J-A15042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.S.L.,                                     :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellant               :
                                            :
            v.                              :
                                            :
R.A.L.                                      :           No. 269 MDA 2017

                  Appeal from the Order entered January 20, 2017
                 in the Court of Common Pleas of Luzerne County,
                        Civil Division, No(s): 13285 of 2010

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 15, 2017

      L.S.L. (“Mother”) appeals from the Order granting R.A.L. (“Father”)

sole physical and legal custody of Z.L. (“Child”), and Mother supervised

partial physical custody of Child.1 We affirm.

      In its Opinion, the trial court set forth a recitation of the protracted

procedural history, which we adopt for the purpose of this appeal.2 See Trial

Court Opinion and Order, 1/20/17, at 2-9.

      Following hearings, the trial court granted Father sole legal and

physical custody of Child.      The trial court also granted Mother supervised

partial physical custody and daily unsupervised phone contact with Child.


1
  Also pursuant to the Order, the trial court denied Mother’s Petition for
Relocation as moot based upon its award of legal and physical custody of
Child to Father.
2
  Mother and Father were married in June 2008. They each had two children
from prior relationships.   Mother and Father divorced in June 2012.
Currently, Mother lives in Sunapee, New Hampshire, and Father lives in
Kingston, Pennsylvania.
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Based upon this ruling, the trial court found no basis in law to address

Mother’s Petition for Relocation. Mother filed a timely Notice of Appeal and a

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Mother raises the following questions for our review:

      I.     Whether the [trial] court erred in applying the best interest
             of the child standard to the factors for determining custody
             per 23 Pa.C.S.A. § 5328[,] and not granting primary
             physical and legal custody to [M]other[?]

      II.    Whether the [trial] court erred in failing to apply the
             factors for determining relocation per 23 Pa.C.S.A. §
             5337[,] and not granting the relocation of [C]hild to New
             Hampshire[?]

      III.   Whether the [trial] court erred in admitting the guardian
             ad litem’s report[,] and thereafter relying upon it[?]

Mother’s Brief at 3.

      This Court’s standard and scope of review of custody orders is as

follows:

      The appellate court is not bound by the deductions or inferences
      made by the trial court from its findings of fact, nor must the
      reviewing court accept a finding that has no competent evidence
      to support it. However, this broad scope of review does not vest
      in the reviewing court the duty or the privilege of making its own
      independent determination.        Thus, an appellate court is
      empowered      to    determine    whether     the    trial  court’s
      incontrovertible factual findings support its factual conclusions,
      but it may not interfere with those conclusions unless they are
      unreasonable in view of the trial court’s factual findings; and
      thus, represent a gross abuse of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and

brackets omitted). Additionally, we have explained that




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      [o]n issues of credibility and weight of the evidence, we defer to
      the findings of the trial court[,] who has had the opportunity to
      observe the proceedings and demeanor of the witnesses. The
      parties cannot dictate the amount of weight the trial court places
      on evidence. Rather, the paramount concern of the trial court is
      the best interest of the child.         Appellate interference is
      unwarranted if the trial court’s consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion. The test is whether the evidence of
      record supports the trial court’s conclusions.

Id. (citations, paragraph breaks and brackets omitted); see also Ketterer

v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (stating that “[t]he

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.”)

(citation omitted).

      In any custody case decided under the Child Custody Act, the

paramount concern is the best interests of the child.       See 23 Pa.C.S.A.

§§ 5328, 5338; see also W.C.F. v. M.G., 115 A.3d 323, 326 (Pa. Super.

2015). In assessing the child’s best interest, the trial court must consider

the seventeen custody factors set forth in 23 Pa.C.S.A. § 5328(a). W.C.F.,

115 A.3d at 326. Section 5328(a) provides as follows:

      § 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:




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       (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.

       (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, education 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.


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         (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.

      “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 omitted). Moreover,

section 5323(d) mandates that, when the trial court awards custody, it “shall

delineate the reasons for its decision on the record in open court or in a

written opinion or order.” 23 Pa.C.S.A. § 5323(d). The trial court may not

merely rely upon conclusory assertions regarding its consideration of the

section 5328(a) factors in entering an order affecting custody.       M.E.V. v.

F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014). However, “[i]n expressing

the reasons for its decision, there is no required amount of detail for the trial

court’s explanation; all that is required is that the enumerated factors are

considered and that the custody decision is based on those considerations.”

A.V., 87 A.3d at 823 (citation and quotation marks omitted).




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      In her first claim, Mother contends that the trial court should have

granted her legal and physical custody of Child. Mother’s Brief at 9. Mother

argues that the trial court erroneously applied the factors set forth in section

5328. Id. at 9-10. Specifically, Mother challenges the trial court’s findings

under subsections (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13),

and (15). Mother’s Brief at 11-27.

      With regard to subsection (1), Mother asserts that the trial court erred

in finding that Father was best suited to encourage contact between Child

and the other parent.       Id. at 11.    Mother claims that the trial court

incorrectly found that her request for relocation was an attempt to limit

contact between Child and Father. Id. Mother further claims that the trial

court failed to consider Father’s attempts to limit her contacts with Child.

Id. at 11, 12.

      With regard to subsection (3), Mother claims that the trial court

erroneously found that both parties were capable of providing for the needs

of Child, and should have weighed this factor in favor of Mother. Id. at 12.

Mother argues that in her limited capacity to parent Child, she has provided

Child with clothes.   Id.   Mother asserts that while Father has performed

some parental duties, he relies on babysitters to supervise Child. Id. at 13.

Mother further asserts that Father has failed provide a proper car seat for

Child, and has dressed Child inappropriately on occasion. Id.




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      With regard to subsection (4), Mother argues that the evidence does

not support the trial court’s finding that this factor weighs in favor of Father.

Id. Mother asserts that while the trial court pointed to numerous filings by

Mother concerning Child’s education and family life in weighing this factor in

favor of Father, it did not consider Father’s filings. Id. at 13, 15. Mother

points out that Father failed to provide her with any information involving

Child’s activities, education, or health.    Id. at 13.   Mother further asserts

that the trial court failed to consider her frequent trips from New Hampshire

to see Child.     Id.     Mother additionally claims that there were abuse

allegations made against Father. Id. at 14-15.

      With regard to subsections (5) and (6), Mother asserts that the trial

court erred in finding these factors to be neutral between the parties, and

should have found that the factors weigh in favor of Mother. Id. at 15-16,

17. Mother points out that Child would live with Child’s brothers if she lived

in New Hampshire. Id. at 16. Mother claims that Father failed to present

any   evidence,   other   than   his   own   testimony,   demonstrating   Child’s

relationships with his family members. Id. at 17.

      With regard to subsection (7), Mother contends that the trial court’s

finding that Child loved both parents was illogical in light of its ultimate

conclusion. Id. Mother argues that her alleged behavior did not have such

a negative impact on Child’s relationship with Father that she was prevented

from having unsupervised contact with Child. Id. Mother also asserts that



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the trial court should have given more weight to Child’s testimony that she

wanted to spend more time with Mother and attend school in New

Hampshire. Id. at 18.

      With regard to subsection (8), Mother contends that the trial court

relied on evidence that is not relevant to this case. Id. Mother argues that

the only relevant issue raised by the trial court was Mother’s accusation that

Father could not properly care for Child. Id. at 18-19. Mother again claims

that the mere filing of a request for relocation does not evidence her intent

to limit contact between Father and Child. Id. at 19.

      With regard to subsection (9), Mother asserts that the trial court erred

in finding that this factor weighs in favor of Father based solely upon

negative actions by Mother. Id. at 19-20.

      With regard to subsection (10), Mother argues that the trial court’s

finding that both parents are able to attend to the daily needs of Child was

erroneous. Id. at 20. Mother asserts that there were legitimate concerns

regarding Child’s car seat and Father’s inattention to Child’s health care

needs.   Id. at 20-22; see also id. at 21 (wherein Mother argues that

Father’s allegations that Mother takes Child on too many unnecessary doctor

appointments is not supported by the record). Mother claims that Father did

not adequately deal with Child’s bullying concerns at school and cannot

name any of Child’s friends.   Id. at 21.    Mother additionally argues that

Father did not present any evidence of Child’s life, and does not exhibit an



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understanding of the value of Mother’s presence in Child’s home life. Id. at

20, 22-23.    Mother contends that the trial court merely emphasized her

actions without considering Father’s negative impact on Child. Id. at 23, 24.

      With regard to subsection (11), Mother argues that the trial court

erred in finding that this factor weighs in favor of Father based solely on the

fact that she voluntarily moved to New Hampshire.         Id. at 24.    Mother

asserts that the trial court failed to consider any of the reasons she moved

to New Hampshire, including to care for her elderly mother and the fact that

her two sons have established educational and social lives in that state. Id.

      With regard to subsection (12), Mother contends that the trial court’s

conclusion that her move to New Hampshire prevented her from making

child care arrangements was illogical. Id. at 24-25, 26. Mother argues that

the evidence demonstrated that she could provide care for Child when she is

not in school. Id. at 25. Mother further claims that Father allows Child to

“amuse herself” while he works and uses a large variety of babysitters. Id.

      With regard to subsection (13), Mother claims that the trial court erred

in weighing the factor in favor of Father. Id. at 26-27. Mother argues that

the trial court improperly relied upon prior decisions in the case to find that

she was at fault for the animosity between the parties. Id. at 26. Mother

contends that she undertook various actions to protect Child. Id. at 27.

      With regard to subsection (15), Mother claims that contrary to the trial

court’s finding that it needed more information about Mother’s mental state,



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she presented evidence indicating that she was receiving treatment from two

separate counselors. Id.

        In its Opinion, the trial court set forth the relevant testimony from the

hearings; found that Mother was non-responsive and evasive during her

testimony; addressed the best interests of Child, including an analysis of the

best interest factors; and determined that it was appropriate to award

Father sole legal and physical custody of Child. See Trial Court Opinion and

Order, 1/20/17, at 10-24, 29. We decline Mother’s invitation to disturb the

trial court’s findings and weighing of the evidence, in favor of the findings

and inferences that Mother proposes. See M.J.M. v. M.L.G., 63 A.3d 331,

337 (Pa. Super. 2013) (rejecting appellant/mother’s argument asking this

Court to reconsider the trial court’s findings and credibility determinations

with regard to the best interest factors); see also C.A.J. v. D.S.M., 136

A.3d 504, 506 (Pa. Super. 2016) (stating that “[w]e defer to the trial [court]

regarding credibility and the weight of the evidence.”). Further, our review

of the record reveals that the trial court’s findings of fact and cogent analysis

are supported by the record. See C.A.J., 136 A.3d at 506 (stating that this

Court     cannot   reweigh    the   evidence      supporting   the   trial   court’s

determinations so long as there is evidence to support the findings).

Therefore, we conclude that the trial court did not abuse its discretion, and

we defer to its custody decision.            See Trial Court Opinion and Order,

1/20/17, at 10-24, 29; see also A.V., supra (stating that “[a]ppellate



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interference is unwarranted if the trial court’s consideration of the best

interest of the child was careful and thorough, and we are unable to find any

abuse of discretion.”).

      In her second claim, Mother contends that the trial court erred by

failing to apply the relocation factors at 23 Pa.C.S.A. § 5337. Mother’s Brief

at 28. Mother argues that a review of the factors would have led the trial

court to grant relocation. Id. at 29-32.3

      Here, the trial court ordered that, because Father retained both legal

and physical custody of Child, “there is no reason or basis in law for the

court to address [] Mother’s Petition for Relocation.” Trial Court Opinion and

Order, 1/20/17, at 25. We discern no abuse of discretion, as the issue of

relocation became moot based upon the fact that Child would not be moving

and would continue to reside in Pennsylvania.     See, e.g., D.K. v. S.P.K.,

102 A.3d 467, 472 (Pa. Super. 2014) (noting that the relocation provisions

set forth in section 5337 must be addressed where a change in residence of

the child affected the non-relocating parent’s ability to exercise custodial

rights).




3
  We note that with regard to some of the factors listed in section 5337,
Mother incorporates her argument from the first issue on appeal. See, e.g.,
Mother’s Brief at 30, 32. It is well-settled that incorporation by reference
does not constitute a properly developed argument. See Hrinkevich v.
Hrinkevich, 676 A.2d 237, 241 (Pa. Super. 1996); see also
Commonwealth v. Briggs, 12 A.3d 291, 342–343 (Pa. 2011).



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     In her third claim, Mother contends that the trial court erred in

admitting and relying upon the guardian ad litem’s report. Mother’s Brief at

32, 36, 37-38.      Mother argues that the report primarily reiterates

information that had been established in prior proceedings and was thus

irrelevant. Id. at 33-35. Mother further argues that even if the report was

relevant, it was cumulative of other evidence and should not have been

given any weight by the trial court. Id. at 35, 37. Mother also claims that

the guardian did not conduct an extensive and thorough investigation prior

to producing the report as required by 23 Pa.C.S.A. § 5334. Mother’s Brief

at 36-37.

     Here, Mother failed to raise this claim in her Rule 1925(b) Concise

Statement. Thus, the claim is waived on appeal. See Ramer v. Ramer,

914 A.2d 894, 902 (Pa. Super. 2006) (concluding that mother’s claim in a

custody case was waived on appeal because it had not been raised in her

Rule 1925(b) statement); see also Pa.R.A.P. 1925(b)(4)(vii).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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