J-A14010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


J.R.B.                                      :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                    Appellant               :
                                            :
                                            :
              v.                            :
                                            :
                                            :
D.G.G.                                      :   No. 2186 MDA 2015


             Appeal from the Order Entered November 16, 2015 in
               the Court of Common Pleas of York County Civil
                    Division at No(s): 2013-FC-001675-03


BEFORE: BOWES, OTT, PLATT*, JJ.

MEMORANDUM BY BOWES, J.:                                 FILED JULY 21, 2016

         Appellant, J.R.B. (“Father”), appeals from the November 16, 2015

custody order granting him primary physical custody during the school year,

partial physical custody during the summer, and shared legal custody with

respect to the male children, B.B., born in January 2006, and A.B., born in

November 2009. Upon careful review, we affirm.

         We summarize the relevant factual and procedural history as follows.

B.B. and A.B. were born during the marriage of Father and D.G.G.

(“Mother”).    Upon separating in May or June of 2014, Mother relocated to

Sparks, Maryland.      N.T., 10/21/15, at 13-14; Stipulation of Facts, at 1.

Father remained in the marital home in Jacobus, Pennsylvania, a driving

distance     from   Mother’s    home   of   approximately   thirty-five   minutes.



*Retired Senior Judge assigned to the Superior Court.
J-A14010-16



Stipulation of Facts, at 1, 3 (unpaginated).    The parties agreed, without

court intervention, to share physical custody equally, on a schedule of three

days one week and four days the following week. N.T., 10/21/15, at 13, 47;

Stipulation of Facts, at 2 (unpaginated). In addition, the parties agreed that

B.B. would attend elementary school in the Dallastown School District,

where Father resides, and A.B. would attend the Goddard School in Sparks,

Maryland. Stipulation of Facts, at 2 (unpaginated).

      On June 10, 2015, Mother filed a custody complaint.      Father filed a

counterclaim on July 25, 2015.      Following a conciliation conference, by

interim order dated August 4, 2015, the trial court granted the parties

shared legal custody, Father primary physical custody during the school

year, and Mother partial physical custody three weekends per month. The

court granted the parties shared physical custody on an alternating weekly

basis during the summer.

      On October 13, 2015, Mother filed a petition for contempt, wherein

she asserted that Father unilaterally enrolled B.B. in a basketball league in

Dallastown, Pennsylvania, which held two games every weekend.         Petition

for Contempt, 10/13/15, at ¶ 6. Father filed an answer and counter petition

for contempt on October 20, 2015, wherein he asserted, inter alia, that

Mother unilaterally enrolled B.B. and A.B. in rock climbing in Maryland during

her custodial periods. Answer and Counter Petition, 10/20/15 at ¶ 21.

      The trial court held a hearing on the custody and contempt matters on

October 21, 2015. By that date, B.B. and A.B. attended separate schools in

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the Dallastown School District.        Stipulation of Facts, at 1-2 (unpaginated).

B.B. was in the fourth grade.           Id.     A.B. was in kindergarten.       Id. at 2

(unpaginated).

       Mother testified on her own behalf,1 and she presented the testimony

of her sister, L.H., and her mother, C.M.G. (“Maternal Grandmother”).

Father testified on his own behalf.2 In addition, the trial court interviewed

B.B. in camera in the presence of the parties’ counsel.

       By order dated November 16, 2015, and entered on November 17,

2015, the trial court granted the parties shared legal custody, Father

primary physical custody during the school year, and Mother partial physical

custody three weekends per month, from Friday at 4:00 p.m. until Monday

morning before school.         The trial court granted Mother primary physical

custody during the summer, and Father partial physical custody on

alternating    weekends.        Further,       the   court   granted   the   parties   two




____________________________________________


1
  Mother requested partial physical custody three weekends per month
during the school year, from Friday after school until Monday morning, and
primary physical custody during the summer. N.T., 10/21/15, at 48.
2
 Father requested that Mother have partial physical custody two weekends
per month during the school year, from Thursday afternoon until Tuesday
morning, and that the parties share physical custody during the summer on
an alternating weekly basis. N.T., 10/21/15, at 165.




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nonconsecutive,      uninterrupted      weeks    of   physical   custody   during   the

summer. In addition, the court set forth a holiday schedule.3

       Father timely filed a notice of appeal and a concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(a)(2)(i) and (b). The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on January 12, 2016.

       Father presents the following issues for our review:

       I. Did the trial court commit an abuse of discretion and/or err by
       making inconsistent rulings on the relevance and admissibility of
       evidence?

       II. Did the trial court commit an abuse of discretion and/or err in
       completely disregarding competent and credible evidence?

       III. Did the trial court commit an abuse of discretion and/or err
       in its ruling on evidence that was not presented during
       testimony[?]

       IV. Did the trial court commit an abuse of discretion and/or err
       by strictly limiting the parties’ time to present their case to the
       court, as well as allowing one party more time than the other
       party?

       V. Did the trial court commit an abuse of discretion and/or err in
       failing to properly consider the well[-]reasoned preference of the
       child based on the child’s maturity and judgment, pursuant to 23
       Pa.C.S. § 5328(a)(7)?



____________________________________________


3
  The trial court placed its findings on the record in open court at the
conclusion of the testimonial evidence. The court found both parties in
contempt of the interim order. See N.T. 10/21/15, at 255-256. However,
the court did not impose sanctions against them.



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J-A14010-16


      VI. Did the trial court commit an abuse of discretion and/or err
      in failing to hear and consider evidence Father wished to offer?

Father’s brief at 9-10.

      Our scope and standard of review is as follows.

         [T]he 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.

      R.M.G., Jr. v. F.M.G., 2009 PA Super 244, 986 A.2d 1234, 1237
      (Pa.Super. 2009) (quoting Bovard v. Baker, 2001 PA Super
      126, 775 A.2d 835, 838 (Pa.Super. 2001)). Moreover,

         [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.

      R.M.G., Jr., supra at 1237 (internal citations omitted). The test
      is whether the evidence of record supports the trial court’s
      conclusions. Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d
      533, 539 (Pa.Super. 2006).

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


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         The primary concern in any custody case is the best interests of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa.Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa.Super. 2004).

         Child custody actions are governed by the Child Custody Act (“Act”),

23 Pa.C.S. §§ 5321-5340. Trial courts are required to consider “[a]ll of the

factors listed in section 5328(a) . . . when entering a custody order.” J.R.M.

v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original). This

statutory section 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:

               (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)(1)
             and (2) (relating to consideration of child abuse and
             involvement with protective services).




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J-A14010-16


           (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.

          (15) The mental and physical condition of a party or
         member of a party’s household.

           (16) Any other relevant factor.

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J-A14010-16



23 Pa.C.S. § 5328(a).

     We have further explained as follows.

     Section 5323(d) provides that a trial court “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). Additionally,
     “section 5323(d) requires the trial court to set forth its
     mandatory assessment of the sixteen [§ 5328 custody] factors
     prior to the deadline by which a litigant must file a notice of
     appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa.Super. 2013),
     appeal denied, 70 A.3d 808 (Pa. 2013). . . .

     In 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.” M.J.M.
     v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied,
     [620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of
     reasons for its decision, which adequately addresses the relevant
     factors, complies with Section 5323(d). Id.

A.V., supra at 822-823.

     Instantly, the trial court considered the § 5328(a) custody factors and

delineated the reasons for its decision on the record in open court at the

conclusion of the testimonial evidence. See N.T., 10/21/15, at 241-256. In

its Rule 1925(a) opinion, the court addressed the errors asserted by Father

in his Rule 1925(b) statement. See Trial Court Opinion, 1/12/16.

     We note that the trial court determined it was “without sufficient

information” to address Father’s first, second, third, and sixth assertions.

Id. at 2-4.   Father presents precisely the same assertions in his first,

second, third, and sixth issues in his statement of questions involved in his

brief. We agree with the trial court that these issues are vague such that it

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J-A14010-16


was unable to identify them and/or have any basis in which to respond to

them.     Therefore, we deem Father’s first, second, third, and sixth issues

waived.      See Reinert v. Reinert, 926 A.2d 539 (Pa.Super. 2007)

(overbroad and imprecise issue in Pa.R.A.P. 1925(b) statement and on

appeal results in waiver of issue because it fails to identify in concise manner

the issue to be pursued).

        Turning to his fourth issue on appeal, Father baldly asserts that there

was a “disparity in time allowed” for the parties to present their cases, with

Mother being afforded more time. Father’s brief at 23. Importantly, Father

fails to assert what amount of time the parties were given to present their

cases, and/or what amount of additional time Mother was allotted.4

        As best that we can discern, Father argues the trial court abused its

discretion and/or erred by not allowing him to present additional testimony,

thereby failing to create a complete record.      Father cites to this Court’s

decision in Lloyd v. Lloyd, 889 A.2d 1246 (Pa.Super. 2005), wherein we

affirmed the order denying the father’s petition for modification of the

custody order. In doing so, we rejected the father’s argument that the court

erred in denying his motion in limine to preclude the testimony of the expert

whom he retained to perform a custody evaluation.
____________________________________________


4
  The transcript does not reflect the amount of time given to the parties to
present their cases. In its Rule 1925(a) opinion, the trial court stated that
Father, in fact, was given more time than Mother to present his case. Trial
Court Opinion, 1/12/16, at 3.



                                           -9-
J-A14010-16


       During Father’s direct examination, the following exchange took place:

            [THE COURT]: Counsel, I will tell you that you have 10
       more minutes, and then it’s [Mother’s counsel’s] turn for 15
       minutes, and then I’ll speak to the children.

             [FATHER’S COUNSEL]: [Mother’s counsel] had two and a
       half hours this morning.

             [THE COURT]: He took two hours, and you are now into
       your second hour this afternoon. I do keep track.

              [FATHER’S COUNSEL]: Will I be able to have more time
       after the 15 minutes?

              [THE COURT]: I’m telling you that you have until quarter
       of 3, and then [Mother’s counsel] has 15 minutes left of his time,
       and then I’m supposed to speak to the children at 3:00.

             If we have more time after that, I can allot it, but . . .
       we’re lacking in judicial resources. . . . I am booked every day.

             [FATHER’S COUNSEL]: I understand. I would like [Father]
       to respond to some of the allegations that have been made.

              [THE COURT]: Okay.

N.T., 10/21/15, at 185-186.

       As such, Father’s counsel inquired of the trial court whether she will

“have more time” after opposing counsel’s cross-examination of Father.

However, Father’s counsel did not request additional time nor object when

the court stated that it would allot more time if any was available after B.B.’s

in camera interview.5 For this reason, we conclude that Father’s fourth issue

____________________________________________


5
 We note that Father filed a pretrial memorandum on August 18, 2015,
wherein he listed as witnesses the parties and their children, B.B. and A.B.
(Footnote Continued Next Page)


                                          - 10 -
J-A14010-16


is waived. See In re S.C.B., 990 A.2d 762, 767 (Pa.Super. 2010) (citation

omitted) (stating, in part, “[i]n order to preserve an issue for appellate

review, a party must make a timely and specific objection at the appropriate

stage of the proceedings before the trial court. Failure to timely object to a

basic and fundamental error will result in waiver of that issue”).

      In his fifth issue, Father argues that the trial court abused its

discretion and erred in failing to properly consider B.B.’s custody preference

pursuant to 23 Pa.C.S. § 5328(a)(7).             Specifically, Father argues that the

court ignored B.B.’s “wishes to be with his Father. . . .” Father’s brief at 24.

We disagree.

      This Court has explained:

      Although the express wishes of a child are not controlling in
      custody decisions, such wishes do constitute an important factor
      that must be carefully considered in determining the child’s best
      interest. The weight to be attributed to a child’s testimony can
      best be determined by the judge before whom the child appears.
      The child’s preference must be based upon good reasons and his
      or her maturity and intelligence must also be considered.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (internal

quotations and citations omitted).

      The trial court found as follows on the record in open court:


                       _______________________
(Footnote Continued)

At the time of the hearing, Father’s counsel requested, and Mother’s counsel
agreed, that A.B. be excused from testifying. N.T., 10/21/15, at 4. In any
event, Father did not request to present any additional testimony during the
hearing.



                                           - 11 -
J-A14010-16


      [B.B.] does enjoy spending time with [both] his parents. We
      note he would like to spend more time with his father, but during
      the time that he has on the weekends with his father, he mostly
      spends that time with his friends.

      He also does not want to lose time with his mother. . . .

      We do not find that [B.B.]’s preference really favors either party,
      as he does want to remain in the Dallastown School District at
      this time.

N.T., 10/21/15, at 247.

      Further, the court explained in its Rule 1925(a) opinion:

      The [c]ourt found that the child expressed an interest in
      spending time with both parents, and further stated that he did
      not want to lose any time with [Mother]. [Father] has primary
      physical custody of the children, and there is no credible reason
      to limit [Mother’s] time further. While the child presented as
      coached by [F]ather, he stated to the [c]ourt that when he
      spends time with [Father] on the weekends, he spends much of
      that time playing with friends. The well-reasoned preference of
      the child was to spend time with both parents, and the [c]ourt
      gave his preference the appropriate weight in evaluating all of
      the factors outlined in the Custody Act.

Trial Court Opinion, 1/12/16, at 5.

      B.B., then ten years old, testified as follows on inquiry by the trial

court:

      Q. What kind of things do you do with your dad on the
      weekends?

      A. Well, we’re with -- I’m with my dad on one weekend a month
      at the beginning, and on Friday nights we go to synagogue. And
      it depends. . . . I try to hang out with my friends sometimes
      because, you know, most of them are close by, closer than [at]
      my mom’s, and it gives me a chance to, like, hang out and see
      them.




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J-A14010-16


       Q. How important is it to you to continue to go to Dallastown
       School?

       A. I mean, at the beginning I really, like, I didn’t care, but, like,
       this year I’m liking the intermediate school a lot, and I want to
       stay there now because, you know, I’m in the -- I’m in the
       seminar program and I’ve made a lot more friends.

       ....

       Q. Do you have some thoughts on [the custody schedule]?

       A. I want to see my dad more on the weekends, but then I
       would -- if I were to have, like, one more weekend a month with
       my dad, then I would only see my mom four days a month, so, I
       mean, if I would, like, have one or two weekdays with my mom
       sometimes and maybe another weekend with my dad, that
       would be nice.

       Q. Okay. How about in the summer?

       A. In the summer we did week-on, week-off, and I like that. I
       think that is fair.

N.T., 10/21/15, at 232-233, 239.

       We conclude that B.B.’s testimony supports the court’s findings

regarding his custody preference. Further, based upon the entirety of the

testimonial evidence in this case, we discern no abuse of discretion by the

court in the weight it placed upon his custody preference in fashioning its

custody order. As such, Father’s fifth issue fails.6

____________________________________________


6
  In addition, Father baldly asserts that the trial court “did not extend to
[him] the same scope of discretion in the questioning of Father regarding
what the children told him regarding their wishes and what they want, as
was extended to [Mother].” Father’s brief at 24. We conclude that Father
has waived this issue by not setting it forth or suggesting it in his statement
(Footnote Continued Next Page)


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J-A14010-16


      Upon careful review, we discern no abuse of discretion by the trial

court in concluding that, “[n]o credible evidence was presented that there

was any reason to further limit [Mother’s] time with the children, and we see

no reason to do so. The form of custody in this matter is in the best interest

of the children, and to afford more custodial time to [Father] as he has

requested would, in effect, deprive [Mother] of any meaningful custodial

time to spend with her children.” Trial Court Opinion, 1/12/16, at 4-5. As

such, we conclude that the testimonial evidence supports the trial court’s

factual findings, and that the custody award is reasonable in light of those

findings. Accordingly, we affirm the order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




                       _______________________
(Footnote Continued)

of questions involved in his brief. See Krebs v. United Refining Company
of Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that any
issue not set forth in or suggested by an appellate brief’s statement of
questions involved is deemed waived).



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