J-S80040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.D.H., JR.                                :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                                           :
               v.                          :
                                           :
M.H.                                       :
                                           :
                     Appellant             :   No. 1245 MDA 2016

                     Appeal from the Order Entered July 1, 2016
                    in the Court of Common Pleas of York County
                     Civil Division at No(s): 2055-FC-001269-03


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                            FILED JANUARY 03, 2017

       Appellant, M.H. (“Mother”), appeals, pro se, from the order dated June

28, 2016, and entered on July 1, 2016, in the Court of Common Pleas of

York County, dismissing Mother’s petition to modify custody of her younger

daughter, M.F.H.,1 and making the interim order dated May 12, 2016, and

entered May 13, 2016, a final order. After review, we affirm.

       The trial court summarized the relevant procedural and factual history,

in part, as follows:

             The parties were before this Court for a custody trial on
       March 3, 2016. On March 21, 2016, this [c]ourt entered an
       Opinion and Order directing Father to have sole legal custody
       and primary physical custody with Mother having rights of partial
       physical custody. On April 1, 2016, Defendant, Mother, filed a
____________________________________________


1
 While Mother and J.D.H., Jr. (“Father”) have an older daughter, as well, the
order in question only involves their younger daughter.
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       Petition to Modify Custody. A conciliation conference was held
       on May 5, 2016, and on May 12, 2016, an Interim Order for
       Custody, Pending Trial was entered, which in essence reaffirmed
       the March 21, 2016[ ] Order with changes as agreed upon by the
       parties. A Custody Pretrial was held on July 1, 2016,[2] in which
       this [c]ourt found there was no substantial change in
       circumstances since the entry of the prior March 21, 2016[ ]
       Order so as to require reconsideration of the custody issue.
       Therefore, this [c]ourt issued an Order directing the Interim
       Order for Custody, Pending Trial dated May 12, 2016, be the
       final order for custody.

Trial Court Opinion, 7/27/2016, at 1-2.

       On July 22, 2016, Mother, pro se, filed a timely notice of appeal, along

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

Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Mother essentially avers that the

trial court’s order of March 21, 2016, was based upon false information. 3,      4



Mother’s Brief at 1 (unpaginated).

       Our standard of review with regard to a custody matter is well-settled:

              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,
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2
  Upon review of the record, while the order entered subsequent to the pre-
trial conference was entered on July 1, 2016, the conference was held on
June 28, 2016.
3
  Although Mother’s brief may not be in conformity with Pennsylvania Rules
of Appellate Procedure 2111, et seq., as we find the gist of Mother’s
argument comprehensible, and as Father failed to even file a responsive
brief, we decline to dismiss Mother’s appeal.
4
  Mother, in fact, requests this Court review the custody matter going back
to August of 2014. Mother’s Brief at 1 (unpaginated).



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

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


     “When a trial court orders a form of custody, the best interest of
     the child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396 (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).

E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).

     Section 5328(a) provides as follows:

     (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.




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

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

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

          (5) The availability of extended family.

          (6) The child’s sibling relationships.

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

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

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

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

          (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.

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              (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).

       This Court has further explained as follows:

       When deciding a petition to modify custody, a court must
       conduct a thorough analysis of the best interests of the child
       based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
       A.3d 73, 80 (Pa. Super. 2011). “All of the factors listed in
       section 5328(a) are required to be considered by the trial court
       when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
       652 (Pa. Super. 2011) (emphasis in original). . . . The record
       must be clear on appeal that the trial court considered all the
       factors. [E.D., supra at 81.]

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).5


       In March 2016, a trial was held to resolve this custody dispute.      On

March 21, 2016, at the conclusion of the trial and after meeting with the

child, the trial court issued a detailed opinion setting forth its best interest

analysis. See Trial Court Opinion, 3/21/16, at 2-9. The July 1, 2016 order

incorporates the March 21, 2016, order with the exception of two agreed

upon amendments, thus Mother purports to challenge the court’s initial

____________________________________________


5
  We have clarified that the Section 5328(a) factors are not required to be
addressed where the modification does not impact the form of or type of
custody, such as where the court is dealing with a discrete and ancillary
issue. See S.W.D. v. S.A.R., 96 A.3d 396, 401-03 (Pa. Super. 2014); M.O.
v. J.T.R., 85 A.3d 1058, 1062-64 (Pa. Super. 2014)




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custody order. However, we have held in the context of an order for support

that “a petition to modify . . . cannot be a substitute for a notice of appeal”

or “an attempt to relitigate matters adjudicated in the existing . . . order.”

Florian v. Florian, 689 A.2d 968, 971-72 (Pa. Super. 1997) (citing

Crawford v. Crawford, 633 A.2d 155, 164 (Pa. Super. 1993)); see also

Boullianne v. Russo, 819 A.2d 577, 580 (Pa. Super. 2003); Koller v.

Koller, 481 A.2d 1218, 1220 (Pa. Super. 1984); Dunbar v. Dunbar, 435

A.2d 879, 881 (Pa. Super. 1981).

       Here, it appears that the trial court found analogously that Mother was

using the instant petition to modify as a means to dispute its March 21, 2016

order. The court stated, “Defendant stated the information, testimony and

evidence submitted to the [c]ourt during the custody trial was false. . . .

This [c]ourt found Defendant was seeking modification of the custody Order

as a means to refute and relitigate what was presented at the custody trial.”

Trial Court Opinion, 7/27/16, at 2-3 (citation to Notes of Testimony

omitted).6 With this, we agree. Mother’s sole challenge to the custody order

is that the evidence presented in the March 2016 trial was false. However,

as Mother is challenging the credibility findings of the trial court, her claims

are without merit.      See V. B. v. J.E.B., 55 A.3d at 1197 (“with regard to



____________________________________________


6
  We note that the Notes of Testimony for the June 28, 2016 pre-trial
conference were not included as part of the certified record.



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issues of credibility and weight of the evidence, we must defer to the

presiding trial judge who viewed and assessed the witnesses first-hand”.)

     Mother utilized the instant petition to modify custody, filed less than

two weeks later, as a means to challenge the March 21, 2016 order. This is

not permissible. Florian, 689 A.2d at 971-72. Mother failed to avail herself

of her right to appeal the order of March 21, 2016, and instead employed

the petition to modify, in essence, as a substitute for an appeal of that

order.   Accordingly, we affirm the order of the trial court, dismissing

Mother’s petition to modify and further making the interim order dated May

12, 2016, and entered May 13, 2016, a final order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




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