J-A09016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.J.R.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

D.J.R.

                            Appellee                  No. 2050 MDA 2015


                Appeal from the Order Entered October 30, 2015
                in the Court of Common Pleas of Lebanon County
                       Civil Division at No(s): 2015-20186


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                             FILED JUNE 03, 2016

         Appellant K.J.R. (“Father”) appeals from the order entered October 29,

2015 in the Lebanon County Court of Common Pleas, which denied Father’s

requested custody modification. After careful review, we affirm.

         In February of 2001, Father and D.J.R. (“Mother”) had a son, J.S.R.

They married in October 2005, and thereafter had a second son, R.J.R., in

2009. J.S.R. is a high school student and R.J.R. is in elementary school. 1



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 J.S.R. and R.J.R. are collectively referred to herein as “the children” or “the
boys”. Mother also has a 20-year old biological son, Damian, who is not
Father’s biological son. Father testified he has always treated Damian as his
own child. N.T. 10/29/2015, p. 28.
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       Mother and Father are separated, but live roughly one and a half miles

away from one another within the same school district.2

       The parties initially agreed to an interim custody agreement whereby

Father had the children from 5:00 to 8:00 p.m. on Tuesdays and Thursdays,

and every other weekend from 5:30 p.m. on Friday until 8:00 p.m. on

Sunday.     This agreement was not a written custody order from the court,

but instead an agreement reached by the parties following a custody

conciliation.

       On March 20, 2015, Father filed a Custody Complaint seeking shared

legal and physical custody of the children and requesting the existing

custody schedule be modified to provide Father with physical custody on a

week on/week off schedule so he could have more time with the boys. The

parties attended a custody conciliation on April 30, 2015, and a custody

mediation on June 22, 2015, which failed to resolve the matter.

       The parties appeared before the trial court for a custody hearing on

October 29, 2015. Following the hearing, the court entered an interim order

denying Father’s custody request, but amending the previous custody

arrangement (“the custody order”).               The custody order modified the


____________________________________________


2
  Father left the marital home at the request of Mother in March 2015.
However, at the time of the custody hearing, Mother had moved out of the
marital residence and Father intended to move back in to the residence.
N.T. 10/29/2015, pp. 8-13.




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previous   arrangement   by   extending   Father’s    Tuesday   and   Thursday

visitation periods by thirty (30) minutes and directing that Mother pick the

children up at Father’s home.     The custody order also modified Father’s

weekend periods of custody to extend an extra 30 minutes, from Friday at 5

p.m. until Sunday at 8:30 p.m., again with Mother picking the children up at

Father’s home. Further, the custody order instructed Father to arrange, and

pay for, daycare for R.J.R.     The order did not analyze or address the

statutory custody factors contained in 23 Pa.C.S. § 5328.

     On November 24, 2015, Father filed a notice of appeal and a concise

statement of matters complained of on appeal.         The trial court filed its

opinion pursuant to Pa.R.A.P. 1925(a) on December 11, 2015 (the “1925(a)

Opinion”). The 1925(a) Opinion addressed the statutory custody factors.

     Father raises the following claims for review:

     I. Is the “Interim Order,” issued by [the] [t]rial [c]ourt final and
     appealable when it was entered after the [t]rial [c]ourt
     completed its hearing on the merits and intended by the [t]rial
     [c]ourt to constitute a complete resolution of the custody claims
     pending between the parties?

     II. Did the trial court commit an abuse of discretion and/or error
     of law by violating Pa.R.C.R. 1915.4 and using an interim order
     to avoid being subject to appeal?

     III. Did the trial court commit an abuse of discretion and error of
     law by modifying a custody order and failing to provide an
     analysis of the factors enumerated in 23 Pa.C.S. [§] 5328?

     IV. Did [the] trial court abuse[] its discretion and commit an
     error of law by severely limiting the parties’ time and
     opportunity to present evidence to the court at [the] time of
     trial?



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Father’s Brief, p. 10.

      This Court’s standard and scope of review of custody orders is as

follows:

      [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 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) (quoting R.M.G., Jr. v.

F.M.G., 986 A.2d 1234, 1237 (Pa.Super.2009)).

      Initially, Father’s first two claims allege that the trial court erred by

labeling the custody order as an “interim” order. See Father’s Brief, pp. 18-

23. Father suggests the trial court issued the order as “interim” to somehow

render its custody order non-appealable. Id.

      An order in a custody case is final and appealable when it is: (1)

entered after the court has completed its hearings on the merits; and (2)

intended by the courts to constitute a complete resolution of the custody

claims pending between the parties.             G.B. v. M.M.B., 670 A.2d 714

(Pa.Super.1996); see also Pa.R.A.P. 341(b)(1) (a final order is any order

that disposes of all claims and all parties).




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        Father addressed the interim nature of the custody order in both his

brief and in his response to this Court’s December 16, 2015 rule to show

cause as to why the appeal should not be quashed as interlocutory. Father

argued the order, although styled an “interim order,” is actually a final

order. Father is correct.

        First, the trial court entered its order after conducting a hearing on the

merits.     Further, the custody order determined custody of the children

without scheduling or requiring further hearings or submissions from the

parties. Accordingly, this was a final order, and therefore appealable.

        In his third argument, Father alleges the trial court erred by modifying

the original custody order without analyzing the statutory custody factors.

See Father’s Brief, pp. 24-26. Although Father is correct, this Court need

not remand to remedy this error.

        Pennsylvania’s Custody Act provides an enumerated list of sixteen (16)

factors a trial court must consider in determining the best interests of the

child or children when awarding any form of custody.          See 23 Pa.C.S. §

5328(a).3

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3
    Section 5328 provides:

        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:
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

          (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, 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.
(Footnote Continued Next Page)


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      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. All of the factors
      listed in section 5328(a) are required to be considered by the
      trial court when entering a custody order.

A.V., 87 A.3d at 822-23 (internal citations and quotations omitted;

emphasis deleted).

      Generally,

      [w]hen 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. All of the factors
      listed in section 5328(a) are required to be considered by the
      trial court when entering a custody order. . . . The record must
      be clear on appeal that the trial court considered all the factors.

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

quotations omitted; emphasis in original).        Section 5323 further requires

that the trial court must set forth its mandatory assessment of the custody


                       _______________________
(Footnote Continued)

          (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(a).




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

See 23 Pa.C.S. § 5323(d); see also A.V., 87 A.3d at 823.            However, a

slight modification of an existing award that does not change the underlying

type of custody – from full to partial custody, for example – does not require

the court to engage in a complete reassessment of the custody factors. See

M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa.Super.2014) (modification of prior

order that does not change the underlying award of custody does not

directly implicate section 5328(a)).

       Here, the trial court’s October 29, 2015 order modified the parties’

existing custody arrangement.4            As previously explained, however, the

existing custody arrangement was not the result of a prior written trial court

custody order.       As such, it was an original custody order entered in

response to Father’s first (and only) custody complaint. Therefore, the trial

court was required to engage in an analysis of the statutory custody factors

in fashioning its order. It did not. This was error.

       Ordinarily, a court does not remedy its failure to conduct a statutory

custody factor analysis by later analyzing the custody factors. See A.V., 87

A.3d at 823 (finding analysis of section 5328 factors necessary prior to

appeal because otherwise “the parties may be left without a meaningful


____________________________________________


4
   The trial court maintained a nearly identical custody arrangement as the
existing agreement between the parties, albeit extending Father’s custody
slightly on Tuesdays, Thursdays, and weekends.



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J-A09016-16



context within which to make their arguments on appeal, particularly as to

discretionary matters”).   In this matter, the trial court did not conduct a

section 5328 analysis until its 1925(a) Opinion. See 1925(a) Opinion, pp. 4-

12.   The analysis contained in the 1925(a) Opinion was complete and

thorough and allowed Father to formulate an intelligent and meaningful

argument based on the trial court’s custody factor analysis in his brief.

Despite having the trial court’s entire custody factor analysis, however, the

only custody factor Father argued in his brief was the court’s failure to hear

testimony from the children. See Father’s Brief, pp. 24-26.

      Remanding the matter to correct the trial court’s procedural mistake

by conducting its custody factor analysis in an order as opposed to a

1925(a) Opinion would be contrary to judicial economy.        A remand would

simply result in the trial court republishing the 1925(a) Opinion’s section

5328 analysis as an order, so that Father could make the same arguments

thereon. In this case, because we know both the trial court’s section 5328

reasoning and Father’s argument against it, remand is unnecessary.

      In his fourth claim, Father alleges the trial court erred by limiting the

parties’ time and opportunity to present evidence at the time of trial. See

Father’s Brief, pp. 24-26. Specifically, Father argues the trial court erred by

not taking testimony from the children and otherwise stunting Father’s

opportunity to present evidence. Id. This argument is unconvincing.

      Initially, Father waived this claim by not objecting during the October

29, 2015 hearing that he was limited in his ability to present evidence

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and/or present the testimony of the children. See Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”); Commonwealth v. Colavita, 993 A.2d 874, 891

(Pa.2010) (“[The Pennsylvania Supreme] Court has consistently held that an

appellate court cannot reverse a trial court judgment on a basis that was not

properly raised and preserved by the parties.”).

      Further, the claim lacks merit. As the trial court noted, Pennsylvania’s

Rules of Civil Procedure for child custody actions provide that the court may,

not must, interrogate a child. See Pa.R.C.P. 1915.11(b). Additionally, the

children were neither present nor called to testify at the October 29, 2015

hearing.   See N.T. 10/20/2015, pp. 153-154.           Father cannot now, on

appeal, remedy his own failure to (1) call his sons to testify at the hearing,

or (2) object to the trial court’s actions or inactions that, with hindsight, he

now feels prejudiced his custody action.

      Upon review of the record, it is evident the trial court’s factual findings

support its factual conclusions, which are reasonable and do not represent a

gross abuse of discretion. Accordingly, we affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2016


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