J-A14022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.K.M.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

B.R.M.

                            Appellant                  No. 57 MDA 2016


               Appeal from the Order Entered December 9, 2015
                In the Court of Common Pleas of Centre County
                       Civil Division at No(s): 2014-4145


BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                              FILED AUGUST 25, 2016

        B.R.M. (Father) appeals from the December 9, 2015 custody order

that granted legal and physical custody to S.K.M. (Mother) with respect to

the parties’ son, J.B.M., born in June of 2000.      We vacate, in part, and

remand in accordance with the following memorandum.

        Father and Mother are the natural parents of J.B.M., who is the subject

of this appeal, and his older brother, J.R.M., born in March of 1998. On July

2, 2014, the parties separated, and Mother moved out of the marital home

with both sons. N.T., 12/9/15, at 5. Mother filed a complaint in divorce on

October 24, 2014, which included a custody count requesting primary

physical custody of their sons.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A14022-16


       On January 23, 2015, Father filed a petition for custody, wherein he

requested shared legal custody of their sons and shared physical custody of

J.B.M. With respect to his older son, Father asserted that J.R.M. does not

wish to spend time with him, and that Father “will abide by [J.R.M.]’s

wishes.” Petition, 1/23/15, at ¶ 5.

       On February 25, 2015, the trial court issued a temporary order

granting Father and Mother shared legal custody and Mother primary

physical custody of their sons. In addition, the order granted Father partial

physical custody of J.B.M. on alternating weekends and one evening per

week for three hours.1

       Father filed a petition for contempt on March 18, 2015, wherein he

asserted that J.B.M. has not visited him since the issuance of the temporary

order, and that Mother “does not encourage [J.B.M.] to do so but rather

goes along [with] the child’s wishes.”           Petition, 3/18/15, at ¶ 8.   Upon

Father’s request, by order dated April 13, 2015, Father’s petition for

contempt was withdrawn. Further, by separate order on the same date, the

trial court suspended the February 25, 2015 temporary order.

       Following a praecipe for hearing filed by Father, the court scheduled a

custody trial, which occurred on December 4 and 9, 2015.               Father and


____________________________________________


1
  Father states in his brief that the temporary order was issued following a
custody conference. Father's brief at 7.



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Mother testified. In addition, the court conducted in camera examinations of

the parties’ sons in the presence of counsel.

       Father testified on direct examination that, immediately after the

separation in July of 2014, he and J.B.M. visited sporadically. N.T., 12/4/15,

at 5. From September of 2014, until December of 2014, J.B.M. visited him

every Saturday.      Id.    Father testified that J.B.M.’s “last visit in December

coincided with the letter that [Father’s counsel] sent out as far as letting

[Mother’s] attorney know that we would be seeking custody.”             Id. at 6.

Father testified that he requested to participate in counseling with J.B.M.,2

“but what I was told was that Dr. Hemmelstein had talked to [J.B.M.] and

that [J.B.M.] was not interested. . . .”3        Id. at 24.   With respect to his

physical custody request, Father testified that he has “only seen [J.B.M.] 80

hours about [ ] in a year and a half. I’ll take what I can get.” Id. at 38.

       Mother testified that she has encouraged a relationship between

Father and their sons.          N.T., 12/9/15, at 31-40.      She did not testify

regarding her physical custody request, other than to suggest that she and

Father participate in counseling, “to discuss techniques as far as how to

____________________________________________


2
  Father did not testify with respect to when or to whom he made this
request.
3
  Mother implied in her testimony that J.B.M. met with Dr. Hemmelstein on
one occasion, in May of 2015. N.T., 12/9/15, at 68-69. Father testified that
J.B.M. participated in counseling with a different provider from the date of
separation until Christmas of 2014. N.T., 12/4/15, at 11.



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move forward in this difficult time [with their sons].” 4 Id. at 52. Mother’s

counsel introduced an e-mail from Father dated November 22, 2015, shortly

before the subject proceedings, wherein he rejected her suggestion, set

forth in an e-mail she sent to him on the previous day, for co-parenting

counseling.     Father stated, in part, “[i]t is clear that the counseling is

becoming another of your many conditions that you are putting in place in

order for me to see my kids.” Id. at 40; see also Mother’s Exhibit Q.

       By order dated December 9, 2015, and entered on December 10,

2015, the court granted Mother “legal and physical custody” of J.B.M. and

J.R.M. Order, 12/9/15, at 1 (unpaginated). Importantly, the order stated,

“[t]he parties had agreed prior to hearing that actual custody of [J.R.M.] was

not an issue and it was primarily [J.B.M.].” Id. With respect to its physical

custody award involving J.B.M., the court stated:

       The [c]ourt is satisfied that a previous [o]rder saying that the
       child [J.B.M.] would see his Father has not been successful and
       the [c]ourt is satisfied that an order that [J.B.M.] has to see his
       Father at any given time to be counterproductive. The [c]ourt is
       satisfied it cannot cure the ills that have arisen over six to eight
       years in a four-hour hearing or bright line order. The [c]ourt
       declines to do so. The [c]ourt would hope that the Father and
       [J.B.M.], over time, will be able to see things from each other’s
       perspective and perhaps have a good relationship, if not now,
       hopefully in the future.

Order, 12/9/15, at 3 (unpaginated).

____________________________________________


4
 Mother requested sole legal custody during the hearing. N.T., 12/9/15, at
17.



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       Father timely filed a notice of appeal and a concise statement of errors

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

trial court filed its Rule 1925(a) opinion on January 18, 2016.

       Father raises the following issues for our review:

       I. Did the trial court abuse its discretion in finding that the best
       interests of [J.B.M.] dictated that Father not be awarded any
       time with his son?

           A. Was there any evidence to establish that time between
           Father and son would be detrimental to the child’s best
           interests?

           B. Was the fact that the child did not comply with the
           prior order a sufficient reason to deny Father any time
           with son?

           C. Did the court’s order estrange Father and son?

           D. Was there any evidence to establish that Father is a
           grave threat to his son?

       II. Did the trial court abuse its discretion in including in the
       custody order directives with respect to a 529 account and
       custodial account?[5]

Father’s brief at 6.

       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
____________________________________________


5
  In his statement of questions involved, Father states that, “[t]his issue was
raised in the Concise Statement of Matters Complained of on Appeal, but is
being withdrawn.” Father’s brief at 6. Therefore, we do not consider this
issue.



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      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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

      “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). “The best-interests standard, decided on a case-by-case

basis, considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well[-]being.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).

      Section 5328(a) of the Child Custody Act (“Act”), 23 Pa.C.S.A. §§

5321-5340,    enumerates    the   factors   that   a   court   must   consider   in

determining the best interests of a child. It provides as follows.

      § 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


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J-A14022-16


         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.

           (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.


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J-A14022-16


           (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(a).

      Section 5323(a) provides, in relevant part:

      5323. Award of Custody.

      (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 is 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.A. § 5323(a).    The Act defines the types of custody awards, in

relevant part:

      § 5322. Definitions.

                                      ...

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


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      “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 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.A. § 5322(a).

      Instantly, the subject order granted sole legal and sole physical

custody to Mother. In the order, the court considered the Section 5328(a)

custody factors and delineated the reasons for its decision, set forth above.

In its Rule 1925(a) opinion, the court reiterated its findings with respect to

the statutory factors.    See Trial Court Opinion, 1/18/16.   Specifically, the

court found that Section 5328(a)(1) and (4) weighed heavily in Mother’s

favor. In addition, the court weighed Section 5328(a)(3), (9), and (10) in

Mother’s favor. The court did not weigh any of the factors in Father’s favor.




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       Nonetheless, Father argues that the court failed to consider the best

interests of J.B.M. in determining its physical custody award.6 Father asserts

that the court, “[m]erely allow[ed] [J.B.M.] to control the situation by

deciding if and when he will visit with [F]ather[,] [and that this] amounts to

a side-stepping of the [c]ourt’s responsibility as it relates to [c]ustody

decisions.” Father’s brief at 21. For the reasons that follow, we agree.7

       J.B.M. was fifteen years old and in tenth grade at the time of his in

camera testimony.          On cross-examination by Father’s counsel, J.B.M.

acknowledged that from the time his parents separated in July of 2014, until

December of 2014, he visited Father at the marital home on weekends, not

including overnights.       N.T., 12/4/15, Part 2, at 25-26.8   He testified as

follows:

       Q. And the reason you stopped going over, I think, is because I
       filed for a custody hearing, isn’t that correct? And you felt like
       we were trying to force you to then come over?

       A. I also think that was after the whole car thing, whenever we
       went back to the house.[9]
____________________________________________


6
  Father does not assert an abuse of discretion by the court in its legal
custody award. Therefore, we do not consider it.
7
  Based on this disposition, we do not address Father’s additional claims set
forth in his brief.
8
  The in camera testimony of J.B.M. and his brother is included in a separate
transcript dated December 4, 2015.
9
 J.B.M. was referring to an incident where he and Mother went to the
marital home to retrieve personal property. He testified that, as they were
(Footnote Continued Next Page)


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J-A14022-16



Id. at 26.

      With respect to why he did not visit Father pursuant to the temporary

custody order, J.B.M. testified on inquiry by the trial court, “[i]t’s just like

[Father] hasn’t been very easy-going with any of the stuff that we have

needed.”     Id. at 5.       For instance, J.B.M. explained that Father did not

promptly “sign[] off on [J.R.M.]’s classes” and on selling the van that was

marital property. Id. at 5-6. He concluded, “[a]nd so it’s like just repeated

dragging his feet has shown -- like [Father] hasn’t changed that much from

whenever we were at the marital home, and that wasn’t pleasant at all[.] . .

.” Id. at 6.

      J.B.M. testified regarding his custody preference, “I just don’t feel like

I’m ready to start visiting [Father] again, so I’d prefer it to be like my choice

to see whenever I visit him.” Id. at 4. On cross-examination by Mother’s

counsel, J.B.M. testified he would feel ready to see Father when he sees “a

change.” Id. at 13. He continued:

      Q. What is it that you think your dad needs to change?

      A. [J]ust he hasn’t been very cooperative with anything.

                                            ...


                       _______________________
(Footnote Continued)

backing out of the garage in their car, Father “attempted to close the garage
door to keep us there for some reason, and then, as we backed out, he
flipped off my mom, big old bird.” N.T., 12/4/15, Part 2, at 19.



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        [A]nd with this whole custody thing, hearing thing, it’s just
     like he’s trying to almost like force me to go see him.

     Q. And you don’t like that?

     A. No.

                                      ...

     Q. [I]s your dad mean to you?

     A. I wouldn’t say mean to me, specifically. It’s just that he --
     like you kind of had to walk on eggshells, because . . . he would
     just get really irritated over the simplest and stupidest of stuff.

     Q. And when he was irritated, what would happen?

     A. A lot of yelling.

     Q. And was that at you?

     A. No, not really.

     Q. Who was it at?

     A. [J.R.M.] and mom, usually.

                                      ...

        And then we’d have like a big four-hour lecture. . . .

     Q. How often would that occur?

     A. Probably at least once a month.

                                      ...

        It was like a cycle, basically.

                                      ...

        He would get angry, then he would have the big lecture, and
     then he would have that like maybe two-week period of calm,


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J-A14022-16


      walking on eggshells kind of thing, and then he would get angry
      again and then just keep kept going and going.

Id. at 14-16. Significantly, J.B.M. testified:

      Q. [H]ave you had a chance to talk to your dad about his
      behavior?

      A. No, not really.

Id. at 16.      However, on cross-examination by Mother’s counsel, J.B.M.

testified:

      Q. Would you be willing to return [to counseling] and maybe
      work with your dad in that context, a therapeutic context?

      A. Preferably not.

                                      ...

        I just don’t like counselors . . . because it’s just a stranger
      and he expects you to like throw out your heart to a stranger
      who is supposed to help you.

      Q. Would you agree that you and your dad might need some
      help to try and get back on track?

      A. I mean, I guess I prefer there not to be counseling[.] . . .

      Q. So who might you suggest?

                                      ...

         Is there somebody that you know that might be willing to get
      involved and help?

      A. I mean, I suppose maybe a youth minister.

Id. at 21-23.

      Upon careful review, we are constrained to agree with Father that the

trial court abused its discretion in fashioning its physical custody award. By

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J-A14022-16


concluding that an order granting Father partial physical custody would be

“counterproductive” and not “cure the ills” that have arisen between Father

and J.B.M., the court failed to consider J.B.M.’s best interests, contrary to

the Act and to established case law.

        This Court has long held that, in child custody disputes, a trial court

“ha[s] authority and the responsibility to attempt to save any family

relationship which existed.” Lewis v. Lewis, 414 A.2d 375, 378 (Pa. Super.

1979) (citing Commonwealth ex rel. Ermel v. Ermel, 393 A.2d 796 (Pa.

Super. 1978). To the extent the court inferred in its order that it would be

in J.B.M.’s best interest to have “a good relationship” with Father, it

accepted no responsibility to attempt to save what existed of the parent-

child   relationship   and/or   to   foster   it.   See   Order,   12/9/15,   at   3

(unpaginated) (“The [c]ourt would hope that the Father and [J.B.M.], over

time, will be able to see things from each other’s perspective and perhaps

have a good relationship, if not now, hopefully in the future”). We hold that

this was an abuse of discretion.

        Indeed, the record establishes that J.B.M. willingly visited Father every

Saturday for three months following the parties’ separation, from September

until the end of December of 2014.            Father’s counsel introduced e-mails

and/or text messages to Father from Mother indicating that J.B.M. “had a

good time” during the visits.        N.T., 12/4/15, at Father’s Exhibit 1.    As of

December 12, 2014, Mother e-mailed Father and informed him that J.B.M.


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“would like to set up a routine schedule where every other weekend he is

spending all day with you – a [12:00] noon - 8 p.m.ish situation.        Then

every other weekend, like this one, he would like a shorter visit such as a

dinner or a movie.” Id. (emphasis in original). Significantly, by the end of

December 2014, the record demonstrates that J.B.M. decided not to visit

Father any longer after learning that Father planned to file a petition for

custody, observing the incident in the garage between Father and Mother,

discussed above, and his additional knowledge of disputes between the

parties that had occurred. N.T., 12/4/15, Part 2, at 5-6, 26.

     Thereafter, besides seeing Father in January of 2015 to open

Christmas gifts, J.B.M. testified that the only other time he visited with

Father was on Memorial Day of 2015, when he and his brother went to an

IHOP restaurant with Father and then to the Penn State Arboretum. Id. at

26-28. J.B.M. implied in his testimony that no problem occurred during the

most recent visit with Father other than “it just felt like we were tense,

though, and awkward.”     Id.   J.B.M. testified that Father continues to text

him, and that he texts Father back, “if I remember.”       Id.   Importantly,

Father testified that J.B.M. answers telephone calls from him when he is

sick. N.T., 12/4/15, at 22. J.B.M.’s testimony was consistent with that of

Father because he stated that his last telephone conversation with Father

was “[t]he last time I was sick at home, which -- maybe a month and a half

ago.” N.T., 12/4/15, Part 2, at 20.


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      Thus, the evidence demonstrates that, at the time of the parties’

separation in 2014, a relationship existed between J.B.M. and Father, and

that they spent time together on a weekly basis for at least three months

following the separation.    The evidence further demonstrates that J.B.M.

developed increased negative feelings toward Father as the separation and

divorce matters between his parents progressed, causing him to cease all

physical contact with Father. We hold that the court abused its discretion by

not considering whether the lack of contact between Father and son is

contrary to J.B.M.’s best interest.

      Accordingly, we vacate the custody order insofar as it awards sole

physical custody of J.B.M. to Mother.      We remand this matter to the trial

court to consider the best interests of J.B.M. with respect to the physical

custody award. In so doing, the trial court’s consideration shall include, but

not be limited to, whether counseling between Father and J.B.M. is

necessary to attempt to restore and/or save the parent-child relationship.

In addition, the trial court shall consider all of the Section 5328(a) custody

factors and delineate the reasons for its decision pursuant to all relevant

statutory and case law. See A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014);

23 Pa.C.S.A. § 5323(d).

      Pending the trial court’s consideration of J.B.M.’s best interest in

accordance with this memorandum, the trial court immediately shall

reinstate the temporary custody order entered on February 25, 2015, insofar


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J-A14022-16


as that order granted Father periods of partial physical custody of J.B.M. on

alternating weekends and one evening per week for three hours. The trial

court has discretion to require that a mutually agreed-upon third party

supervise the custodial periods or, in the alternative, that custody is

exercised in a public location. In addition, the trial court may require Father

to utilize a portion of his weekly period of partial physical custody to speak

jointly with J.B.M. and a counselor or a youth minister of J.B.M.’s choosing,

provided that the failure to select a mediator will not impede Father’s visits

with his son. If J.B.M. is unable to select a qualified person to mediate his

grievances with Father, or the parties cannot agree on an acceptable third

party to supervise the weekend visits, the trial court will appoint one.

Mother and Father shall split equal responsibility for any fees and costs

associated with supervision and counseling.

      Order vacated, in part, and affirmed, in part.      Case remanded for

further proceedings. Jurisdiction relinquished.

      Judge Bowes joins in this memorandum.

      Judge Platt files a concurring and dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2016

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