J-S17030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.S.K.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

J.L.K.,

                            Appellee                  No. 1473 WDA 2015


                     Appeal from the Order August 28, 2015
                In the Court of Common Pleas of Cambria County
                        Civil Division at No(s): 2011-1320


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED APRIL 15, 2016

       Appellant, E.S.K. (“Father”), appeals from the August 28, 2015 order

that awarded shared legal custody of children E.T.K. and K.A.K. (collectively,

“the Children”) to Father and Appellee, J.L.K. (“Mother”).       The order also

awarded primary physical custody of the Children to Mother and partial

physical custody to Father. We affirm.

       In its Pa.R.A.P. 1925(a) opinion entered on October 23, 2015, the trial

court set forth the factual background and procedural history of this

contentious matter as follows:

             [Father and Mother] have two minor children, namely,
       E.T.K. [born in 2008] . . . and K.A.K. [born in 2010] . . . . Father
       filed a Complaint in Custody on April 8, 2011. The parties
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S17030-16


     followed various interim consent orders from 2011 through
     2014. On December 18, 2014, Mother filed a Petition for
     Modification.1 Father filed an Answer and Counterclaim on March
     16, 2015.2 The trial court conducted Hearings on April 30, 2015;
     July 2, 2015; and July 17, 2015; and entered a Custody Order
     on August 28, 2015.
                1
                  Mother filed a “Complaint in Custody,”
                which the trial court construed as a
                Petition for Modification.
                2
                  On April 13, 2015, Father filed an
                amendment     to   the   Answer  and
                Counterclaim, expanding his proposed
                shared custody schedule.

           Father filed a Notice of Appeal and Concise Statement of
     Errors Complained of on Appeal pursuant to Pennsylvania Rule of
     Appellate Procedure 1925(b) on September 23, 2015. The four
     hearing transcripts3 were lodged on October 5, 2015; October 7,
     2015 (2); and October 13, 2015.
                3
                  There are two transcripts for the
                Hearing conducted on July 17, 2015.

           In its August 28, 2015 Opinion, the trial court made the
     following Findings of Fact:4
                4
                  The trial court reproduces its Findings
                of Fact here in full, with citations to the
                record and redaction of the children’s
                names.

          1. The parties were married on December 18, 2007
          and separated in March of 2011. HEARING NOTES OF
          TRANSCRIPT “N.T.” (Apr. 30, 2015), pgs. 33, 58.

          2. The parties are subject to an Interim Consent
          Order dated May 20, 2011. INTERIM CONSENT
          ORDER FILED FOR RECORD ON MAY 23, 2011.
          Pursuant to the Order, the parties shared legal
          custody and Mother exercised primary physical
          custody. Id. at ¶¶ 1, 4. Father had partial physical
          custody on Monday and Tuesday overnights; Friday

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          overnight on the third weekend of the month; and
          Friday through Sunday on the first, second, and
          fourth weekends of the month. Id. at ¶¶ 1 -2.

          3. The parties informally modified the Interim
          Consent Order shortly after it was entered. N.T.
          (Apr. 30, 2015), pg. 61. Since that time, the parties
          share custody as follows: Mother has custody on
          Sunday, Tuesday, and Thursday overnights; Father
          has custody on Monday and Wednesday overnights;
          and the parties alternate weekends. N.T. (Apr. 30,
          2015), pgs. 4, 15, 61. The party relinquishing
          custody provides transportation. N.T. (Apr. 30,
          2015), pgs. 13-14, 61-62.

          4. The parties resided in the Richland School District
          during the marriage. N.T. (Apr. 30, 2015), pgs. 55-
          56, 67.

          5. Mother now resides in East Conemaugh Borough,
          Cambria County, in the Conemaugh Valley School
          District. N.T. (Apr. 30, 2015), pg. 3. Mother lives
          with the [C]hildren; her father, Thomas Marshall
          “Maternal Grandfather”; and two brothers, ages 25
          and 27. N.T. (Apr. 30, 2015), Pg. 3.

          6. Father resides in the Richland suburb            of
          Johnstown. N.T. (Apr. 30, 2015), pg. 57.5
               5
                The trial court takes judicial notice [of]
               Father’s address . . . . N.T. (Apr. 30,
               2015), pg. 57.

          7. K.A.K. will attend full-day kindergarten at
          Conemaugh Valley for the 2015-2016 school year;
          E.T.K. will attend second grade. N.T. (Apr. 30,
          2015), pgs. 15, 24.

          8. Mother has been employed as a Registered Nurse
          at Memorial Medical Center for five years. N.T. (Apr.
          30, 2015), pg. 4. She writes her own schedule and
          works three days per week, mostly daylight shift.
          N.T. (Apr. 30, 2015), pgs. 5, 25.


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          9. Father has a degree in economics and finance
          from St. Francis University. N.T. (Apr. 30, 2015), pg.
          58. He is a self-employed financial advisor for
          Ameriprise. N.T. (Apr. 30, 2015), pg. 65. Father
          testified that he “shuts the office down” on Mondays,
          Wednesdays and Friday afternoons to facilitate his
          periods of custody. N.T. (Apr. 30, 2015), pgs. 63-66.

          10. Mother testified extensively about Father’s
          spiteful and passive-aggressive behavior. See e.g.,
          N.T. (Jul. 17, 2015, second session), pgs. 24-31.
          Mother’s testimony was credible and compelling. She
          requests primary physical custody of the children.
          N.T. (Apr. 30, 2015), pgs. 31-33.

          11. Father alleges that the effects on his children of
          him “being relegated to an every-other-weekend dad
          would be catastrophic.” N.T. (Apr. 30, 2015), pg. 88.
          Father requests equal shared custody. N.T. (Apr. 30,
          2015), pgs. 88-89.

          12. Father wants the children to attend the “superior
          Richland School District.” N.T. (Apr. 30, 2015), pgs.
          67, 93; N.T. (Jul. 17, 2015, second session), pg. 4.
          He acknowledges that he did not contest Mother
          enrolling E.T.K. in the Conemaugh Valley School
          District. N.T. (Apr. 30, 2015), pg. 93.

          13. Rebecca Castiglione, Principal at Conemaugh
          Valley Elementary School, testified on behalf of
          Mother. N.T. (Apr. 30, 2015), pg. 95.

               a. At the end of the 2013-2014 school
               year, Ms. Castiglione attended a meeting
               with Father, E.T.K., and the guidance
               counselor. At the time, Ms. Castiglione
               was a Title I Reading Specialist. She
               testified that Father was confrontational
               and that he blamed Mother for some of
               the child’s problems. Ms. Castiglione
               noted that Father made these comments
               in front of the minor child. N.T. (Apr. 30,
               2015), pgs. 95-96.


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                b. For the 2014-2015 school year, Father
                was late retrieving E.T.K. from school on
                five occasions. Representatives of the
                school contacted Father and asked for
                the courtesy of a phone call when he was
                running late, but Father only called on
                one of the remaining four occasions.
                MOTHER’S Ex. 1. N.T. (Apr. 30, 2015),
                pgs. 96-97.

                c. Father and his attorney advised Ms.
                Castiglione that Father was “technically
                [her] boss” and that she would have to
                follow Father’s policies. N.T. (Apr. 30,
                2015), pgs. 97 -99.

                d. Ms. Castiglione testified that Father is
                “condescending” and “very difficult to
                work with” when she attempts to address
                issues with him. Ms. Castiglione prefers
                to communicate with Father in writing.
                N.T. (Apr. 30, 2015), pg. 98.

          14. Christine Miller, secretary at Conemaugh Valley
          School District, testified on behalf of Mother. N.T.
          (Apr. 30, 2015), pg. 103. On several occasions when
          Father was picking up E.T.K. from school, Ms. Miller
          observed K.A.K. in Father’s vehicle without a car
          seat. N.T. (Apr. 30, 2015), pg. 103. Ms. Miller
          witnessed this recur for several weeks before she
          called Cambria County Children and Youth Services.
          N.T. (Apr. 30, 2015), pgs. 103-104. Ms. Miller also
          noted that Father left K.A.K. in the vehicle
          unattended on one occasion. N.T. (Apr. 30, 2015),
          pgs. 103-104. Ms. Miller is acquainted with Maternal
          Grandfather and was aware of the parties’ custody
          dispute. N.T. (Apr. 30, 2015), pg. 109.

          15. Maternal Grandfather testified as follows.

                a. Maternal Grandfather describes Father
                as “viciously abusive and disgustingly
                obsessive.” N.T. (Jul. 2, 2015), pg. 5.


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              b. Father “despises” Mother and “hates”
              Maternal Grandmother.6 N.T. (Jul. 2,
              2015), pg. 11.
                    6
                       The trial court’s original
                    Findings of Fact incorrectly
                    noted that Father hates
                    Maternal Grandfather. But
                    see N.T. (Jul. 2, 2015), pg.
                    11.

              c. Father constantly accuses Mother of
              drinking alcohol and sleeping with other
              men in front of the children. N.T. (Jul. 2,
              2015), pg. 5.

              d. “Everything that came out of Father’s
              mouth was a lie or an illusion.” N.T. (Jul.
              2, 2015), pg. 6.

              e. Father uses foul language and often
              refers to Mother as a “whore, slut,
              lowlife, dirtball, or Conemaugh Valley
              dirtball.” N.T. (Jul. 2, 2015), pg. 6.

              f. Father “seems to be an expert at
              trying to get your dander up.” N.T. (Jul.
              2, 2015), pg. 7.

              g. Father refused to take E.T.K. to
              football practice during his periods of
              custody, so the child’s playing time was
              limited     during     games.     Maternal
              Grandfather reports that E.T.K. played
              fewer quarters than less talented
              children for this reason. When Maternal
              Grandfather questioned Father about
              football practices, Father claimed he “had
              family events planned.” N.T. (Jul. 2,
              2015), pgs. 10-11.

              h.   When      Father    argued   about
              transportation for custody exchanges,
              Father   told    Maternal   Grandfather,

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J-S17030-16


                “Everyone knows that judge is a bitch.
                We’ll do what we want.” N.T. (Jul. 2,
                2015), pg. 13.

                i. Maternal Grandfather reports that the
                children often returned from Father’s
                home “dirty.” The problem was alleviated
                to some extent as E.T.K. became more
                self- sufficient. N.T. (Jul. 2, 2015), pg.
                14.

                j. For four years, Maternal Grandfather
                provided transportation for Sunday
                custody exchanges. N.T. (Jul. 2, 2015),
                pgs. 15-16. He also assists Mother by
                transporting the children to activities,
                especially E.T.K.’s sporting events. N.T.
                (Jul. 2, 2015), pgs. 5, 8. When E.T.K.
                played in two baseball leagues (one
                chosen by Mother and one chosen by
                Father), Maternal Grandfather ensured
                that the child attended nearly all
                practices and games in both leagues.
                N.T. (Jul. 2, 2015), pgs. 7-9, 17.

          16. James Edward Ardary testified on behalf on
          Mother. He is a Corporal with the Stonycreek
          Township Police Department. N.T. (Jul. 2, 2015),
          pgs. 23-24. He dated Mother beginning in October of
          2013. N.T. (Jul. 2, 2015), pgs. 24, 27. Mr. Ardary
          accompanied Mother to six or seven custody
          exchanges. N.T. (Jul. 2, 2015), pg. 28. On a few
          occasions, Mr. Ardary wore his police uniform and
          carried a firearm at the request of Mother’s attorney.
          N.T. (Jul. 2, 2015), pgs. 28-29.

          17. Mr. Ardary testified as follows:

                a. When Mr. Ardary introduced himself to
                Father for the first time, Father replied,
                “I hear nice things about you, but your
                father is a real sh** bag.” Father also
                told Mr. Ardary, “You better not hurt my
                kids.” N.T. (Jul. 2, 2015), pg. 24.

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J-S17030-16



                b. During the third custody exchange,
                Father called Mr. Ardary “white trash”
                and said, “You better not be having S-E-
                X in front of my kids. I own you. My
                attorney owns you.” N.T. (Jul. 2, 2015),
                pg. 25.

                c. Mr. Ardary stopped accompanying
                Mother to custody exchanges in April of
                2014 when Father contacted Ardary’s
                supervisor, who recommended against
                further involvement. N.T. (Jul. 2, 2015),
                pgs. 29-30.

                d. Father often videotaped custody
                exchanges. N.T. (Jul. 2, 2015), pg. 30.

                e. Father occasionally videotaped Mother
                and Mr. Ardary at E.T.K.’s sporting
                events. Father also made statements
                such as, “There’s that cop causing
                trouble again” or “You’re white trash and
                you deserve each other.” N.T. (Jul. 2,
                2015), pg. 26.

                f. Mr. Ardary described Father as “a type
                of a bully trying to egg you on.” N.T.
                (Jul. 2, 2015), pg. 26.

          18. E.T.K. currently plays football and baseball at
          Conemaugh Valley. N.T. (Apr. 30, 2015), pg. 18.
          Last fall (2014), Father refused to transport E.T.K. to
          football practices during his periods of custody. N.T.
          (Jul. 17, 2015, first session), pg. 18. Father testified
          that E.T.K. “just didn’t want to play football
          anymore” and that he (Father) is “going to do
          whatever I can to make my kids happy.” N.T. (Jul.
          17, 2015, first session), pg. 18. Mother subsequently
          refused to take the child to the baseball league
          Father chose. N.T. (Jul. 17, 2015, second session),
          pgs. 5-6, 8.




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          19. Father claims there is “a definite bias” against
          him at Conemaugh Valley because Maternal
          Grandfather is a teacher and the head football coach,
          and Ms. Castiglione is the head cheerleading coach.
          N.T. (Apr. 30, 2015), pg. 72; N.T. (JUL. 17, 2015,
          first session), pg. 13. Father called Ms. Castiglione a
          “liar.” N.T. (Jul. 17, 2015, first session), pg. L0.
          Father threatened Mother that she would face “the
          same politics in Windber,” where his friends hold
          positions of influence. N.T. (Jul. 17, 2015, first
          session), pgs. 10-11; N.T. (Jul. 17, 20 t 5, second
          session), pg. 16.

          20. Father’s insincere and passive-aggressive
          behavior is displayed in his frequent emails to
          Mother, which contain seemingly cooperative
          statements juxtaposed with hurtful and derogatory
          accusations. N.T. (Jul. 2, 2015), pgs. 44-45. For
          example:

                a. May 24, 2015 email: Thank you for
                picking up lil E.T.K. and K.A.K. today on
                this Memorial Day weekend. My father
                was here and the exchange that [sic]
                went nice and smooth here in Richland
                and see [sic] no reason it has to change.
                While your dad has always picked up the
                kids on Sunday’s [sic] for approx. 4
                years I heard and remember him being
                not unable [sic] to drive out of CV due to
                CV drinking events on memorial day [sic]
                weekends in the past (your mother each
                other and now). The kids do not need to
                see your father drunk .... More important
                is that you [sic] parents didn’t kill
                anyone because of drinking and driving
                like your grandfather Wolfe did on the
                poor kid riding his bike by the beer store
                a block away from your home ....
                MOTHER’S Ex. 2 (JUL. 2, 2015)
                (emphasis added).

                b. May 30, 2015 email (8:02 P.M.): Since
                you are out as usual I ask that you bring

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              E.T.K. and K.A.K. to me tomorrow to go
              with their teams to the Altoona Curve
              game? [sic] .... Don’t say you have plans
              with the kids because if you did you
              would include them in your happy hour
              tonight. Have a good night. Be safe.
              MOTHER’S Ex. 2 (JUL. 2, 2015)
              (emphasis added).

              c. May 30, 2015 email (8:14 P.M.): You
              are not wit [sic] E.T.K. and K.A.K. now
              and the promiscuous behavior you have
              chosen is not my business anymore or
              my care. I simply ask that you work with
              me on letting the kids be active in their
              Richland     t-ball/baseball  trip    ....
              MOTHER’S Ex. 2 (JUL. 2, 2015)
              (emphasis added).

              d. June 27, 2015 email: We need the
              birth certificates back or at least certified
              copies that you took when you were
              given free run to collect your things at
              the home office .... I will pick up the
              slack if I have to do without to see that
              they get a life out of CV especially since
              you and your family can not sit home
              sober on a Saturday night .... MOTHER’S
              Ex. 2 (Jut.. 2, 2015) (emphasis added).

              e. July 7, 2015 email: I would like you to
              extend the same courtesy to me that I
              gave to you when I took E.T.K. and
              K.A.K. to Disney world [sic] .... The kids
              told me you are going to the beach.
              Please provide me the information. Also
              please give your grandmother [sic]
              Marshall my regards. The kids told me
              she has been in the hospital and prior to
              our marriage she was always very nice
              and honest with me even telling me your
              whole family is bad with money. Then
              she got your Aunt Judy who has drug
              and alcohol problems to stop calling my

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J-S17030-16


                office for money. If you would give me
                her room number I would like to send
                her flowers. Have a good day. MOTHER’S
                Ex. 2 (JUL. 17, 2015). N.T. (JUL. 17,
                2015, first session), pg. 16.

                f. July 9, 2015 email:.... No more email
                fighting. Contact info for kids please and
                be safe and have fun. No intercourse in
                front of the kids please that [sic] is not
                proper. MOTHER’S Ex. 1 (JUL. 17, 2015).
                N.T. (JUL. 17, 2015, first session), pg.
                14.

                g. July 20, 2015 email: I took K.A.K. to
                her 5 year wellness checkup last
                Wednesday 7-15-15 and she is fine. I’m
                taking lil E.T.K. to the dentist today to
                get a cavity filled and will pay cash again
                to see to it our children get the health
                and dental care they need. I’ll provide
                you with copies of the bills you [sic] can
                choose to pay half. I’m still shocked your
                sister had an abortion so this should be a
                wakeup call for both of us as to how
                lucky we are to have two healthy kids
                and that karma is real. We lit a candle at
                church today for baby. All the times I
                heard your mom speak of abortion I’m
                sincerely sorry for your loss. No parent
                should have to bury their children once it
                is born and developed especially. Kids
                are what it’s all about and why I started
                the anti-bully movement in our county
                with the help of others. MOTHER’S EX. 2
                (JUL. 2, 2015) (emphasis added).

          21. Father portrays himself as a God-fearing,
          attentive parent who wants only the best for his
          children. See N.T. (JUL. 17, 2015, first session), pgs.
          13, 21-24; N.T. (JUL. 17, 2015, second session),
          pgs. 9-12. In reality, Father is judgmental, verbally
          abusive, and insincere. See N.T. (Jul. 17, 2015,
          second session), pgs. 9-12.

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J-S17030-16



           22. When Mother suffered a miscarriage, Father told
           Maternal Grandfather, “Congratulations on the
           grandchild you almost had.” N.T. (Jul. 17, 2015, first
           session), pgs. 24-25.

           23. Mother occasionally succumbs to Father’s
           goading, such as when she punched him at the gym
           or when she lashes out in emails. See, e.g.,
           FATHER’S Ex. 6 AND 7 (Jul. 17, 2015). N.T. (Apr. 30,
           2015), pgs. 10-12; N.T. (Jul. 17, 2015, second
           session), pgs. 24-25. Mother, however, recognized
           that she was not dealing appropriately with Father
           after the gym incident, and she sought counseling.
           N.T. (Apr. 30, 2015), pgs. 12-13. Although Mother’s
           behavior    has   been   far  from    perfect,   she
           demonstrates significant insight into the situation
           and exhibits a sincere willingness to address the
           parties’ communication issues. N.T. (Jul. 17, 2015,
           second session), pgs. 24-25.

           24. On rebuttal, Eric Danchanko testified on behalf of
           Father. Mr. Danchanko has known Father since they
           played high school football, and they became
           reacquainted in 2002-2003 at the YMCA while lifting
           weights. N.T. (Jul. 17, 2015, second session), pg.
           21. Mr. Danchanko describes Father as “overly caring
           for his children... almost to the point of being overly
           nice to them. You can see that he genuinely loves
           them.” N.T. (Jul. 17, 2015, second session), pg. 22.

     OPINION DATED AUGUST 28, 2015, FINDINGS OF FACT ¶¶ 1-24.

Pa.R.A.P. 1925(a) Opinion, 10/23/15, at 1-7. On August 28, 2015, the trial

court awarded shared legal custody of the Children to Mother and Father,

primary physical custody to Mother, and partial physical custody to Father.

The order established a schedule for Father to exercise his periods of

physical custody.




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      On September 23, 2015, Father timely filed a notice of appeal and

concise statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(a) and (b).    In his brief on appeal, Father raises the following

issues:

      1. Did the trial court err in failing to develop a complete record
      by failing to take testimony from the adult members of Mother’s
      household including her mother and her brothers?

      2. Did the trial court abuse its discretion in modifying Father’s
      periods of custody without directly assessing the benefits of
      stability in custody arrangements and the potential harm to the
      children from disruption of their longstanding patterns of care?

      3. Did the trial court abuse its discretion in making the following
      unreasonable conclusions?

          a. Father is dangerously insincere which adversely affects
          the children’s best interests;

          b. Father is unable to isolate his feelings toward Mother
          when he is with the children and is indoctrinating the
          children with his jaded beliefs;

          c. Father is passive aggressive and dangerous to the
          minor children in that he is a “wolf in sheep’s clothing”
          whose primary goal is to indoctrinate the children with his
          hateful opinions about Mother; and,

          d. Father is inattentive to the children’s physical needs.

Father’s Brief at 18.

      The custody trial in this matter was held in April and July of 2015.

Accordingly, the Child Custody Act (the “Act”), 23 Pa.C.S. §§ 5321-5340, is

applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding




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J-S17030-16


that, if the custody proceeding commences on or after January 25, 2011, the

effective date of the Act, the provisions of the Act apply).

      In custody cases, our standard of review is as follows:

      In reviewing 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, 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., 45 A.3d at 443 (citation omitted).       Furthermore, this Court has

stated:

      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)).

      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard:

            Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating
      the court’s order. An abuse of discretion is not merely an error

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J-S17030-16


      of judgment, but if the court’s judgment is manifestly
      unreasonable as shown by the evidence of record, discretion is
      abused. An abuse of discretion is also made out where it
      appears from a review of the record that there is no evidence to
      support the court’s findings or that there is a capricious disbelief
      of evidence.

Id. at 18-19 (quotation and citations omitted).

      Section 5323 of the Act provides for the following types of custodial

awards:

      (a) Types of award.—After considering the factors set forth in
      section 5328 (relating to factors to consider when awarding
      custody), the court may award any of the following types of
      custody if it in the best interest of the child:

           (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. § 5323. Additionally, section 5323(d) of the Act provides that the

trial court shall set forth the reasons for its decision on the record in open

court or in a written opinion or order.

      Section 5322 of the Act defines the relevant forms of custody as

follows:

      § 5322. Definitions


                                        - 15 -
J-S17030-16


     (a) This chapter.— The following words and phrases when
     used in this chapter shall have the meanings given to them in
     this subsection unless the context clearly indicates otherwise:

                                   ***

     “Legal custody.” The right to make major decisions on behalf
     of the child, including, but not limited to, medical, religious and
     educational decisions.

                                   ***

     “Partial physical custody.” The right to assume physical
     custody of the child for less than a majority of the time.

     “Physical custody.”       The actual physical possession and
     control of a child.

     “Primary physical custody.” The right to assume physical
     custody of the child for the majority of time.

                                   ***

     “Shared legal custody.” The right of more than one individual
     to legal custody of the child.

     “Shared physical custody.” The right of more than one
     individual to assume physical custody of the child, each having
     significant periods of physical custodial time with the child.

     “Sole legal custody.” The right of one individual to exclusive
     legal custody of the child.

     “Sole physical custody.”        The right of one individual to
     exclusive physical custody of the child.

                                   ***

23 Pa.C.S. § 5322(a).

     Section 5328(a) of the Act provides a non-exhaustive list of factors for

the trial court to consider when awarding custody:


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     § 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).

          (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.

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J-S17030-16



              (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.

23 Pa.C.S. § 5328.1

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

is the best interests of the children involved.     23 Pa.C.S. §§ 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 children. Section
____________________________________________


1
   Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1) (providing for consideration of
child abuse and involvement with child protective services).         Although
applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor.




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J-S17030-16


5328(a) of the Act sets forth the best interest factors that the trial court

must consider. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).

      In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained

the following:

      “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 on appeal that the
      trial court considered all the factors. Id.

            Section 5323(d) provides that a trial court “shall delineate
      the reasons for its decision on the record or 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 Section 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, 620 Pa. 727, 70 A.3d 808 (2013). Section
      5323(d) applies to cases involving custody and relocation.
      A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 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.

Id. at 822-823 (emphasis in original).

      In his first issue, Father asserts that the trial court is responsible for

developing a complete record in a contested custody case, notwithstanding

the enactment of the Act. Father’s Brief at 32-38. However, while Father

sets forth applicable case law, he provides no argument on this issue

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relevant to the case at bar. Rather, Father’s brief provides a statement of

the law and an accusation that the trial court failed to develop a complete

record.   Id.   Specifically, Father avers that maternal grandmother and

Mother’s brothers should have testified.      Id. at 32.    Yet, Father fails to

delineate their testimony, its value, or what would have been accomplished

by the trial court compelling the testimony from additional members of

Mother’s family. Father’s argument is completely undeveloped. Accordingly,

we conclude that this issue is waived. See Harris v. Toys “R” Us–Penn,

Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005) (stating that an appellant’s

failure to develop an argument with analysis of relevant authority waives

that issue on review).

      Were we to consider this issue, we would agree with the trial court’s

analysis. The trial court addressed Father’s claim of error as follows:

            In the case at bar, the trial court outlined the order of
      witnesses for the first day of trial in its initial scheduling order:

                  The moving party (Mother) shall testify first;
            the responding party (Father) shall testify next. After
            both parties provide direct and cross examination,
            each party shall be given an opportunity to present
            the balance of his or her case-in-chief. In order to
            ensure that the Court receives approximately equal
            information from both parties during the Hearing,
            each party shall be afforded 1¼ hours for the
            presentation of his or her case, including direct and
            cross examination. Both parties are directed to
            present witnesses in descending order of significance
            when possible. If additional time is needed, the
            hearing will be rescheduled.

      ORDER DATED DEC. 30, 2014, ¶ 2 (emphasis added).

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J-S17030-16


            On the third day of trial, Father presented two rebuttal
     witnesses, namely, himself and Eric Danchanko. See N.T. (Jul.
     17, 2015, first session), pgs. 26 -29; N.T. (Jul. 17, 2015, second
     session), pgs. 4-24. Mr. Danchanko briefly testified about his
     relationship with Father, and he described Father’s love and care
     for the children. OPINION DATED AUGUST 28, 2015, FINDINGS
     OF FACT ¶¶ 1-24 (referencing N.T. (Jul. 17, 2015, second
     session), pg. 22). The trial court considered this testimony to be
     general at best and concluded that Mr. Danchanko lacked any
     personal knowledge regarding pertinent issues, e.g. Father’s
     treatment of Mother via email, Father’s daily routine and care of
     the children, etc. At the conclusion of Mr. Danchanko’s
     testimony, Father declined to present additional rebuttal
     testimony. N.T. (Jul. 17, 2015, second session), pg. 24. Mr.
     Danchanko was Father’s only third-party witness.

            Neither party tendered maternal grandmother or maternal
     uncle as a witness during the trial. The trial court entertained all
     evidence proffered by both parties. The court scheduled two
     additional days for trial when the originally-allotted time proved
     to be insufficient. See N.T. (Jul. 2, 2015); N.T. (Jul. 17, 2015).
     Father’s only third-party witness was Mr. Danchanko, who
     provided limited relevant information. Pursuant to the court’s
     directive to present witnesses in descending order of
     significance, any other witnesses offered by Father presumably
     would have provided less relevant information than Mr.
     Danchanko. For these reasons, the trial court avers that it did
     not fail to develop a complete record.

Pa.R.A.P. 1925(a) Opinion, 10/23/15, at 10-11.

     Thus, had this issue been properly presented, we would have

determined that there was no abuse of discretion. The members of Mother’s

household had long been known to both parties, and there was no argument

that the record needed further development with regard to maternal

grandmother or brothers.

     In his second argument, Father contends that the trial court failed to

assess the benefits of stability in custody arrangements and that the

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J-S17030-16


potential harm to the Children from the disruption of their longstanding

patterns of care constitutes an abuse of discretion. This issue is meritless.

The trial court did address stability, and Father is merely dissatisfied with

the outcome. The trial court found Mother’s testimony more credible, and it

declared that the then-existing custody arrangement did not provide the

stability Father claimed. Pa.R.A.P. 1925(a) Opinion, 10/23/15, at 12.

      As noted above, the trial court was required to consider the factors set

forth in 23 Pa.C.S. § 5328(a), which include the Children’s need for stability.

23 Pa.C.S. § 5328(a)(4). The trial court ruled on this issue as follows:

      [T]he trial court considered Mother’s testimony regarding the
      children’s need for a routine, including consistent bus routes,
      homework, baths, reading, and bed times. N.T. (Apr. 30, 2015),
      pg. 31. It also considered Mother’s testimony regarding the
      practicality and socialization of the children participating in
      activities within their school district. N.T. (Apr. 30, 2015), pg.
      32. See also N.T. (Jul. 17, 2015, second session), pgs. 35-36
      (Mother explaining that E.T.K. would not continue to do well in
      school living in Father’s “capricious lifestyle” because E.T.K.’s
      schoolwork will intensify). The trial court further considered
      Father’s superficial reasons for enrolling E.T.K. in activities
      across school districts and pulling the children away from
      Conemaugh Valley. See e.g., N.T. (Apr. 30, 2015), pg. 72; N.T.
      (Jul. 17, 2015, first session), pg. 13 (Father claims there is “a
      definite bias” against him at Conemaugh Valley). Furthermore,
      the parties have struggled in choosing and implementing a
      stable sports schedule for E.T.K. OPINION DATED AUGUST 28,
      2015, FINDINGS OF FACT ¶¶ 15(g), 18. The trial court carefully
      considered the children’s current schedules, each party’s
      concerns, and the effect of the parties’ strained communication
      on their current arrangement. See id., DISCUSSION ¶ 4. See
      also ORDER DATED JUL. 17, 2015 (recommending that the
      parties engage in communications counseling). The trial court
      concluded that a more stable and routine schedule with activities
      in the children’s home school district would be in the best


                                    - 22 -
J-S17030-16


      interests of the children. OPINION DATED AUGUST 28, 2015,
      DISCUSSION ¶ 4.

             Therefore, the trial court appropriately considered the need
      for stability and continuity in the children’s education, family life,
      and community life. This court submits that it properly awarded
      Mother primary physical custody and Father partial physical
      custody on alternating weekends, Monday and Wednesday
      evenings, two uninterrupted weeks in the summer, and other
      times as mutually agreed by the parties. ORDER DATED AUG.
      28, 2015, ¶¶ 2-3.

Pa.R.A.P. 1925(a) Opinion, 10/23/15, at 12-13.

      After review, it is evident that the trial court aptly considered the

Children’s need for stability under 23 Pa.C.S. § 5328(a)(4). We discern no

abuse of discretion in the trial court’s determination.

      In his third argument, Father asserts that the trial court abused its

discretion when it decided that he is dangerously insincere, indoctrinated the

Children with hateful opinions about Mother, and was inattentive to the

physical needs of the Children. We disagree.

      While Father couches his argument in terms of the trial court’s abuse

of discretion, we conclude that Father is merely asking this Court to find his

testimony more credible than Mother’s testimony, which would usurp the

trial court’s fact-finding role.   We decline this invitation as that is not the

function of this Court on review in custody matters. C.R.F., 45 A.3d at 443

      As noted previously, the trial court discussed the credibility of the

parties and the impact of their behavior on the Children. Pa.R.A.P. 1925(a)

Opinion, 10/23/15, at 3, 5 (quoting Opinion Dated August 28, 2015,


                                       - 23 -
J-S17030-16


Findings of Fact ¶¶ 10 and 21).      The trial court provided the following

discussion on this issue:

             In this case, the trial court made multiple findings
      sufficiently supported by the record regarding Father’s hostility
      towards Mother and the resulting effect on the children.
      OPINION DATED AUGUST 28, 2015, FINDINGS OF FACT ¶¶ 20-
      22; DISCUSSION ¶¶ 1-3, 8-10, 13. Additionally, the trial court
      specifically questioned Father regarding his behavior as follows:

            THE COURT: Do you mind if I ask a question. Sir, so
            many of these emails, I mean, you come up on the
            stand and you portray yourself as a God-fearing,
            moral, admittedly prudish man who wants only the
            best for his children. On paper I am seeing a pattern
            here where you make comments that are really very
            bitter and nasty but appear to be polite, like what
            you said about “please give Grandmother Marshall
            my regards. The kids told me she has been in the
            hospital, and prior to our marriage she was always
            very nice and honest with me.” Up until that point it
            sounds like you’re being nice and kind, and then you
            say “even telling me your whole family is bad with
            money, then she got your Aunt Judy who has a drug
            and alcohol problem to stop calling my office for
            money.” So you like to just give the digs, and you
            seem to be doing the same thing about Mother’s
            family here. So I’m trying to reconcile the persona
            you want me to believe and the persona that shows
            up on paper and that third party witnesses testified
            to at court, and there doesn’t seem to be any
            resemblance between the two. Can you help me
            understand that?

            FATHER: Yes. It is just as business. I am very
            aggressive in business when I’m at business at work
            or if I’m communicating. I would suggest that we do
            Family Wizard or counseling so I can improve upon
            my communication with Mother and not be so - take
            things so harshly or however they might read.




                                   - 24 -
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            THE COURT: So are you saying that anything
            connected with your family you deal with it like
            business and you’re aggressive and this way?

            FATHER: Not with my family. But whenever I’m
            dealing with Mother, I’m trying to be professional,
            and I’m not perfect at it. I have a strong - I don’t
            hate her. I have a strong dislike because I don’t get
            to see my kids half the time now. So oftentimes
            emotion, which is the most powerful thing in the
            world, gets in the way a little bit, and that anger
            comes out and I admit it.

                                      ***

Pa.R.A.P. 1925(a) Opinion, 10/23/15, at 14-15 (quoting N.T., 7/17/15, at

21-22) (internal footnote omitted). Ultimately,

      The trial court asked Father direct questions about his credibility
      (and received unsatisfactory answers), and it carefully observed
      Father’s demeanor. . . . Based on Father’s testimony and
      demeanor, Mother’s testimony, and the testimony of multiple
      third parties, the trial court concluded that Father’s insincere,
      jaded, and passive-aggressive behaviors adversely affected the
      best interests of the children. OPINION DATED AUGUST 28,
      2015, DISCUSSION ¶¶ 1, 8-9.

Pa.R.A.P. 1925(a) Opinion, 10/23/15, at 17.

      After a careful review of the record, we discern no error or abuse of

discretion in the trial court’s credibility determinations or its characterization

of Father’s demeanor and its impact on the best interests of the Children.

Accordingly, we affirm the August 28, 2015 order.

      Order affirmed.




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J-S17030-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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