J-A29045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.R.W.,                                  :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
           v.                            :
                                         :
J.R.R.,                                  :
                                         :
                  Appellant              :           No. 883 WDA 2015

                Appeal from the Order entered on May 4, 2015
              in the Court of Common Pleas of Venango County,
                          Civil Division, No. 810-2014

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED JANUARY 19, 2016

      J.R.R., (“Father”) appeals from the Order1 dismissing his Petition to

Modify an existing Custody Order with regard to his two children with K.R.W.

(“Mother”): E.R.R., a daughter born in January 2011; and E.J.R., a son born

in November 2012 (collectively, “Children”).   We vacate and remand for

further proceedings.

      On July 17, 2014, Mother filed, in Venango County, a Complaint for

Custody, an Emergency Petition for Special Relief, and a Petition for

Approval of the transfer of the child custody case from Allegheny County to

Venango County. The trial court held a hearing on the Petitions on July 28,

2014. On August 1, 2014, the trial court entered an Interim Custody Order

assuming jurisdiction (in Venango County) over the child custody case. In

1
   The trial court’s Adjudication and Order were dated May 1, 2015, but not
filed until May 4, 2015.
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addition, the trial court’s Order awarded the parties shared physical custody,

despite Father’s concerns regarding Mother’s history of drug addiction, with

the provision that the Children would reside with their maternal grandmother

while in Mother’s physical custody. The trial court also awarded Mother and

Father shared legal custody, and scheduled an evidentiary hearing for

September 12, 2014.

        On December 23, 2014, following two days of hearings,2 the trial court

entered an Adjudication and Order awarding Mother sole legal custody and

primary physical custody of the Children.     The trial court further awarded

Father partial physical custody, in accordance with a schedule.      The trial

court’s Adjudication and Order included the trial court’s discussion of its

findings related to the sixteen factors (“custody/best interest factors”) set

forth in section 5328(a) of the Child Custody Act (“the Act”).3

        Father timely filed a Notice of Appeal, along with a Concise Statement

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(a) and

(b), which was docketed at No. 395 WDA 2015. On February 2, 2015, the

trial court filed an Opinion pursuant to Pa.R.A.P. 1925(a).       However, on

March 26, 2015, Father filed a Praecipe to Withdraw his appeal. This Court

marked the appeal as discontinued on March 27, 2015.



2
 The trial court conducted evidentiary hearings on November 14, 2014, and
December 18, 2014.
3
    23 Pa.C.S.A. §§ 5321 to 5340.


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       On March 25, 2015, Father filed in the trial court a Petition to Modify

Custody and a Petition for Special Relief. In the Petition to Modify, Father

asserted that Mother had been charged with possession of marijuana and

committing a theft with a small child in her presence. Father asserted that

he was having difficulty in contacting Mother, that she apparently had

moved, and that the Children were often not with her.             Father further

alleged that the Children were at risk, in light of Mother’s history of illegal

drug use. He requested that the trial court modify the existing December

23, 2014 Adjudication and Order as to Mother’s sole legal and primary

physical custody award. In his Petition for Special Relief, Father alleged the

same circumstances, and requested that he be awarded primary custody to

him. The trial court scheduled a hearing on Father’s Petitions.

       The trial court conducted a hearing on April 28, 2015.        On May 4,

2015, the trial court entered its Adjudication dismissing Father’s Petitions.

Further, the trial court adopted its December 23, 2014 Adjudication and

Order as its final Order in the custody matter. The trial court’s Adjudication

did not include a discussion of the section 5328(a) custody/best interest

factors.

       Father timely filed a Notice of Appeal, along with a Concise Statement

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(a) and

(b).

       Father now presents the following two claims for our review:



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      [1.] Was it error for the trial court to find as a fact that Mother
      had not used marijuana or other illegal drugs in the past several
      years[,] when she was arrested [while] carrying marijuana and
      when her suboxone provider stated she tested positive for
      opiates and had no explanation for where she was perscribed
      [sic] them?

      [2.] Was it error for the trial court to rely on its prior findings
      related to the custody factors when the facts had changed
      substantially[,] and when the evidence did not support the
      conclusions the court had made regarding several of the factors?

Appellant’s Brief at 4.4

      Father claims that the trial court abused its discretion in finding that

Mother had not used marijuana or other illegal drugs in the past several

years. Id. at 13. Father also argues that the trial court erred when it relied

upon the findings in its December 23, 2014 Adjudication, as to the statutory

custody factors, when the facts had changed substantially, and when the

evidence did not support the trial court’s conclusions regarding several of

the custody/best interest factors. Id. at 15.

      Upon review of a custody order,

      our scope is of the broadest type and our standard is abuse of
      discretion. We 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. In addition,

4
   Father stated his first issue somewhat differently in his Concise Statement
filed on June 3, 2015. However, we find that Father adequately preserved
the issue for this Court’s review. Notwithstanding, Father failed to preserve
his second issue by raising it in his Concise Statement. Accordingly, it is
waied. See Krebs v. United Ref. Co. of Pennsylvania, 893 A.2d 776,
797 (Pa. Super. 2006) (stating that, a failure to preserve an issue by raising
it in both in the concise statement of errors complained of on appeal and the
statement of questions involved portion of the brief on appeal results in a
waiver of the issue).


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     with regard to issues of credibility and weight of the evidence,
     we must defer to the presiding trial judge who viewed and
     assessed the witnesses first-hand. However, we are not bound
     by the trial court’s deductions or inferences from its factual
     findings.   Ultimately, the test is whether the trial court’s
     conclusions are unreasonable[,] as shown by the evidence of
     record. We may reject the conclusions of the trial court only if
     they involve an error of law, or are unreasonable in light of the
     sustainable findings of the trial court.

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

     The 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. Indeed, the knowledge
     gained by a trial court in observing witnesses in a custody
     proceeding cannot adequately be imparted to an appellate court
     by a printed record.

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

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

     With any custody case decided under the Act,5 the paramount concern

is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child.             23 Pa.C.S.A.

§ 5338. Section 5328(a) of the Act, 23 Pa.C.S.A. § 5328(a), sets forth the

custody/best   interest   factors   that   the   trial   court   must   consider   in




5
  As the custody trial in this matter was held in April of 2015, the Act is
applicable. C.R.F., 45 A.3d at 445 (holding that, if the custody evidentiary
proceeding commences on or after the effective date of the Act, i.e., January
24, 2011, the provisions of the Act apply).



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determining a child’s best interests. See E.D. v. M.P., 33 A.3d 73, 80-81

n.2 (Pa. Super. 2011). These custody/best interest factors are as follows:

            (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).

           (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.


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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. § 5328.6 The trial court may render an award of custody, of

the type set forth at 23 Pa.C.S.A. § 5323(a),7 “[a]fter considering the factors




6
  Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services), and,
therefore, was in effect at the time of the custody hearing in this matter.
7
    The types of awards specified in section 5323 are as follows:

           (1)   Shared physical custody.
           (2)   Primary physical custody.
           (3)   Partial physical custody.
           (4)   Sole physical custody.
           (5)   Supervised physical custody.
           (6)   Shared legal custody.
           (7)   Sole legal custody.

23 Pa.C.S.A. § 5323(a)(1)-(7).




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set forth in section 5328 (relating to factors to consider when awarding

custody) ….” 23 Pa.C.S.A. § 5323(a).

      When deciding a petition to modify custody, a court must
      conduct a thorough analysis of the best interests of the child
      based on the relevant Section 5328(a) factors. E.D.[,] 33 A.3d
      [at] 80…. “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 in original). . . . The record must be clear that
      the trial court considered all the factors. [E.D., supra at 81.]

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).

      Section 5323(d) of the Act requires the trial court to 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 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, ___ Pa. ___, 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., 87 A.3d at 823.

      This Court has recognized only a very narrow exception to this

requirement. In M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014),

      the trial court decided a “discrete and narrow issue ancillary to a
      materially unchallenged custody arrangement,” i.e., whether
      Father needed to take time off from work when he had custody
      of the children over summer vacation.            Id. at 1059-60
      (emphasis added). We held that the trial court was not required
      to address the § 5328(a) factors. “Because the trial court did
      not make an award of custody, but merely modified a
      discrete custody-related issue, it was not bound to


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      address the sixteen statutory factors in determining the
      Children’s best interest.” Id. at 1063. Thus, the discrete and
      ancillary issue in M.O. did not require the trial court to order any
      form of custody. Therefore, though the trial court was required
      to consider the children’s best interests, it did not need to
      specifically address all the § 5328(a) best interest factors.

M.O., 85 A.3d at 1063 n.4 (emphasis added).

      Thus, where the trial court decides a discrete and narrow issue,

ancillary to the custody order, it need not consider the custody/best interest

factors set forth in section 5328(a).     M.O., 85 A.3d at 1063; but see

S.W.D. v. S.A.R., 96 A.3d 396, 406 (Pa. Super. 2014) (holding that where

father sought a modification of the existing custody order with regard to

physical custody, the trial court erred by failing to address all of the section

5328(a) custody factors in ruling on the father’s modification request).

      Here, the trial court, in its Opinion, set forth its reasons for awarding

Mother primary legal and physical custody:

              This is a custody case where [the court] conducted a trial
      ending in mid[-]December of 2014.           [The court] filed an
      [Adjudication] and Order on December 18, 2014, which was
      comprehensive and did analyze all of the 23 Pa.C.S.A. § 5328
      factors. The [Adjudication] and Order[,] which concluded the
      litigation[,] were docketed [on] December 23, 2014. [The court]
      request[s] the Appellate Court to consider [the Adjudication] and
      Order[,] since it was a very recent comprehensive assessment of
      the issues involved in the custody dispute.

             [Father] did [a]ppeal on January 14, 2015 to the Superior
      Court[,] which was docketed January 16, 2015[,] at 395 WDA
      2015. [The trial court] did, consistent with Fast Track practice,
      file [an Opinion] on February 2, 2015. [The court] ask[s] [the]
      Superior Court to consider the contents of [its] February 2, 2015
      [Opinion] to the extent that it addresses any issues raised by
      counsel.


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                              *        *    *

           In the Petition to Modify[,] the only issues raised as
     reasons to modify were that [Mother] had[,] in the interim[,]
     been charged with shoplifting[,] and at the time of her encounter
     with the police, marijuana was found in her purse. Father also
     alleged that he was having difficulty communicating with the
     [C]hildren because [Mother] had changed her address.

           The [c]ourt, when [it] heard the matter in April, received
     very limited testimony and [] concluded that under the
     circumstances[,] it was not necessary to do an analysis of every
     factor set forth in § 5328 because [Father] had limited his issues
     in the Petition to Modify by his pleading[,] and the [c]ourt had
     just done[,] in December of 2014[,] a comprehensive analysis of
     all the factors. There were very minimal changes between
     December of 2014 and April 28, 2015.

           [The trial court’s] “Adjudication” (Findings)[,] docketed in
     May 1, 2015, discuss[ed] the issues raised in the Petition to
     Modify and resolved those issues.

            [The trial court] did discuss in [its] May 1, 2015 Findings
     the minimal changes in the status of the parties, especially the
     fact that [Father] is now graduating from welding school and was
     anticipating employment in Erie, and that his mother, who at the
     time of the trial in December, had been unavailable for child care
     because she was working 70 hours a week, had since been laid
     off. In [the court’s] analysis, [it] concluded that there was no
     reason to modify the Order that [the court] had entered in
     December and that, in fact, the Order that [was] entered in
     December closely fit the needs of [Father,] since he was
     planning on taking full-time employment in Erie.

          [The court is] somewhat troubled by the status of
     the case because [it] did not[,] in [its] May 2015
     Findings[,] render the full analysis of the fifteen
     enumerated factors set forth in Section 5328. 23 Pa.C.S.A.
     § 5328(a) provides:

        “In ordering any form of custody, the [c]ourt shall
        determine the best interest of the child by considering all
        relevant factors, giving weighted consideration to those


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         factors which affect the safety of the child, including the
         following[.]”

            If the [c]ourt is again required to do an exegetical analysis
     of the factors, such would be unrealistic in the context that this
     [c]ourt considered extensive testimony and rendered the
     requisite comprehensive analysis just last December. What [the
     trial court] did address and resolve[,] based on the limited
     hearing time with limited evidence offered and received[,] were
     the issues raised in the Petition to Modify and other salient
     issues that cropped up during the testimony at the time of the
     Modification Hearing.       [The court] also put in context the
     extensive testimony [it] heard in December, 2014, and [its]
     Findings at that time[,] which included the fifteen enumerated
     factors. The issues before the trial court … were adequately
     addressed in [its] Findings docketed May 4, 2015, dated May 1,
     2015. Therefore, for purposes of the [Rule] 1925 Statement,
     [the court] request[s] the Appellate Court to consider [its]
     Opinion and the Order of December 23, 2014, [the Rule] 1925
     Statement docketed February 2, 2015, and [its] “Adjudication”
     docketed May 1, 2015 [sic].

           To the extent that this [c]ourt did not give weighted
     consideration to all the factors set forth in § 5328(a), the
     court state[s] that [its] Opinion of May 1, 2015 takes into
     account the very recent assessment of those factors in
     December of 2014 and [the court] was constrained by the
     limited evidence received during the April 28, 2015
     hearing.

Trial Court Opinion, 6/26/15, at 1-5 (emphasis added). Thus, the trial court,

in its Opinion, acknowledged its failure to (a) take evidence regarding the

section 5328(a) custody/best interest factors at the April 28, 2015 hearing;

and (b) give weighted consideration to the custody/best interest factors in

rendering its May 4, 2015 Adjudication. See id.

     The circumstances in the instant case are distinguishable from those

deemed “ancillary” in M.O.    Here, Father’s Petition to Modify the existing



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custody Order alleged that Mother was continuing to use marijuana, and had

committed a theft in front in the presence of a small child. As Father was

seeking to modify legal and physical custody, the trial court was statutorily

bound to hear evidence, and make its determinations regarding the section

5328(a) custody/best interest factors, based on the testimony and evidence

taken at the April 28, 2015 hearing.      We therefore conclude that the trial

court erred in adopting its prior consideration of the section 5328(a)

custody/best interest factors, upon which it based its December 23, 2014

Adjudication and Order. Thus, we must remand the matter to the trial court

to take current testimony and evidence regarding the factors set forth at

section 5328(a), to make appropriate conclusions, and to render a proper

custody order.

      Accordingly, we vacate the May 4, 2015 Order of the trial court and

remand the matter for the trial court to hold a new evidentiary hearing and

to address each of the section 5328(a) factors in its opinion, consistent with

section 5323(d), to demonstrate that it fully considered the best interests of

the Children.

      Order vacated and remanded for further proceedings, in accordance

with this Memorandum. Panel jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2016




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