J-A27038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 L.E.S.                                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 W.C.D.                                  :
                                         :
                   Appellant             :   No. 1917 EDA 2018

                Appeal from the Order Entered June 7, 2018
   In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                              2014-FC-1127


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED JANUARY 14, 2019

      W.C.D. (“Father”) appeals from the order modifying custody and

awarding L.E.S. (“Mother”) primary custody during the school year of J.C.D.

(“Child”), born September 2013. Father argues that the record does not

support the trial court’s factual findings and that the trial court abused its

discretion in applying the custody factors. 23 Pa.C.S.A. § 5328. We affirm.

      On August 27, 2014, L.E.S. filed a Complaint for Primary Physical

Custody. In October 2018, the trial court entered a final custody order

awarding Mother primary custody and Father partial custody. On January 27,

2016, Father filed Petition for Special or Emergency Relief and a Petition for

Modification because Mother faced criminal charges for driving under the

influence of alcohol (“DUI”) and recklessly endangering Child when she left

Child unsupervised. Child was in Father’s custody pursuant to a temporary

protection from abuse order. In February 2016, the trial court entered a final
J-A27038-18



order awarding Father primary custody and awarding Mother supervised

partial custody.

        In June 2016, Mother filed an Emergency Petition to Modify Existing

Custody Order.1 On July 27, 2016, the court entered a final order granting

Father primary custody and granting Mother supervised partial custody until

the week of August 22, 2016, after which Mother would have unsupervised

partial custody.

        On December 27, 2017, Mother filed a Petition for Modification of the

Custody Order. The trial court held a hearing on May 23, 2018.

        Mother testified that she lives with her fiancé, with whom she has been

in a relationship for almost two years, and that she works at the Brick Tavern

in Quakertown. N.T., 5/23/18, at 8, 14. Mother has been diagnosed with

bipolar disorder, for which she sees a psychiatrist once every two months and

a psychologist once every two weeks. Id. at 12. She has been prescribed

lithium, and has not had any issues due to this diagnosis in the past two and

a half years. Id.

        Mother testified that she was arrested in January 2016 for DUI after

abusing her prescription medications, and, at the time of this DUI, she had

left Child at home unsupervised. Id. at 13, 69. She pled guilty to DUI and

reckless endangerment. Id. at 13, 72-73. Mother entered rehab shortly after

her arrest, id. at 76, was subject to random screenings, has been drug and

____________________________________________


1   Mother also filed a Petition for Contempt, which she later withdrew.

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alcohol free since the DUI, and has successfully completed supervision. Id. at

13-14. Mother also has a prior conviction for credit card fraud. Id. at 69, 72.

      Mother testified that M.R. (“Maternal Grandmother”), as well as Mother’s

brother and grandparents live near her. Id. at 14. Her mother provides

childcare and her brother and his girlfriend occasionally help. Id. at 15.

Mother’s grandparents and her aunt and uncle have also offered to assist with

childcare. Id. at 16.

      Mother resides in the East Penn School District, has investigated the

elementary school, and has researched sports and other activities for Child.

Id. at 18-19. She discussed how she spends her time with Child, including

playing in the house with puzzles and games, walking to the park, and going

to the library. Id. at 21. She also testified regarding Child’s eating habits, bath

time routine, and bedtime routine. Id. at 23-24.

      Mother testified that Child told her that Father took him to the dentist,

but that the insurance company called her and informed her that Child was

overdue for a physical. Id. at 25. Mother has not spoken with Father about

Child’s medical appointments. Id. at 66. Mother also testified that when Father

drops off Child, Child’s fingernails are dirty, his hair is oily, and he does not

smell clean. Id. at 26.

      Mother testified regarding Father’s communication with her. She stated

that when Child is with her, and he asked to call or text Father, Mother did so.

Id. at 41. Father does not contact Mother when Child is in Father’s custody,

and Father does not answer the phone when Mother calls. Id. at 41-42. Mother

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further testified that there was a fire at Father’s home that she did not learn

about until approximately three days after Father and Child had been

displaced. Id. at 36. She learned about the fire from Facebook, and, when

Mother called, Father provided limited details about the fire and about the

fire’s effect on Child. Id. at 37-39. Mother also testified that Father requested

a FaceTime conversation in November 2017 to discuss some behavioral

problems Child was having. Id. at 51. Mother provided the dates and time of

her availability. Id. Father said he would speak with his girlfriend, but never

responded with his availability. Id. Mother did not follow up after she did not

hear from Father. Id. at 52.

      Father and Mother live two hours away from each other, but Father

works ten minutes from Mother’s home. Id. at 45. When Child is to return to

Father on a Saturday, Father picks him up from Mother’s home. Although

Father does work some Sundays, he only allowed Mother to drop Child at his

work on one Sunday. Id. at 42-43. Father has insisted that Mother drive Child

to Carlisle, reasoning that Child has a playdate or must be back by Child’s

bedtime. Id. at 43.

      Father also testified at the hearing. He said he never received phone

calls from Mother, other than following a car accident that Mother and Child

were in, and never declined her phone calls. Id. at 89. Father has

accommodated changes in the schedule when Mother has requested them,

and, when he is in Allentown on Sundays, he usually stays too late to take

Child home with him. Id. at 90.

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      Father discussed the fire at his home, which resulted in smoke damage

throughout the house and a hole in the living room floor. Id. at 103. Most of

Child’s toys were on the second floor, and were not damaged. Id. Father said

that Mother called him the day after the fire, not three days later. Id. at 106.

He told her Child was fine and that he did not know the extent of the damage.

Id. He did not call her on the day it happened because he needed to find

somewhere to stay. Id. He intended to call her, but it was “not at the top of

[his] list.” Id. at 107. If he had to do it again, he would call her on the first

day. Id.

      Father did not have documentation that Mother requested changes to

the order, that he accommodated requested changes to the custody schedule,

or that he followed-up with Mother after the fire. Id. at 136-38, 141, 145.

Father testified that the FaceTime meeting he attempted to arrange did not

occur because Mother insisted it happen in person, which was difficult to

arrange. Id. at 131.

      Father stated that he withheld Child from Mother on one occasion,

December 30, 2016. Id. at 87. Mother was supposed to have a urine screen

on December 26, 2016, but had not done so. Id. Father informed Mother he

would not drop off Child until she provided a clean urine screen. Id. On

December 29, 2016, Mother replied that the office was closed. Id. Mother filed

a petition for contempt when Father failed to bring Child on December 30,

2016. Id. at 88. The petition was dismissed, with Father providing Mother a

make-up custody day. Id.

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      Father described the duties he takes regarding Child, including feeding

him, getting him to and from school, participating in various activities, and

taking him to doctor’s appointments. Id. at 91. He also discussed Child’s

current school. Id. at 92-93. Father took steps to address Child’s behavioral

problems, and attended school conferences and the school Christmas party.

Id. at 94, 96. He testified that Mother had been invited to the events, but had

not attended. Id. at 97. Father did not present any documentation that he

informed Mother of the school events. Id. at

      Father stated he had concerns about Mother’s history of drug use, id.

at 109, but had no evidence that Mother abused prescription drugs or alcohol

since her arrest. Id. at 142.

      Father owns Allentown Tire, which is located in Allentown, and The

Falling Tree, a craft store based out of Carlisle, which does mostly online sales.

Id. at 114. He worked for Allentown Tire prior to purchasing it in March 2018.

When asked why he lived two hours from Allentown Tire, he stated that he did

not “need to be in Allentown for the shop to run.” Id. at 143. Father’s girlfriend

A.R. also works at Allentown Tire and Falling Tree. Id. at 192.

      Father has a two-year-old daughter, whom he does not see and whom

Child does not know. Id. at 125. Father has two sisters, who live near Wilkes-

Barre. Id. at 98. Child sees his aunts, cousins, and paternal grandparents

once or twice a month. Id. 98.




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      Mother’s fiancé, R.Z., testified about his interactions with Child. He

further stated that over the past two years Mother has become “much more

stable as a person.” Id. at 161.

      Maternal Grandmother also testified. She stated that if Mother and R.Z.

are working during Mother’s custody time, she cares for Child. Id. at 173. She

would be available to provide care if Mother received additional custody time.

Id. at 173-74.

      E.K., Mother’s friend, testified that she and Mother had been friends

since they were five. She has seen positive changes in Mother in the past two

years, including that Mother goes out less, has more work ethic, and she is

“doing things for [Child] primarily.” Id. at 187.

      The trial court addressed the Section 5328 custody factors and

concluded that it would be in Child’s best interest to award primary custody

to Mother during the school year, with Father having custody on alternate

weekends, and for the parties to share physical custody during the summer.

In addition to the Section 5328 factors, the court also considered the party’s

financial ability and “morality and character.” Father filed a timely notice of

appeal.

      Father raises the following issues on appeal:

          I. Did the Trial Court err in finding the factor of which party
          is more likely to encourage and permit frequent and
          continuing contact between the Child and the other party to
          favor Mother?




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       II. Did the Trial Court err in finding the factor of parental
       duties performed by each party on behalf of the Child to be
       even between Mother and Father?

       III. Did the Trial Court err in finding the factor of need for
       stability and continuity in the Child’s education, family life
       and community to be even between the parties when Father
       has had the Child for the past 22 months and there is
       nothing on the record to support a change should occur?

       IV. Did the Trial Court err in finding the factor of which party
       is more likely to maintain a loving, stable, consistent and
       nurturing relationship with the Child adequate for the Child’s
       emotional needs to be even between Mother and Father[?]

       V. Did the Trial Court err in finding the factor of which party
       is more likely to attend the daily physical, emotional,
       developmental, educations and special needs of the Child to
       be even between Mother and Father despite the fact the
       record supports the [sic]?

       VI. Did the Trial Court err in finding the factor of the party’s
       availability to care for the Child or ability to make
       appropriate child-care [arrangements] favors Mother
       despite the fact the record does not support the inferences
       made by the Trial Court in order to reach its conclusion?

       VII. Did the Trial Court err in finding the factor of which
       party has the ability to provide financially for the Child to be
       even between the parties despite the record showing that
       Mother does not have the ability to provide financially for
       the Child?

       VIII. Did the Trial Court err in finding the factor of morality
       and character to be even between the parties?

       IX. Did the Trial Court err in the inferences and conclusions
       it drew about Father's priority in contacting Mother about
       Father’s house fire on December 20, 2017?

       X. That in rendering its decision in this case, did the Trial
       Court err in [several] of its inferences and opinions about
       Father that are unsupported by the record and totality of the
       evidence?




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           XI. Did the Trial Court err in finding that the best interest of
           child is served by awarding Mother primary custody during
           the school year with alternate weekends to Father?

Father’s Br. at 5-7.

        “In reviewing a custody order, our scope is of the broadest type and our

standard is abuse of discretion.” V.B. v. J.E.B., 55 A.3d 1193, 1197

(Pa.Super. 2012) (quoting C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super.

2012)). This Court “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.” Id. (quoting C.R.F., 45 A.3d at 443).

We defer to the credibility determinations of the presiding trial judge, “who

viewed and assessed the witnesses first-hand.” Id. (quoting C.R.F., 45 A.3d

at 443). We, however, “are not bound by the trial court’s deductions or

inferences from its factual findings[,]” and “[u]ltimately, the test is whether

the trial court’s conclusions are unreasonable as shown by the evidence of

record.” Id. (quoting C.R.F., 45 A.3d at 443). We may reject the trial court’s

conclusions “only if they involve an error of law, or are unreasonable in light

of the sustainable findings of the trial court.” Id. (quoting C.R.F., 45 A.3d at

443).

        “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)

(citing J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)). A non-exclusive

list of factors a court should consider when awarding custody are set forth at

23 Pa.C.S.A. § 5328(a):


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       (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.

       (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.


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           (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.A. § 5328(a).

      Father first claims the trial court erred in finding Mother was more likely

to encourage and permit frequent and continuing contact between Child and

the other party. He claims the court erred in weighing against Father his

withholding of Child on December 30, 2016. He also stresses that he testified

that he did not withhold phone calls and that he accommodated Mother when

she requested changes to the custody schedule.

      The trial court addressed which party is more likely to engage and

permit frequent and continuing contact between Child and the other party as

follows:

           Mother states that she has called Father when the Child is
           with her, and let the Child talk with Father. She also states
           that Father often says that the Child must be back in Carlisle
           for playdates, bedtime, etc. cutting her time short. She also
           states that Father has declined calls from Mother. Father
           said that he withheld the Child on December 30, 2016, that
           Mother was to take a urine screen and did not, that he told
           her that she needed a clean screen, but that she did not get
           the test completed, but instead filed for contempt. We find

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         that this factor is even with a very slight tip to Mother's
         favor.

Final Custody Order, filed June 7, 2018, at Attachment at 1 (“Court Findings”).

      The trial court credited Mother’s testimony, including her testimony that

that she permits Child to call Father during her custody time and that Child

does not call her during Father’s custody time. It is not clear that the court

held the fact that Father withheld Child because he believed Mother missed a

urine screen against Father. Further, even if it did, this would not have been

improper. The record supports these findings, and the court did not abuse its

discretion.

      In his second issue, Father claims the court erred in finding that the

parental duties factor was even between Mother and Father. He claims the

court’s reasoning—that Mother had primary custody of Child for 18 months

before Father had primary custody for 22 months—was contrary to the

requirement that the court must         make decisions based on current

circumstances.

      The trial court concluded:

         The evidence shows that Mother and Father resided
         together until August 2014. No testimony was provided as
         to who was primary caregiver during that period so, for that
         period we will conclude that this is even. Thereafter, from
         August of 2014 until February of 2016, the Child resided
         primarily with Mother; thus, she was the primary caregiver
         during that period. Then, from February of 2016 to the
         present, the Child has resided with Father; so he has been
         the primary caregiver during that period. So, Mother has
         been the primary caregiver for a little over eighteen months
         and Father has been the primary caregiver for



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         approximately twenty-two months. Thus, this factor is
         substantially even.

Court Findings at 1.

      The record supports the court’s finding that the factor is even. Although

Mother has not been Child’s primary care giver for the past 22 months, as the

trial court noted, she was Child’s primary caregiver for a substantial time prior

to that. Further, the testimony supported that both Mother and Father are

able to, and do, perform parental duties for Child while Child is in his or her

care. The court did not abuse its discretion in addressing this factor.

      Father next claims the trial court erred in finding the factor that

considers the need for stability and continuity in Child’s education, family, and

community to be even. He claims Child has been in Father’s primary care and

attends a preschool near Father and, therefore, custody with Father would

provide stability.

      Regarding the need for stability and continuity in Child’s education,

family life, and community life, the trial court found:

         The Child is currently in preschool. At Mother’s home, the
         Child would attend Lincoln Elementary School, which is full
         day kindergarten, three classes per week with twenty
         children, all female teachers with a bus stop right outside
         Mother's house. Mother has checked into all kinds of
         activities, sports, Cub Scouts, etc., and [all are] available.
         She indicates that she takes the Child places, takes walks,
         reads, takes him to the library and does lots of other
         activities.

         Father indicates that the Child attends Miracle Bush School
         in preschool and needs to be in that full-time for one year
         before proceeding to kindergarten, but that this is not being
         allowed because of the parties' custody schedule. At the
         Child's young age, the education aspect is not a big factor,

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         he has simply not started school anywhere yet. He would
         appear to be stable at both houses; the only reason that
         Father is providing continuity is because that is where he
         has been for the last year and a half or so. The big stability
         question is as to Mother because of her past behavior and
         leaving the Child alone when he was two years old to go out
         and drink and get a DUI conviction. However, she has been
         good ever since. She had a conviction for a credit card fraud
         matter which is a crime involving crimen falsi. Thus, I would
         be entitled to find all of her testimony not credible on that
         basis alone. However, based upon observing her and
         listening to her, watching her demeanor and taking the
         totality of the evidence into account, I do find her credible
         and that conviction is not enough to disturb that finding of
         credibility. As to the DUI, there is no question that that put
         the Child at risk. However, querie: does that incident mean
         that Mother can never have primary custody of the Child
         ever again? Was that the first domino that knocks all of the
         other dominos over for the rest of the Child's life and her
         life? It appears that she has rehabilitated herself; there is
         no evidence that she had any additional criminal problems
         since then and has demonstrated good stability since then.
         She is currently in a relationship, she has a productive job
         making good money, she has the support of her mother,
         who lives nearby. Therefore, we find this factor is even.

Court Findings at 2-3.

      The trial court noted where Child would attend school for each

household, but also noted the young age of Child when considering this factor.

The trial court further noted that both Father and Mother are able to provide

continuity and care for Child, but that Child has been in Father’s primary care

for 22 months. The court found that “the big stability question was mom,” as

she had previously left Child alone. The court found that Mother had

rehabilitated herself and had demonstrated good stability, as she is in a

relationship, has a productive job, and has the support of her mother. The




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court found that based on the current circumstances, the factor was even.

This was not an abuse of discretion.

      Father next argues the court erred in finding that the party more likely

to maintain a loving, stable, consistent, and nurturing relationship with Child

was even, noting Mother would “not have lost primary custody of the Child” if

she was able to provide a stable and consistent relationship and that she left

Child alone when he was two years old. Father argues Child has a stable life

with him.

      The trial court found:

         We find that this is even. Both parties testified in a fair
         degree of detail about their relationship with the Child and
         it appears that both have a good relationship with the Child.

Court Findings at 4. The record, including Mother’s and Father’s testimony,

support this, as both testified regarding their interactions with Child. The trial

court did not abuse its discretion in finding this factor to be even.

      Father next argues that the trial court erred in finding that the factor

that considers which party is more likely to attend to the daily physical,

emotional, developmental, educational and special needs of Child to be even.

Father argued this factor should have weighed in his favor, as Mother only

attended to Child’s daily needs on the weekends and Maternal Grandmother

provides many of the daily needs during Mother’s custody time. Further,

Mother had a mental health diagnosis, her waitressing schedule made her

unavailable to care for Child, and Mother was not even able to fully exercise

her custody time due to her work schedule.

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      The trial court found this factor to be even, reasoning:

         Mother describes that the Child gets a bath daily and that
         she does a variety of things with him. Father says he attends
         all school conferences and activities and that Mother
         attended none of these, he said that Mother has drug and
         alcohol issues, but provided nothing beyond what we have
         already discussed. He said she has mental health issues, but
         did not provide any sufficient evidence on this.

Court Findings at 4.

      The record supports these findings. Although Mother testified that she

had a mental health diagnosis, she also testified she received therapy and

took prescription medication, and that she has not had issues with drugs or

alcohol since her arrest. Moreover, Mother’s testimony supports a conclusion

that she provides for Child’s daily needs when Child is in her care. The trial

court did not abuse its discretion when addressing this factor.

      Father argues the court erred in finding the factor regarding the party’s

availability to care for Child or make appropriate child-care arrangements

favored Mother. He notes that Mother’s work schedule makes her often

unavailable to care for Child during the evenings and that the court put too

much weight on Maternal Grandmother’s ability to provide childcare.

      The trial court found this factor favored Mother, reasoning

         [M.R.], maternal grandmother, does, in fact, provide child-
         care and is ready, willing and continues to do that. Mother
         indicates that her brother, grandparents, aunt and uncle
         also occasionally do this and are available to do this. Father
         provided no evidence of child-care arrangements for when
         he is not available. There may be arguably an assumption
         that his girlfriend would do so, but that was not stated nor
         was it indicated who would care for the Child if she was not


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         available since she works the same place Father does. So,
         this factor favors Mother. It is also noteworthy that Father’s
         job is in Allentown and his other job is done from home so,
         quer[y]: what would happen if Father is at work in Allentown
         and his girlfriend is at work in Allentown and an issue comes
         up in Carlisle while the Child is in the school? How would
         Father handle that?

Court Findings at 4-5.

      The record supports these findings, and the trial court did not abuse its

discretion in finding this factor favored Mother. Mother testified that Maternal

Grandmother and other relatives of Mother could provide childcare when

needed, and Maternal Grandmother’s testimony corroborated that she

provides care. Father provided no evidence regarding childcare arrangements

when he was not available, even though he and his girlfriend sometimes work

two hours from Child’s school.

      Father next argues that the trial court erred in finding that both parties

have the ability to provide financially for Child.

      Although Section 5328(a)(16) permits trial courts to consider other

relevant factors, the court is not permitted to consider as a custody factor

which party is more likely to have the ability to provide financially for Child.

Rather, “[i]n a custody proceeding, the sole permissible inquiry into the

relative wealth of the parties is whether either party is unable to provide

adequately for the child.” Roadcap v. Roadcap, 778 A.2d 687, 690

(Pa.Super. 2001) (quoting Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d

152, 156 (1983)) (alteration in original). Therefore, “unless the income of one




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party is so inadequate as to preclude raising the children in a decent manner,

the matter of relative income is irrelevant.” Id.

      Here, there was no suggestion Mother’s or Father’s income was so

inadequate as to preclude raising Child in decent manner, and therefore, their

financial ability is irrelevant to the custody determination. Although the trial

court should not have considered this factor, remand is not necessary because

the court found the factor to be even between the parties and Father sustained

no prejudice.

      Father next claims the court erred in finding the “morality and character”

factor to be even. The parties’ “morality and character” is not an enumerated

factor. The trial court purported to review this factor under “any other relevant

factors.” Without any evidence that a parties’ “morality or character” had a

detrimental effect on a child, such a factor is irrelevant to the custody

determination. See V.B., 55 A.3d at 1198, 1201-02 (noting trial court

“injected artificial morality concerns that the legislature has deemed

irrelevant” and finding Father’s prior participation in polyamory could not be

weighed against him unless evidence establish his participation had adverse

impact on child). It is not clear what evidence the court considered in this

“morality and character” factor, and there was no evidence that either party’s

“morality or character” had a detrimental impact on Child. Father argues that

this factor should weigh in his favor because Mother has been convicted of

DUI and of recklessly endangering Child. However, the court properly

considered Mother’s criminal history and prior behavior when addressing other

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statutory factors. Therefore, this additional “morality and character” factor

was irrelevant. However, we need not remand because the trial court found

the factor to be even.

      Father next argues the trial court erred in drawing inferences and

conclusions that Father did not prioritize Mother based on his failure to

communicate with her following his house fire. Father cites his testimony that

Mother called him less than 24 hours after the fire, that the fire was not

traumatic for Child, and that he followed up with texts. He argues that the

court awarded primary custody to Mother to “punish Father for what the

[court] believed was the negative way Father views the Mother,” and that this

had “nothing to do with the best interest of the Child.” Father’s Br. at 36.

      The trial court considered the following in determining custody:

         There was a fire at Father’s home on December 20, 2017 at
         1:30 p.m., while no one was home. At the time, the fire
         resulted in a six foot by four foot hole on the first floor with
         smoke damage throughout the home. There was no major
         loss of Child’s toys. However, the damage was severe
         enough for Father and his family to need to move out of the
         house and reside elsewhere temporarily while remedial work
         [wa]s done. When this occurred, Father was understandably
         dealing with an emergency situation, but he failed to call
         Mother and advise her about the occurrence of it and to
         reassure that the Child was unharmed. Mother saw
         something about this on Facebook and called Father the
         next day around noon, just under twenty-four hours after
         the fire, asks Father and he tells her about the fire. Father
         indicates that he was going to let her know, eventually, but
         he just had not gotten to it yet. Queries if he or his girlfriend
         had time to put it on Facebook, how did he not have time to
         call Mother? The point is, that if Father saw Mother as a
         priority, he would have called her on the phone. This factor
         favors Mother.

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Court Findings at 6.

       The record supports these findings, and the court did not abuse its

discretion in considering Father’s actions. Both Mother and Father testified

that Mother did not learn of the fire until at least the day after it occurred, and

that she did not learn of the fire from Father. This is relevant to Father’s

communication with Mother and that he did not view Mother as a priority in

Child’s life.

       In his next issue, Father claims the court erred in inferring that Father

lived in Carlisle to avoid Mother, as the record did not support this inference.

Rather, according to Father, he lived in Carlisle because his girlfriend owned

a home there. Further, Father disputes the court’s finding that he does not

see Mother as a priority, as he maintains that the testimony established he

tried to include Mother.

       The trial court made the following observations:

          Father owns and manages Allentown Tire located in
          Allentown. He also has another business, which is an on-line
          business, which means he can do it from anywhere. So, we
          wonder why he must reside . . . in Carlisle? Does he do that
          so that he can create a physical distance between the Child
          and Mother? Does he do that to avoid any possibility of
          shared custody arrangement? Does he do[] that because his
          girlfriend is from that area and wants to live in that area?
          What is the reason that he lives in Carlisle? Indeed[,] he
          lived in Allentown for a period of time back when he lived
          with his Mother. These are questions which were never
          answered. It appears to the Court that Father could just as
          well live in Allentown.

          It appears from the totality of the evidence that Father does
          not see Mother as a priority as to the Child based upon the
          past behavior regarding the crime for which . . . she has

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         been convicted. And he seems to feel that he is in charge,
         over Mother, in regard to the Child. This is reflective in the
         way he talks about her, the way he says that the Child needs
         to get back for something instead of being with Mother, as
         if . . . whatever he has to get back for something that is
         more important that the Child’s relationship with his Mother.
         Father seems to have concluded that Mother is a second-
         class parent by virtue of her DUI and is going to ride that
         for all its worth and that Mother can never redeem herself.

Court Findings at 6-7.

      The trial court noted that Father owned a tire shop in Allentown and his

other business was online and noted Father failed to explain why he lived in

Carlisle, rather than Allentown. The record supports this. In his brief, Father

stated he lives in Carlisle because his girlfriend, who also works at Allentown

Fire, owns a home there. However, when asked at the hearing why he lives

two hours from Allentown, he just stated he did not need to be there for the

shop to run. The trial court did not abuse its discretion.

      In his final issue, Father claims the trial court failed to consider the

impact the new custody arrangement would have on Child, and claims that

awarding primary custody to Mother during the school year was not in Child’s

best interest. By considering the statutory factors, as outlined above, the trial

court considered Child’s best interest and determined which custody

arrangement would be in Child’s best interest. It did not abuse its discretion

in concluding it would be in Child’s best interest to award Mother primary

custody during the school year.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/19




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