J-A07022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M.S.                                   :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 D.R.                                   :   No. 1819 MDA 2019

              Appeal from the Order Entered October 3, 2019
    In the Court of Common Pleas of Lackawanna County Civil Division at
                         No(s): 2014-FC-40889


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.:                           FILED APRIL 22, 2020

      Appellant, M.S. (“Mother”), appeals from the October 3, 2019 Order

entered in the Lackawanna Court of Common Pleas that ordered A.C. (“Child”)

to attend school in the Dunmore Area School District (“Dunmore”), where D.R.

(“Father”) lives, during the 2020-2021 school year. After careful review, we

affirm.

      The relevant factual and procedural history is as follows. Mother and

Father were never married and are parents to Child, who was born in June

2014. Mother is a registered nurse who has an older daughter from a previous

relationship. Father is a registered nurse who is currently married to M.R.

(“Stepmother”), and they have three younger children together.

      Soon after Child’s birth, Mother filed a Petition for Custody.      In

September 2015, after numerous filings and a hearing before a Master, the

parties filed a Stipulated Agreement. The Agreement granted both parents
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shared legal custody, Mother primary physical custody, and Father partial

physical custody for approximately eight overnight visitations and two evening

visits per month.1

       In 2016, Father filed two Petitions for Custody seeking 50/50 physical

custody of Child. After considering Mother’s Answers and holding a hearing,

the trial court denied Father’s Petition but, in the Order, “encouraged” parties

to agree to a schedule of custody that increased Father’s periods of partial

physical custody by an additional two to four overnights per month. Order,

01/12/16.

       Most relevant to this appeal, on January 16, 2019, Father filed a Petition

for Modification of Custody and Special Relief requesting that the trial court

award Father 50/50 shared physical custody of Child and order parents to

enroll Child at Dunmore, where Father resides, for kindergarten during the

2020-2021 school year.          Mother filed an Answer, a Counter-Petition for

Modification of Custody, and a Counter-Petition for Special Relief, which

opposed Father’s request for 50/50 shared custody, and requested that the

court order the parents to enroll Child in the Valley View School District

(“Valley View”) during the 2019-2020 school year, to attend kindergarten a

year earlier than Father’s request.


____________________________________________


1 In any given month, during weeks 1 and 3, Father had partial physical
custody of Child overnight from Tuesday evening until Thursday morning, and
during weeks 2 and 4, Father had partial physical custody on the weekends
and Tuesday evenings.

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       Prior to a hearing, the parties came to an agreement regarding custody

of Child. On March 18, 2019, the parties filed a Stipulated Custody Order

which increased Father’s partial physical custody to include an additional four

overnight visits with Child per month. Specifically, the Order granted Father

partial physical custody of Child every Tuesday evening through Thursday

morning, and on alternating weekends.

       However, the parties failed to come to an agreement regarding Child’s

schooling. On June 13 and July 18, 2019, the trial court held a hearing on

Father’s Petition for Special Relief, and Mother’s responses.2, 3 The trial court

heard testimony from Father; Stepmother; Nathan Barrett, a school

superintendent who testified as an educational expert; Mother; and Douglas

Klopp, a school principal who testified as an educational expert.

       In sum, Father testified that he believed it was in Child’s best interest

to attend Dunmore because Child’s three younger half-siblings would attend

Dunmore, Stepmother is a teacher at Dunmore high school, Child has twenty

cousins that attend Dunmore, Child has numerous adult family members that

____________________________________________


2 Prior to the July 18, 2019 hearing, the parties came to an agreement that
Child would not attend Kindergarten until the 2020-2021 school year, but still
disagreed about where Child should attend school.

3 At the July 18, 2019 hearing, the Honorable Carmen Minora recused from
the case because Mother’s counsel recently began working at a law firm where
Judge Minora’s brother currently works. The parties agreed that Judge Minora
would hear the testimony and then transfer the case to another judge to make
the decision.



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are employed by Dunmore. N.T Hearing, 6/13/19, at 113-18. Stepmother

testified that Child is very close with her younger half-siblings and that she

believed it was very important for the siblings to attend school together,

experience the same teachers, and be involved in the same extracurricular

activities. Id. at 126-130. Mr. Barrett testified that Dunmore and Valley View

were comparable school districts overall, but that Dunmore had slightly higher

ratings in some areas.    Id. at 25, 31-45.     He testified that, in his expert

opinion, it was in Child’s best interest to attend Dunmore partly because Child

will have siblings and family there, and Child would receive a high level of

support from family at Dunmore. Id. at 25, 31-45.

      Mother testified that she believed it was in Child’s best interest to attend

Valley View because most of the friends that Child made in daycare and

preschool will be attending Valley View, Child’s older half-sister attends ninth

grade at Valley View, and Mother is a graduate of Valley View. Id. at 73, 77,

79.   Mr. Klopp testified that Dunmore and Valley View were “only slightly

different” but that “[i]f you look at performance from the students, and that

is what’s in black and white, Dunmore [] does not do as good of a job as Valley

View [].” N.T. Hearing, 7/18/19, at 24, 28.

      On October 3, 2019, the trial court issued an Order and Opinion, which

ordered Child to attend school in Dunmore beginning in the 2020-2021 school

year. Id. at 25, 31-45.

      Mother timely appealed. Both Mother and the trial court complied with

Pa.R.A.P. 1925.

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      Mother raises the following issues on appeal:

      1. Did the trial court abuse its discretion and commit an error of
         law in failing to place its reasoning regarding 23 Pa.C.S. §
         5328(a) in its written opinion?

      2. Did the trial court abuse its discretion and commit an error of
         law in determining that [Child] attend [Dunmore] as Appellant
         has primary physical custody of [Child]?

      3. Did the trial court abuse its discretion and commit an error of
         law in the weight given to [Child] and [Child]’s half-siblings
         attending school in the same district?

      4. Did the trial court abuse its discretion and commit an error of
         law in its determination that [Child]’s sibling relationships,
         specifically sharing in certain events, extracurricular activities
         weight heavily in favor of [Child] attending the Dunmore Area
         School District?

      5. Did the trial court abuse its discretion and commit an error of
         law in failing to consider all the evidence and testimony?

      6. Did the trial court abuse its discretion and commit an error of
         law in failing to consider all factors [that] effect upon [Child]’s
         physical, intellectual, moral and spiritual well-being?

Mother’s Br. at 6 (reordered for ease of disposition).

      “We review a trial court's determination in a custody case for an abuse

of discretion, and our scope of review is broad.” S.W.D. v. S.A.R., 96 A.3d

396, 400 (Pa. Super. 2014). We will not find an abuse of discretion “merely

because a reviewing court would have reached a different conclusion.” In re

K.D., 144 A.3d 145, 151 (Pa. Super. 2016) (citation omitted).              Rather,

“[a]ppellate courts will find a trial court abuses its discretion if, in reaching a

conclusion, it overrides or misapplies the law, or the record shows that the

trial court’s judgment was either manifestly unreasonable or the product of



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partiality, prejudice, bias or ill will.” Id. This Court must accept the findings

of the trial court that the evidence supports, and defer to the trial judge

regarding credibility and weight of the evidence. S.W.D., 96 A.3d at 400.

“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.” Id.

      It is well settled that “[t]he paramount concern in child custody cases is

the best interests of the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018).

“The best-interests standard, decided on a case-by-case basis, considers all

factors which legitimately have an effect upon the child’s physical, intellectual,

moral and spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super.

2017).

      The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court

to consider all of the Section 5328(a) best interests factors when “ordering

any form of custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the

reasons for its decision when making an award of custody either on the record

or in a written opinion.” S.W.D., 96 A.3d at 401. See also 23 Pa.C.S. §

5323(a), (d).

      However, not every decision by a trial court in a custody case involves

an award of custody. S.W.D., 96 A.3d at 402. This Court has held that there

is no statutory requirement for an analysis of the Section 5328(a) custody

factors when the trial court decides a “discrete and narrow issue ancillary to a

materially      unchallenged     custody     arrangement.”            M.O.     v.


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J.T.R., 85 A.3d 1058, 1059 (Pa. Super. 2014).        Undoubtedly, a trial court

must consider a child’s best interest when ruling upon issues that are ancillary

to the custody arrangement. Id. at 1063 n.4. “But[,] our statutes require

neither a consideration of all sixteen factors nor delineation of the court's

rationale on the record unless the ruling awards custody or modifies an award

of custody.” Id.

      In her first issue, Mother avers that the trial court abused its discretion

when it failed to address the Section 5328 custody factors in its written

Opinion. Mother’s Br. at 2. Mother argues that the trial court ordered a form

of custody when it ordered: “All other Orders not inconsistent with this Order

shall remain in full force and effect.”     Mother’s Br. at 25 quoting Order,

10/3/19. This argument lacks merit.

      In S.W.D., a case directly on point, this court held that a trial court was

not required to consider and apply the Section 5328(a) custody factors when

the court decided where a child should attend school, without changing the

form of legal custody. 96 A.3d at 403–04. This court reasoned, “[w]hile the

choice of where a child will attend school is not trivial and certainly is a major

life decision, the court's decision here merely resolved an impasse between

the parties who shared the legal right to make this decision. Stated another

way, the trial court merely arbitrated a dispute between Mother and Father

regarding schooling, instead of granting one of them the right to make that

decision.” Id.


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        Instantly, Father filed a Petition for Modification of Custody and Special

Relief, requesting both increased partial physical custody and a decision

regarding Child’s schooling.     Prior to a hearing on the Petition, the parties

reached an agreement regarding custody, and filed a Stipulated Order

increasing Father’s periods of partial physical custody.         See Stipulated

Custody Order, 3/19/19. Consequently, at the hearing on Father’s Petition,

the parties only introduced evidence regarding Child’s schooling, including

where Child should attend school and whether Child should proceed to

Kindergarten or repeat preschool.       During the course of the hearing, the

parties agreed that Child should remain in preschool and begin Kindergarten

at the start of the 2020-21 school year. Accordingly, the only decision before

the trial court was whether Child should attend school at Dunmore or Valley

View.

        The trial court issued an Order that compelled the parties to enroll Child

at Dunmore when appropriate and ordered prior consistent custody orders to

remain in effect. We reject Mother’s argument that the trial court ordered a

form of custody. Because the trial court “merely resolved an impasse between

the parties who shared the legal right to make this decision” rather than

granting one party sole legal custody to make the decision, the trial court was

not required to engage in an analysis of the Section 5328(a) custody factors.

See S.W.D., 96 A.3d at 403–04. Accordingly, we find no abuse of discretion.




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      In her second issue, Mother asserts that the trial court abused its

discretion when it determined that Child should attend Dunmore, when

Mother, Child’s primary custodian, resides in Valley View. Mother’s Br. at 21-

22. Mother argues that because she is Child’s primary custodian, and she

never entered into a custody agreement for Child to attend school at Dunmore,

Child should attend school at Valley View. Id. We disagree.

      Both the Pennsylvania Code and the Public School Code make it clear

that a trial court can order a child to attend school in a district where a parent

having partial physical custody resides.      See 22 Pa. Code. § 11.11(a)(1)

(stating that when divorced parents live in separate school districts, “the child

may attend school in the district of residence of the parent with whom the

child lives for a majority of the time, unless a court order or court

approved custody agreement specifies otherwise.”) (emphasis added);

24 P.S. § 13-1305(a) (stating that when a nonresident child is placed in the

home of a resident of any school district by court order, the child is entitled

to all free school privileges in that district as if they were a resident) (emphasis

added). Therefore, Mother’s argument fails, and the trial court did not abuse

its discretion when it ordered Child to attend Dunmore, where Father resides.

      In her third and fourth issues, Mother argues that the trial court abused

its discretion when it placed too much weight on the fact that Child’s half-

siblings will be attending Dunmore in the future, and made findings that Child

and siblings will be able to experience the same extra-curricular activities


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without support in the record. Mother’s Br. at 27, 32. Upon review of the

record, we find no abuse of discretion.

      The trial court opined:

      The record is clear that [Valley View] and [Dunmore] are fairly
      comparable. Additionally, the proximity of the schools to the
      parents’ homes are similar. The main consideration for this
      Court’s decision is the best interest of [Child]. This [c]ourt
      believes that the [Child]’s sibling relationships plays an important
      role in determining what school district [Child] should attend. This
      [c]ourt is aware that [Child] has an older sibling in Mother’s home,
      who although could be in the same school district, that child is
      much older than [Child] and will never be in the same physical
      school building with [Child]. [Child]’s three siblings at Father’s
      residence will be attending school in Dunmore. Since the parties
      came to a stipulation that [Child] will not start kindergarten until
      next school year, [Child] and [Child]’s sibling at Father’s residence
      will only be one year apart in school. This [c]ourt believes that
      [Child]’s sibling relationships, specifically sharing in certain school
      events, extracurricular activities and attending school in the same
      physical building, weigh heavily in favor of [Child] attending
      [Dunmore]. Additionally, [Child] has numerous relatives who
      either work or attend school in [Dunmore]. [Child] also has
      relatives who work at [Valley View] and Mother’s friends who work
      at the school and/or have children who attend the school.
      Nevertheless the relatives who work and/or attend [Dunmore]
      together with [Child]’s sibling relationships weigh in favor of
      [Child] attending school in [Dunmore].

Trial Ct. Op., filed 10/3/19, at 4-5. Our review of the record supports the trial

court’s findings. We decline to usurp the trial court’s credibility determinations

or reweigh the evidence. Accordingly, we find no abuse of discretion.

      In Mother’s last two issues, she contends that the trial court failed to

consider all of the evidence and testimony, and failed to consider all of the

factors that have an effect on Child’s best interest. Mother’s Br. at 33. Mother

argues that the trial court failed to consider that Child will have to wake up


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earlier and have a longer commute to attend Dunmore, and that Valley View

is a better school according to the PA Future Read Index. Mother’s Br. at 48-

50.

      Our review of the record belies Mother’s claims.        As demonstrated

above, the trial court did consider the proximity of the schools to each parent’s

homes and the school’s ratings as presented to the court by each educational

expert. See Trial Ct. Op., filed 10/3/19, at 4. The trial court made findings

that Valley View and Dunmore were “fairly comparable” schools and that “the

proximity of the schools to the parents’ homes are similar.” Id. The trial

court placed great weight on the fact that Child’s three younger siblings will

be attending Dunmore, and determined that attending the same school would

be in Child’s best interest. Id. Once again, this Court will not reweigh the

evidence. Accordingly, we find no abuse of discretion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/22/2020




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