J-S68045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.L.H. NOW S.L.B.                          :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellee              :
                                           :
              v.                           :
                                           :
S.E.H.                                     :
                                           :
                     Appellant             :   No. 693 WDA 2016

                       Appeal from the Order April 14, 2016
                In the Court of Common Pleas of Bedford County,
                  Civil Division at No(s): 864 for the year 2007

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED OCTOBER 20, 2016

       S.E.H. (Father) appeals from the order entered April 14, 2016, in the

Court of Common Pleas of Bedford County, which reduced his periods of

partial physical custody with respect to his son, P.H. (Child), born in

November of 2006, and awarded increased periods of primary physical

custody to Child’s mother, S.L.B. (Mother). After careful review, we affirm.

       We summarize the relevant factual and procedural history of this

matter as follows. Mother and Father are former spouses. They separated

less than a year after Child’s birth, in July of 2007, and divorced in 2010.

Currently, Mother resides with her boyfriend, J.S., and their son, H.S., who

was born in May of 2014.           Mother is a stay-at-home parent, and J.S. is

____________________________________________


* Retired Senior Judge assigned to the Superior Court.
J-S68045-16



employed as a truck driver.     Father lives about thirty miles away from

Mother and is employed as a carpenter.        He typically works during the

summer months and is laid off during the winter.

     Prior to the commencement of the current custody proceedings,

Mother exercised primary physical custody of Child pursuant to a custody

stipulation dated September 25, 2013, and entered as an order of court on

October 9, 2013. The stipulation awarded both parties shared legal custody,

and awarded Father partial physical custody every weekend during the

school year from Friday at 7:00 p.m. until Sunday at 7:00 p.m., as well as

alternating weeks during the summer. On September 17, 2014, Mother filed

a petition for modification of the prior custody order, in which she requested

that Father’s physical custody of Child be reduced to every other weekend

during both the school year and the summer. On October 22, 2014, Father

filed a counter-petition for modification of custody, in which he requested

primary physical custody of Child.

      The trial court held a series of custody hearings on February 12, 2015,

May 22, 2015, and January 15, 2016. On April 14, 2016, the court entered

the order complained of on appeal, in which it reduced Father’s partial

physical custody of Child by providing that Mother would have custody

during the second weekend of every month, and during the fifth weekend of

every month should one exist. Father timely filed a notice of appeal, along

with a concise statement of errors complained of on appeal.

      Father now raises the following issues for our review.

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     [1.] Did the trial court commit an abuse of discretion in awarding
     [] Mother primary physical custody and [] Father periods of
     partial custody, and in particular with respect to the following:

          a. In determining that Factor 1, which parent would
          best promote contact between [C]hild and other
          parent, did not favor either party;

          b. In determining Factor 2, information relating to
          child abuse or neglect, was insufficient to warrant a
          finding against either party;

          c. In determining Factor 3, parental duties
          performed, does not warrant a finding in favor of
          either party; and,

          d. In determining Factor 4, stability and continuity
          for [C]hild, favors [] Mother, rather than [] Father?

     [2.] Did the trial court commit an abuse of discretion in awarding
     [] Mother primary physical custody, thereby denying [] Father’s
     petition for modification, and indirectly the request for
     relocation, and in particular with respect to the following:

          a. In determining Relocation Factor 2, age,
          development stage and needs of the child vis-à-vis
          the impact of relocation, not to be in [C]hild’s best
          interests;

          b. In determining Relocation Factor 6, whether
          relocation will enhance the child’s general quality of
          life, does not favor either parent; and,

          c. In determining Relocation Factor 7, whether
          relocation enhances the child’s general quality of life
          relative to financial or emotional benefit and
          educational opportunity, favors [] Mother[?]




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Father’s brief at 8-9 (suggested answers omitted).1

       We consider Father’s issues 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.

____________________________________________


1
   Although this is not a relocation case, the trial court considered the
relocation factors set forth at 23 Pa.C.S. § 5337(h). It is well-settled that
moving a child from one party’s primary physical custody to another party’s
primary physical custody does not qualify as “relocation” when both parties
continue to reside in the same place. D.K. v. S.P.K., 102 A.3d 467, 472-73
(Pa. Super. 2014). In that case, this Court held that it was not improper to
consider the relocation factors where the children are required to move a
significant distance. However, it was not necessary to consider these factors
in this case where Child would only be relocating a distance of 30 miles. See
id at 476-77 (holding that in “a custody case where neither parent is
relocating, but the children stand to move a significant distance, trial
courts should still consider the relevant factors of section 5337(h) in their
section 5328(a) best interests analysis”) (emphasis added). Nonetheless, it
is apparent from the trial court opinion that no different decision would have
been made had the relocation factors not been considered, and Father thus
would not be entitled to relief. Therefore, we will not be discussing those
factors infra.




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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. § 5328(a).

     (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)
           (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.




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           (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. § 5328(a).

     Instantly, the trial court issued a thorough opinion discussing each of

the Section 5328(a) best interest factors and concluded that awarding

primary physical custody to Father would not be in Child’s best interest. The

court reasoned as follows.




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      Both homes are fit and both parents able. However, Mother’s
      relationship with her companion is of a longer duration. It would
      be painful for [Child] to form a strong bond with [] Father’s
      companion and children if that relationship is not to last. The
      present schedule affords Father a maximum amount of time
      without the child becoming dependent emotionally on his
      companion and children. Moving [Child] to a new school given
      his current success is not a positive change for him.

      Based on the above, the Court will retain the parties’
      arrangement with one exception; the Court will afford the
      Mother one weekend a month. The current school year schedule
      of no weekends with his Mother substantially interferes with her
      continuing bond with the child.

Trial Court Opinion, 4/13/2016, at 18.

      On appeal, Father takes issue with several of the trial court’s factual

findings. According to Father, the trial court abused its discretion by failing

to find that subsections 5328(a)(1), (2.1), (3), and (4) weigh in his favor.

      With respect to subsection 5328(a)(1), Father argues that he has

strived to encourage Child’s relationship with Mother. Father’s brief at 17-

19.   In contrast, Father continues, Mother does not make an effort to

encourage Child’s relationship with Father, and in fact makes it difficult for

Father to communicate with Child during Mother’s custody time by changing

her phone number and refusing to answer his phone calls. Id.

      The trial court found as follows with respect to Section 5328(a)(1).

      In the [trial c]ourt’s 2009 Memorandum it was noted “both
      parties deeply love [C]hild, but they are unwilling to support the
      role of the other parent in [C]hild’s life.” In part to address this
      and other problems involving cooperation the [trial c]ourt
      directed the parties to work with a mediator in May of 2015.
      [Mother], in her testimony, stated that while she gave [] Father
      extra time with the child, [] Father was reluctant to modify the
      schedule to afford her more time. However, it must be kept in

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      mind [] Mother’s current proposal is to reduce [] Father’s time
      by one weekend a month during the school year and desires to
      change the summer schedule from the weekly alternating
      schedule to weekends only plus vacation time. An analysis of
      these factors must also consider how the October 2, 2013,
      custody order came about. On July 4, 2013, [Mother] was
      arrested for driving while under the influence, highest rate, a
      misdemeanor, and endangering the welfare of children, a
      misdemeanor of the first degree. [Mother] was involved in an
      accident while transporting the child. [Mother] stated that she
      had been at a campsite with family members and left to pick up
      the child at a custody exchange.         While returning to the
      campsite, she lost control of the car when it skidded on loose
      gravel, and [Mother] struck the guiderail. [C]hild was seat
      belted in a booster seat and was not harmed. On July 22, 2014
      she pled guilty to DUI incapable of safe driving, and recklessly
      endangering another person. [Mother] was sentenced to not
      less than 10 days in jail to a maximum of five months. This was
      followed by 13 months [of] probation. When the arrest occurred
      [Father] agreed to allow [Mother] to retain primary custody. As
      he stated in his testimony on May 22, 2014, [sic] [Father] made
      the agreement allowing [Mother] to retain primary custody even
      though he believed [Mother] was unsafe with the child.
      However, he noted, “I got all the quality time and no support”.
      He further stated he didn’t want the child to “lose” his Mother,
      however, he also told [Mother] if she filed for support, he would
      file for primary custody.      Paragraph nine of the order of
      September 25, 2013 provided neither party was to pay support.
      In October of 2014 [Mother] re-raised her claim for support
      against [Father]. As noted, in September of 2014 [Mother] filed
      to modify custody and in October of 2014 [Father] counter
      petitioned seeking primary custody. Based on the above it does
      not appear the parties have advanced much beyond their
      position as noted in the [trial c]ourt’s Memorandum of 2009.
      Both parties are aware that [C]hild has a strong bond with the
      other parent, but both are extremely jealous of [C]hild’s time
      and each wants to have the lion’s share of [C]hild’s free time.

Trial Court Opinion, 4/13/2016, at 4-5 (citation omitted).

      After carefully examining the record in this matter, we conclude that

the trial court did not abuse its discretion.    Father testified during the



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custody proceedings that Mother recently “blocked” his cell phone, and that

he is only permitted to call and speak to Child using his landline.       N.T.,

5/22/2015, at 11, 20, 27-28.            Father reported that Mother blocked him

because “she claims that I write rough messages to her.”         Id. at 27.   On

cross-examination, counsel for Mother asked Father if he has insulted Mother

by sending her text messages describing her as “Blondie” or “a dumb

blonde.” Id. at 68-69. Father admitted, “I have called her a blonde before,”

but suggested that this statement was not necessarily meant as an insult.

Id. at 69.    At the conclusion of the testimony on that day, the trial court

ordered that Father would be permitted to call and speak to Child using his

cell phone. Id. at 87. However, the court prohibited Father from sending

Mother text messages.2 Id.

       Thus, it is clear that the trial court considered Mother’s refusal to

accept calls from Father’s cell phone when issuing the order complained of

on appeal, and that the trial court found Mother’s behavior unacceptable.

However, the record indicates that Father contributed to, if not caused,

these communication difficulties by making derogatory comments to Mother.

The court was well within its discretion when it concluded that neither parent

is adept at encouraging the other parent’s relationship with Child, and that

subsection 5328(a)(1) should not weigh in Father’s favor.

____________________________________________


2
  The trial court did not include a provision prohibiting text messages in its
final custody order.



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     Father next argues that the trial court abused its discretion by finding

that subsection 5328(a)(2.1) did not weigh in favor of either party. Father’s

brief at 19-20.   Father contends that Mother has engaged in “reckless

decision making vis-à-vis the child’s interests, safety and welfare,” as

demonstrated by an incident during which Mother drove while intoxicated

with Child in her vehicle, and was involved in an accident. Id.

     The trial court made the following findings.

     [Mother’s] DUI arrest based on an accident with the child in the
     car raises concerns the Court believed [Mother] previously
     resolved. In 2007 at about the time of the separation [Mother]
     had a DUI arrest. In the June, 2009 Memorandum in referring to
     the arrest, the [trial c]ourt stated, “However, it appears that
     [Mother] has dealt with this issue responsibly since her arrest for
     driving under the influence in September of 2007.”            [T]he
     Memorandum goes on to say … “Further it appears [Father] does
     not believe [Mother] represents a risk to [C]hild as he is satisfied
     that he and [Mother] share legal custody and [Mother] have
     physical custody fifty (50%) percent of the time.” Based on
     present events it appears the [trial c]ourt was overly optimistic
     about the state of [Mother’s] recovery and how perspicacious
     [Father’s] [sic] judgment is regarding the safety of her son. On
     the positive side, [Mother] has completed all of the programs
     required by her conviction, and it does not appear there were
     any alcohol related problems between 2007 and 2013. The issue
     was not raised in the 2012 hearings.          [Mother] is not in
     counseling for alcoholism. The evaluation she took as part of the
     DWUI process did not require counseling. [Mother] did attend
     monthly alcohol anonymous meetings for four months. Further,
     [Mother] says she stopped drinking after her arrest in July of
     2013. It should be noted the blood test of [Mother’s] alcohol
     level at the time of her arrest was a .16, which of course is
     considered a high rate. Based on the record it appears [Mother]
     understands the problem she has with alcohol except when she
     is drinking. A .16 shows a fairly high tolerance to alcohol and
     would support [] Mother drinks more than has been disclosed in
     previous [c]ourt proceedings.      It would thus appear to be


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      necessary to add a condition to the order that the Mother not
      consume alcohol while exercising custody, and to enforce this
      provision strictly.

                                          ***

      Except for the concern about the Mother’s drinking, no credible
      evidence was presented by either side concerning abuse or
      neglect of the child.

Trial Court Opinion, 4/13/2016, at 6-7 (citation omitted).

      Father’s claim fails, as it is clear that the trial court did weigh

subsection 5328(a)(2.1) in his favor. While the court did not state explicitly

that subsection 5328(a)(2.1) “weighs in favor” of Father,           the trial court

concluded that the only evidence relevant to this factor was that Mother

drove drunk with Child in the car.         Nonetheless, the trial court was not

obligated to award primary physical custody to Father based solely on this

factor.   The trial court acted within its discretion by concluding that this

factor is outweighed by the other evidence presented in this case, including

Child’s success in his current school and his need for stability.

      With respect to subsection 5328(a)(3), Father argues that the trial

court failed to weigh appropriately the significant parental duties that he

performs for Child.    Father’s brief at 20-21.     Father emphasizes that he

makes financial contributions for Child’s benefit, and that he is involved in

Child’s extracurricular activities. Id.

      The trial court made the following findings with respect to subsection

5328(a)(3).




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      [C]hild has always resided primarily with his Mother. The [trial
      c]ourt has previously found her to be [C]hild’s primary caregiver.
      Such a finding can be a substantial factor in custody cases
      especially where the child is younger. The [trial c]ourt has also
      previously found that regarding difficult issues involving [C]hild
      [] Mother’s parental practices have been “…the most consistent,
      balanced, and realistic.” Having said that, since the parties
      modified the order in 2013 to give [] Father every weekend, and
      week on week off in the summer, he has performed all parental
      duties required by his substantial periods of custody. Further,
      [Father] has been extremely consistent in exercising periods of
      custody. [C]hild participates in soccer and basketball and []
      Father is active and supports the child at his games. Further, []
      Father has enrolled [Child] in wrestling and is active with [him]
      in that pursuit. [] Father does his own housework and when his
      present companion isn’t in his home he does all the cooking. []
      Father also plays board games with his son, and roller skating,
      and [Child] enjoys doing chores where he can work with Father.
      It appears [] Mother is responsible for [C]hild’s dental and doctor
      visits. Both parents are involved with [C]hild’s school and both
      meet with his teacher.

Trial Court Opinion, 4/13/2016, at 7-8 (citations omitted).

      Thus, the trial court acknowledged that Father has performed

significant parental duties for Child during his periods of partial physical

custody. However, given that Mother has remained Child’s primary physical

custodian throughout his life, the record supports the court’s finding that this

factor should not weigh in favor of Father. Notably, the record reveals that

Mother also has been active in Child’s extracurricular activities.      Mother

takes Child to practices and attends his games. N.T., 5/22/2015, at 23-24,

26; N.T. 1/15/2016, at 65-67.      Father’s insistence on appeal that Mother

somehow neglects these activities is belied by the record.

      With respect to subsection 5328(a)(4), Father argues that he is more

stable than Mother because he has lived in the same home since Child was

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born, while Mother has changed residences several times. Father’s brief at

21-23.   Father also stresses that Mother’s current home is owned by her

boyfriend, and that Mother could be forced to leave the home at her

boyfriend’s discretion. Id.

      The trial court found as follows with respect to subsection 5328(a)(4).

      [] Mother has been with her present companion for two years,
      has resided in the Everett area continuously since 2008, and
      [Mother’s] present house is appropriate. However, she does rely
      on her companion for support as she works full time in the
      home, and the house does belong to her companion. As noted,
      the couple shares a child together and although the companion
      stated that while he and [Mother] have no current plans to
      formalize their relationship, they have never separated and are
      serious about their relationship.

      [] Father continues to reside in the former marital residence and
      that has been his home since the house was built in 2004. []
      Father has also maintained his employment as a Union
      Carpenter for many years. [Father’s] house is very adequate.
      [Father’s] relationship with his present companion is stable and
      positive but only began in August of 2015.

      Based on the above the record supports that overall the Mother’s
      home is more stable.

Trial Court Opinion, 4/13/2016, at 8-9.

      We again conclude that the trial court did not abuse its discretion.

During the custody proceedings, J.S. testified that he and Mother have not

separated at any point over the last three years, and that he anticipates that

their relationship will continue indefinitely. N.T., 1/15/2016, at 40, 48-49.

J.S. stated that he and Mother have discussed marriage, but that they have

no plans to get married within the next year. Id. at 48.



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      On May 22, 2015, Father testified that, until recently, he had a

girlfriend named M.S., and that M.S. “[o]ccasionally” resided with him at his

home.    N.T., 5/22/2015, at 6.   Father stated that M.S. no longer spends

significant periods of time at his home, because “she just went through a lot

of situations recently and we’re just working on things.” Id. By January 15,

2016, Father was no longer seeing M.S. at all, and instead presented the

testimony of his new girlfriend, K.R.     K.R. testified that she has known

Father for about five months, and that she and one or more of her daughters

have been spending the weekends at Father’s home.         N.T., 1/15/2016, at

59-60.

      Accordingly, the record supports the trial court’s finding that Mother’s

home is currently more stable than Father’s home. Father’s home life has

been disrupted by a series of fluctuating relationships, while Mother’s home

life has remained unchanged for the last three years. Critically, there was

no evidence presented during the custody proceedings which would suggest

that Mother’s relationship with J.S. is likely to end, or that J.S. will remove

Mother from his home. Father’s suggestion that Mother’s relationship with

J.S. may be unstable is mere speculation, and does not warrant reversal of

the subject custody order.

      Father has failed to demonstrate that awarding him with primary

physical custody will enhance Child’s quality of life. Child has excelled while

in Mother’s care, and it was proper for the trial court to conclude that it

should not attempt to fix what is not broken by uprooting Child and placing

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him with Father.     An award of primary physical custody to Father would

cause considerable upheaval in Child’s life, and could jeopardize his ongoing

success.

      Accordingly, because none of Father’s claims entitles him to relief, we

affirm the order of the trial court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2016




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