J-S74030-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.L.D.,                                 :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :
                                        :
C.L.B.,                                 :
                                        :
                        Appellee        :     No. 1598 EDA 2014

                Appeal from the Order Entered April 30, 2014,
            in the Court of Common Pleas of Philadelphia County,
                    Domestic Relations at No. 0C0707383

BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED JANUARY 14, 2015

      I respectfully dissent.

      The trial court failed to discuss the seventeen statutory factors, found

at 23 Pa.C.S. § 5328(a), on the record in open court or in a written opinion

filed contemporaneously with the court’s custody order.     I therefore agree

with the Majority’s conclusion that, pursuant to this Court’s holding in C.B.

v. J.B., 65 A.3d 946 (Pa. Super. 2013), the court’s failure in this regard

constituted error. However, unlike the Majority, I believe that C.B. requires

this Court to vacate the trial court’s custody order and remand the matter to

that court. See C.B., 65 A.3d at 955 (“[W]e now hold that [23 Pa.C.S. §]

5323(d) requires the trial court to set forth its mandatory assessment of the

sixteen factors prior to the deadline by which a litigant must file a notice of




* Retired Senior Judge assigned to the Superior Court.
J-S74030-14


appeal.”); id. (“[F]rom this day forward, trial courts must comply with the

Act as we construe it herein.”).

      Given the time sensitive nature of custody matters, I can appreciate

the Majority’s inclination to insert a prejudice standard into C.B.’s holding.

See Majority Memorandum at 10 (“To vacate the trial court’s April 30, 2014

order on such a procedural technicality in the absence of prejudice to the

appellant would be to elevate form over substance.”). However, C.B. does

not require an appellant to prove prejudice under these circumstances.

Moreover, because I agree with the Majority that the trial court erred in its

assessment of several of the seventeen factors, I do not believe that this

case represents a good candidate for a finding that the court’s error did not

prejudice Mother.

      For these reasons, I would vacate the trial court’s order and remand

for further proceedings.




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