J-A02021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.K.                                       :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
                v.                          :
                                            :
                                            :
 J.J.K.,                                    :
                                            :
                      Appellant             :    No. 1058 MDA 2018

               Appeal from the Order Entered May 29, 2018
     In the Court of Common Pleas of Wyoming County Civil Division at
                          No(s): 2014-CV-1172


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 02, 2019

        Appellant, J.J.K. (“Father”), appeals from the May 29, 2018 Order, which

awarded J.K. (“Mother”) primary physical custody and Father periods of partial

physical custody. Upon review, we affirm.

        A detailed recitation of the lengthy factual and procedural history in this

case is unnecessary to our disposition. Relevant to this appeal, Mother and

Father are married and commenced divorce proceedings in October 2014.

They are parents to two children, eleven-year-old J.K. and thirteen-year-old

O.K. (collectively “Children”). In March 2016, the trial court issued an agreed-

upon custody order, awarding shared legal custody of the Children to both

parties, and awarding primary physical custody to Mother. The order awarded

Father partial physical custody on alternating Saturdays year-round and on

every Sunday and one evening per week during the school year.
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       After numerous court filings, including Mother’s Petition for Special

Relief, Father’s Petition for Contempt and Petition to Modify Custody, and

reciprocal Petitions for Protection from Abuse (“PFA”)1, in February 2016, the

trial court issued an Order denying Father’s Petition for Contempt and

modifying the parties’ custody award. Father appealed and, upon review, this

Court vacated the portion of the Order that modified custody and remanded

to the trial court for either an evidentiary hearing or the entry of a custody

order by agreement of the parties. See J.K. v. J.J.K., 178 A.3d 195 (Pa.

Super. 2017) (unpublished memorandum).

       The trial court held a hearing on March 15, 2018, and May 28, 2018.

Father testified that he has worked the past 12 years at Procter and Gamble

as a technician where he works 12-hour swing shifts 14 days per month,

including overnight shifts. N.T. Hearing, 3/15/18, at 14-21, 29, 31. Father

lives in a two-bedroom apartment and sleeps in the living room to ensure

Children each have their own bedroom. Id. at 8-12. Father testified that if

he had 50-50 custody of Children he would ask his employer for a special

schedule or utilize vacation time. Id. at 17-18, 35-36. Father does not have

family support in the area but has one close friend who could watch Children

in an emergency. Id. at 40. Children go to bed at 11:30 PM or 12:00 midnight

at Father’s house. Id. at 34.

____________________________________________


1 The parties agreed to a one year reciprocal PFA Order against each other
after they both alleged injuries sustained from a physical altercation between
the two of them.

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       Mother testified that she has worked for the past 27 years at

Intermountain Medical Group as a Satellite Operations Manager five days

during the week from 8:30 AM until 5:00 PM. Id. at 51-52, 75-79. Mother

resides in the marital home where Children grew up.         Id. at 52-53.     The

maternal grandparents live next door and help take care of Children.          Id.

Mother testified that she primarily helps Children with homework and takes

them    to   doctor’s   appointments   because   Father’s   work   schedule    is

unpredictable. Id. at 54-58. Mother testified that Children often come home

from Father’s house unfed. Id. at 58. Children to go to bed at 9:00 PM at

Mother’s house. Id. at 58.

       Mother testified that she and Father have had numerous disagreements

about custody and Father has called the police twice during custody

exchanges. Id. at 66. Mother stated that, at times, Father has demanded to

take the kids and has violated their custody agreement. Id. at 66-71.

       On May 29, 2018, after a full custody hearing, the trial court awarded

Mother and Father joint legal custody, and Mother primary physical custody

of Children. The trial court awarded Father periods of partial physical custody

of Children, including every weekend that he is not working, one evening

during the week, one full week during the summer, and various holidays.

       Father timely appealed. Both Father and the trial court complied with

Pa.R.A.P. 1925.

       Father raises the following issues on appeal:




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      1. Were the trial court’s conclusions unreasonable as shown by
         the evidence of record?

      2. Did the trial court abuse its discretion or commit an error of
         law by failing to enter a custody order that is in the best interest
         of [Children]?

      3. Did the trial court abuse its discretion or commit an error of
         law in its May 29, 2018 Order in that it awards, grants and
         orders both parties to have shared legal and shared physical
         custody of [Children], but denies [Father] actual shared
         physical custody of [Children] in terms of time spent with each
         parent?

      4. Did the trial court abuse its discretion or commit an error of
         law, based upon the testimony of record below, in limiting
         [Father]’s physical custody of [Children] without any evidence
         or testimony that the Father’s time with [Children] should be
         restricted or unequal to that of [Mother]?

      5. Did the trial court abuse its discretion or commit an error of
         law, based upon the testimony of record below, in failing to
         follow the mandates of [23 Pa.C.S. § 5328(10)] that the [c]ourt
         must consider which party is more likely to attend to the daily
         physical, emotional, developmental, and special needs of
         [Children]? Did the [trial court] err[] in not considering which
         parent has the most flexible schedule and would be best able
         to provide transportation and support to [Children] in attending
         school and therefore erred in failing to find in favor of [Father]?

      6. Did the trial court abuse its discretion or commit an error of
         law, in failing to give [] appropriate weight to the testimony of
         [Mother], who testified that the custody schedule could be
         modified to provide [] Father with additional periods of
         custody?

Father’s Brief at 4-5 (reordered for ease of disposition).

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

requires a trial court to consider all of the Section 5328(a) best interests

factors when “ordering any form of custody.” 23 Pa.C.S. § 5328(a). A trial

court must “delineate the reasons for its decision when making an award of



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custody either on the record or in a written opinion.” S.W.D. v. S.A.R., 96

A.3d 396, 401 (Pa. Super. 2014). See also 23 Pa.C.S. § 5323(a) and (d).

However, “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).

       When reviewing child custody matters and the trial courts consideration

of the Section 5328(a) factors, our paramount concern is the best interests of

the child. See Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006). “The

best interests standard, decided on a case-by-case basis, considers all factors

which legitimately have an effect upon the child's physical, intellectual, moral

and spiritual well-being.” Id. (quotation and citation omitted).

       This Court reviews a custody determination for an abuse of discretion.

In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse

of discretion “merely because a reviewing court would have reached a different

conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial

court abuses its discretion if, in reaching a conclusion, it overrides or

misapplies the law, or the record shows that the trial court's judgment was

either manifestly unreasonable or the product of partiality, prejudice, bias or

ill will.” Id.

       Further, when this Court reviews a trial court’s “best interests” analysis

in custody matters, our scope of review is broad but we are “bound by findings


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supported in the record, and may reject conclusions drawn by the trial court

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

sustainable findings of the trial court.” Saintz, supra at 512 (quotation and

citation omitted). Importantly, “on the issues of credibility and weight of the

evidence, we defer to the findings [of] the trial judge.”      Id. We can only

interfere where the “custody order is manifestly unreasonable as shown by

the evidence of record.” Id.

      In his first four issues on appeal, Father avers that the evidence of

record does not support the trial court’s findings and that the custody order is

not in Children’s best interests. Father’s Brief at 4-5. In his final two issues,

Father avers that the trial court failed to consider evidence regarding Father’s

schedule when evaluating Section 5328(10) and failed to give appropriate

weight to portions of Mother’s testimony when restricting Father’s periods of

partial physical custody. Father’s Brief at 4-5. In response, Mother observes

that Father fails to cite to the record, fails to analyze any case law or statutes,

and fails to develop any actual argument. Mother’s Brief at 11. Mother argues

that “Father catalogues eighteen cases for their general propositions in

custody law and asks [this Court] to overturn the trial court” without engaging

in any actual analysis or argument. Id. at 11. We agree, and, thus, conclude

that all of Father’s issues are waived.

      Failure to conform to the Rules of Appellate Procedure results in waiver

of the underlying issue.    Commonwealth v. Buterbaugh, 91 A.3d 1247,


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1262 (Pa. Super. 2014).      Rule of Appellate Procedure 2119(a) requires a

properly developed argument for each question presented.       See Pa.R.A.P.

2119(a). Specifically, Rule 2119(a) requires the argument to be divided into

as many parts as there are questions to be argued, with distinct headings,

and for each question to be supported by discussion and analysis of

pertinent authority.   Id.    Rule 2119 further requires an appellant to

reference the record in connection with any argument and, specifically

when an appellant argues “the finding of, or the refusal to find, a fact[,]”

the appellant must provide a synopsis of all of the evidence on the point

with reference to the record. Pa.R.A.P. 2119(c), (d).

     Here, Father raises six issues and fails to divide his argument into as

many sections, to reference the record, and to provide a synopsis of

evidence when challenging the trial court’s findings.      Most importantly,

Father fails to support any of his issues with discussion and analysis of

pertinent authority. This Court will not act as counsel and will not develop

arguments on Father’s behalf. See Buterbaugh, supra at 1262. In light

of Appellant’s failure to develop his issues in conformance with our Rules of

Appellate Procedure, our ability to provide meaningful review is significantly

hampered. We, thus, conclude Father’s issues are waived.

     Even if Father had not waived the issues, our review of the record

supports the trial court’s findings and reveals that the court properly



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considered Children’s best interests when it awarded Mother primary physical

custody and Father periods of partial physical custody.2

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/02/2019




____________________________________________


2 We observe that the trial court considered all of the Section 5328(a) best
interests factors and delineated the reasons for its decision in a written opinion
when issuing its custody order. See 23 Pa.C.S. § 5328(a). See also 23
Pa.C.S. § 5323(a) and (d). Our review of the record supports the trial court’s
findings. Consequently, even if Father had properly developed his first four
issues, he would not be entitled to relief. In addition, we are “bound by the
findings supported in the record” and “on the issues of credibility and weight
of the evidence, we defer to the findings [of] the trial judge.” Sainz, supra
at 512. We can only interfere where the “custody order is manifestly
unreasonable as shown by the evidence of record.” Id. Our review of the
record, giving deference to the trial court’s weight of the evidence and
credibility determinations, reveals that the trial court’s conclusions are not
manifestly unreasonable. Thus, even if Father’s final two issues were not
waived, we would conclude they lack merit.



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