical condition of a party or member of a party’s household.

See 23 Pa.C.S. § 5328(a).      Moreover, some of the section 5328(a) factors

which are addressed by the court lack any in-depth analysis. Accordingly,

we are constrained to conclude that the trial court committed an error of law

by failing to properly assess all of the section 5328(a) factors.

      For the foregoing reasons, we vacate the 2015 custody order and

remand for preparation of an opinion and order specifically addressing all the

factors enumerated under 23 Pa.C.S. § 5328(a) on the issue of physical

custody. The trial court must issue its opinion and order within 30 days of

the date on which the certified record is returned.

      Order vacated.      Case remanded with instructions.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




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