J-A19032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M.                                       :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
T.C.M.,                                    :
                                           :
                  Appellant                :            No. 745 EDA 2017

                Appeal from the Order entered January 26, 2017
             in the Court of Common Pleas of Montgomery County,
                       Civil Division, No(s): 2016-09945

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 21, 2017

       T.C.M. (“Father”) appeals from the Order (hereinafter, “the Custody

Order”) granting J.M. (“Mother”) primary physical custody, and shared legal

custody, of K.M. (born in November 2000), A.M. (born in August 2003), and

L.M. (born in October 2006) (collectively, “the Children”), and granting Father

partial physical custody and shared legal custody.1 We affirm.

       The trial court summarized the relevant factual and procedural history

of this appeal, which we incorporate as though fully set forth herein.      See

Trial Court Findings of Fact, 1/26/17, at 1-4.

       The trial court entered the Custody Order on January 26, 2017. On the

same date, the court issued its Findings of Fact, wherein it addressed the

seventeen custody factors (hereinafter, “the best interest factors”) set forth in




1
  The Custody Order provided that, during the Children’s summer vacation
from school, Father and Mother shall have shared physical custody.
J-A19032-17

subsection 5328(a) of the Child Custody Act (“the Act”).     See 23 Pa.C.S.A.

§ 5328(a).

      Father timely filed a Notice of Appeal, followed by a court-ordered

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

errors complained of on appeal, presenting eighteen separate issues.        The

trial court then issued a Pa.R.A.P. 1925(a) Opinion (hereinafter, the “Rule

1925(a) Opinion”).

      Father now presents the following questions for our review:

      A. Whether the [trial] court abused its discretion and committed
         an error of law in weighing the [best interest] factors by
         granting [] Mother primary custody of the Children?

      B. Whether the [trial] court properly applied the [best interest]
         factors in analyzing the best interests of the Children?

      C. Whether the [trial] court abused its discretion and committed
         an error of law in denying [] Father the opportunity to
         participate in the Children’s daily lives?

      D. Whether the [trial] court deviated from applicable standards
         in establishing a schedule of when [] Father would be able to
         have physical custody of the Children individually and
         together?

Father’s Brief at 5-6 (issues renumbered for ease of disposition, capitalization

omitted).

      “We review [a] trial court’s custody order for an abuse of discretion.”

M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super. 2017).         In conducting this

review,

      [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


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      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). This Court has further explained that

      [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, the primary concern is the best interests of the

child. See 23 Pa.C.S.A. §§ 5328, 5338; see also M.G., 155 A.3d at 1091.

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

interest factors, enumerated at subsection 5328(a) as follows:




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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, education and special
        needs of the child.



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         (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.

23 Pa.C.S.A. § 5328. “All of the [best interest] factors … 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).

      Subsection 5323(d) of the Act 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).    “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

[best interest] 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); see also id. (stating that “[a] court’s explanation of reasons for its




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decision, which adequately addresses the relevant factors, complies with

Section 5323(d).”).

         Here, we will address Father’s first three issues together, as they are

closely related, and all essentially challenge the trial court’s weighing of the

best interest factors.

         In his first issue, Father contends that the trial court “erred in making

factual findings that suggested that both Mother and Father were capable of

[exercising] primary physical custody, but then granted [primary] physical

custody to [] Mother.” Father’s Brief at 16. Father additionally argues that

“[t]he [trial] court’s findings of fact[] are not reasoned, and instead, make

prejudicial statements in favor of [] Mother, such as ‘Mother worked as the

CEO of the family.’ The [trial] court frowned upon [] Father being a surgeon

and physician.” Id. at 17-18 (quoting Trial Court Findings of Fact, 1/26/17,

at 9).

         In his second issue, Father asserts that the trial court improperly

applied the best interest factors in analyzing the best interests of the

Children. Father’s Brief at 18. Father urges that “[t]here is no dispute that

[he] is able, available and wanted to have physical custody of the Children[,

yet he] … was only entitled to one overnight per week with all three Children

at the same time.”       Id. at 21; see also id. at 22, 23 (asserting that such

custody schedule causes disruption in Father’s relationship with the Children

and “separation among the Children”).        Father additionally argues that the




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trial court overlooked that (1) Mother made disparaging comments to the

Children concerning, inter alia, Father’s alleged alcohol abuse; (2) in

contradiction of Mother’s claim that Father is an alcoholic, Father submitted

an “expert report” opining that Father “had a low probability of having an

alcohol [] abuse” issue; and (3) paternal grandmother had often helped

Mother care for the Children.    Id. at 22, 23; see also id. at 22 (asserting

that Mother’s testimony at the custody hearing was not credible).

      In his third issue, Father argues that the trial court improperly denied

him the opportunity to participate in the Children’s daily lives.      Id. at 30.

According to Father,

      [t]here is no evidence in the record that [he] did not participate in
      the Children’s daily well-being. The [trial] court stated in its [Rule
      1925(a)] [O]pinion that the “majority of the household duties had
      always been, and currently were still, performed by Mother.”
      “Household duties” is not a statutory factor in awarding primary
      physical custody. Such an arbitrary statement punishes [] Father
      for being a physician and surgeon.

                                  ***

      Moreover, if [] Father is able to maintain fifty percent [physical]
      custody during the summer, when there are still household chores
      to be done and [] Father still works, it is unreasonable to suggest
      that the factors must change during the school year.

Id. at 32-33 (citations omitted). Father further points out that the trial court

found that “Father is also an involved, loving, doting parent[,] who attends to

the[] [Children’s] activities, participates in school programs and always

makes time to engage with the [C]hildren.” Id. at 34 (quoting Rule 1925(a)

Opinion, 3/31/17, at 15). Father contends that this finding “contradicts” the



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trial court’s awarding primary physical custody to Mother.     Father’s Brief at

34.

      In its Findings of Fact, the trial court thoroughly addressed all of the

best interest factors, and determined that it was in the Children’s best

interests to award Mother primary physical custody during the school year.

See Trial Court Findings of Fact, 1/26/17, at 4-12.     Additionally, the court

addressed Father’s above-described claims in its Rule 1925(a) Opinion,

adeptly summarized the relevant law, and determined that the court did not

abuse its discretion in weighing the best interest factors, or in awarding

Mother primary physical custody during the school year.      See Rule 1925(a)

Opinion, 3/31/17, at 6-9, 14-17. As the trial court’s analysis is sound, and

the record supports its factual findings, we incorporate it herein by reference.

See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court Findings of

Fact, 1/26/17, at 4-12. Like the trial court, we decline Father’s invitation to

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

findings and custody arrangement that Father 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

A.V., supra (stating that a reviewing court should defer to the trial court on

issues of credibility and weight of the evidence).    Accordingly, as the trial

court’s sound analysis of the best interest factors was careful and thorough,




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and we discern no abuse of the court’s discretion in fashioning a reasonable

award of physical custody that was in the Children’s best interests, we defer

to the court’s decision.      See A.V., supra (stating that “[a]ppellate

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.”); see also id., supra, (stating that a reviewing court

may not interfere with a trial court’s conclusions where they are reasonable in

view of the trial court’s factual findings). We thus affirm on the basis of the

trial court’s Rule 1925(a) Opinion and Findings of Fact as to Father’s first

three issues. See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court

Findings of Fact, 1/26/17, at 4-12.

      In his final issue, Father argues that the trial court rendered an

“arbitrary” physical custody award, which “was in deviation of the statutory

guideline and not in the Children’s best interests[,]” where “Father only has

[all] three Children together four times a month over a ten month period,

even though [Father] lives near [] Mother, closer to [the Children’s] school,

[and] on the bus route ….” Father’s Brief at 25-26. Father urges that

      [t]he better solution to meet the Children’s best interests was …
      [to award the parties] shared physical custody[, and] … a more
      balanced schedule[,] where all three Children could stay with []
      Father together more than four nights per month during the
      school year, [which is] … a disproportionate [and] unjustified
      holding. … The arbitrary decision of the [trial] court does not
      reflect the reasoning as to why [] Father can have the Children
      together 4 nights [per month] during ten months out of the year,
      and fifteen nights [per month] for two summer months.




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Id. at 29.

      In its Rule 1925(a) Opinion, the trial court explained that it (1) had

considered the Children’s “articulate and well reasoned” desires for a physical

custody schedule that was best suited to their respective individual needs;

and (2) was cognizant that the court had fashioned an unconventional

custody schedule, whereby the Children were not always together during

Father’s custodial time, and each had a slightly different schedule. See Rule

1925(a)      Opinion,   3/31/17,   at   10-11.   The   court   determined   that,

nevertheless, it was appropriate, and in the Children’s respective best

interests, to employ a physical custody schedule that the Children expressed

they prefer, even though it does not ensure that the Children are all together

at all times. Id. The trial court’s reasoning is sound and supported by the

record, and we discern no abuse of the court’s discretion in finding that the

unconventional physical custody schedule put into place was in the Children’s

best interests.2 Accordingly, we affirm on this basis in rejecting Father’s final

issue. See id.

      Order affirmed.


2
  Our determination is unaltered by Father’s pointing out that that he was
awarded shared physical custody during the Children’s summer vacation, but
not during the remainder of the year. The trial court found that such
arrangement was the one best suited to the Children’s best interests, and
their expressed preferences.        See Rule 1925(a) Opinion, 3/31/17, at 8-9
(stating, inter alia, that “the [C]hildren have a very strong preference towards
spending more time in Mother’s household during the school year in order to
provide them with consistency and stability, especially in their academic
pursuits.”); see also id. at 10-11. Contrary to Father’s assertion, this
physical custody arrangement is neither arbitrary nor unreasonable.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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