J.   A03043/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.L.                                                    IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA

                      v.

J.D.,


                            Appellant                   No. 1288 MDA 2016


                      Appeal from the Order Entered July 5, 2016
                   In the Court of Common Pleas of Luzerne County
                          Civil Division at No(s): 13335-2013

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

MEMORANDUM BY DUBOW, J.:                                    FILED APRIL 06, 2017

        Appellant, J.D. ("Father"), appeals from the July 5, 2016 Order which

granted the Petition to Modify Custody filed by Appellee, E.L. ("Mother"), and

awarded Mother primary physical custody of A.D. ("Child").             Upon careful

review, we affirm.

        The Child was born in November 2006.              Mother and Father resided

together for   a   short time after the Child's birth but separated when the Child

was approximately seven months old.               Mother returned to her hometown,

over an hour away from Father.              Mother retained primary physical custody

and Father had weekend visitation.              In November 2012, Luzerne County

Children and Youth Agency filed         a   Dependency Petition alleging that Mother

was fabricating sex abuse allegations against Father.            The court held the
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Dependency        Petition       in    abeyance     pending    a   Comprehensive    Family

Assessment, and dismissed the Petition after Mother and Father agreed that

Father would have sole legal custody and primary physical custody of the

Child.     Mother progressed from supervised visitation with the Child to

unsupervised weekend visitation on alternating weekends.

         The parents currently both live in Pennsylvania, over an hour apart.

Both parents are employed. Mother owns                 a   home and lives with her 2 -year-

old son and Maternal Grandmother.                 Father has recently reconciled with his

ex-wife.      They own       a        home together where they live with their two

daughters (ages 9 and 4) and Father's 15 -year -old son who visits on

weekends.

         On October 13, 2015, Mother filed a Petition to Modify Custody seeking

primary physical custody. On July 5, 2016, after an evidentiary hearing and

an in camera discussion with the Child, the trial court granted the parents

shared legal custody, granted Mother primary physical custody, and granted

Father alternating weekend and Wednesday evening visitation.

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

Pa.R.A.P. 1925.

         Father raises the following issues on appeal:

         1. The trial court erred in granting primary physical custody to
           [Mother] when it failed to consider all the factors or
           considered some of the factors not relevant under [23 Pa.C.S
           § 5328], misinterpreted factors 7, 8, 10 and failed to apply
           testimony to factor 12.



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        2. Thetrial court erred in granting primary custody to [Mother]
          when it improperly applied facts and testimony to the factors
          under [23 Pa.C.S. § 5328].

        3. Did thetrial court err as a matter of law and/or an [sic] abuse
          of discretion by granting primary physical custody of the
          minor [C]hild to [Mother], when the entire trial lasted less
          than 2 hours and evidence presented was insufficient to
          support a transfer of custody?

        4. The trial court erred in granting primary custody to [Mother]
          when it failed to consider the relocation factors under [23
          Pa.C.S. § 5337], as the transfer of custody would require a
          relocation of the [C]hild.

        5. The   trial court erred granting primary custody to [Mother]
                                     in
          when it failed to consider the past abuses of [Mother] in
          forcing the [C]hild to undergo unnecessary rape examinations
          and accusing [Father] of [a]buse.

        6. The trial court erred in granting primary custody to [Mother]
           based on an assumption of future events.

        7. The  trial court erred     in   failing to allow [Father] to present
           evidence at trial.

Father's Brief at i-ii (reordered for ease of disposition).1

        When reviewing child custody matters, our standard of review is well

settled: "[o]ur paramount concern and the polestar of our analysis            .   .   .   is

the best interests of the child.           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."


1 Father withdrew the following issue: "The trial court erred in granting
[Mother] primary custody and allowing a relocation without [Mother] filing
the required relocation petition, affidavits and counter affidavits as required
under [23 Pa.C.S. § 5337]." Father's Brief at i, 29.


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

           Further, when this Court reviews                   a   trial court's "best interests"

analysis in custody matters, our scope of review is broad:

           .    .we are not bound by deductions and inferences drawn by
                     .


           the trial court from the facts found, nor are we required to
           accept findings which are wholly without support in the record.
           On the other hand, our broad scope of review does not authorize
           us to nullify the fact-finding function of the trial court in order to
           substitute our judgment for that of the trial court. Rather, we
           are bound by findings 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. Further, on the issues of credibility and weight of
           the evidence, we defer to the findings [of] the trial judge.
           Additionally, appellate interference is allowed only where it is
           found that the custody order is manifestly unreasonable as
           shown by the evidence of record.

Saintz, supra at 512 (quotation and citation omitted).
           The Child Custody Act ("the Custody Act"), 23 Pa.C.S. §§ 5321-5340,

governs all custody proceedings commenced after January 24, 2011.                             E.D.


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v. M.P., 33 A.3d 73, 77 (Pa. Super. 2011). The Custody Act requires             a   trial

court to consider all of the       §   5328(a) best interests factors when "ordering

any form of custody." 23 Pa.C.S.           §   5328(a).2 A trial court must "delineate



2    23 Pa.C.S.   §   5328(a) provides:

         (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) (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.



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the reasons for its decision when making an award of 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).

        As   stated     above,   we   review    Father's   arguments       particularly

recognizing that "we are bound by findings 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.

        Father's first three issues on appeal claim that the trial court did not

properly evaluate the best interests factors enumerated in 23 Pa.C.S.          §   5328

and there was not sufficient evidence presented to support             a   transfer of

custody. Father's Brief at 5-6. We disagree.

        The Custody Act requires that the court articulate the reasons for its

custody decision on the record, in      a   written opinion, or in an order taking

        (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(a).



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into consideration the enumerated factors. M.J.M. v. M.L.G., 63 A.3d 331,

336 (Pa. Super. 2013).        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." Id.

        In the instant case, after hearing evidence, the trial court considered

all of the Section 5328 custody factors and determined that four of them

were not relevant. See Trial Court Custody Opinion, filed 7/5/16, at 6. The

trial court provided    a   written explanation regarding each of the remaining

factors.   See id. at 2-6.     While the trial court found that       a   majority of the

factors balanced equally between Mother and Father, the court found that

Mother was more likely to encourage contact between Father and Child,

Mother was more likely to perform parental duties, Mother was more likely

to maintain   a   stable relationship that nurtures the Child's emotional needs,

and Mother was more likely to attend to the Child's daily physical, emotional,

developmental, educational, and special needs. Id.

        A review of the record supports the       trial court's conclusions. The trial

court heard evidence that Mother lives in         a   stable home, Mother has had      a


stable job for four years, Mother attempts to foster communication between

the parties and will continue to do so, and Mother served as the Child's

primary caretaker for the first six years of the Child's life and has the ability

and desire to serve as the Child's primary caretaker presently.                     N.T.,



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6/22/16, at 15-18, 23-30. In contrast, the trial court heard evidence that

Father       had   a    period      of unstable      housing,   Father   did         not    promote

communication between the parties, Father did not engage the Child in

extracurricular activities, and Father did not serve as the Child's primary

caretaker, but rather his ex-wife did.                Id. at 27-31, 49, 54-57.                As the

record supports the trial court's findings, we find no abuse of discretion.

         Father's fourth issue on appeal claims that because the transfer of

primary physical custody from Father to Mother requires                  a   relocation of the

Child, the trial court should have considered the relocation factors provided

in 23 Pa.C.S. §        5337, prior to changing custody. Father's Brief at 24.

        The Custody Act prohibits          a   parent from relocating unless          a    trial court

approves the proposed relocation or all individuals who have custody rights

to the child consent to the proposed location.                  23 Pa.C.S.       §   5337(b).      In

determining whether to grant               a   proposed relocation,      a   trial court must

consider all of the Section 5337(h) relocation factors to determine                                 a


disposition which        is in   the child's best interests. 23 Pa.C.S.      §   5337(h).3



3    23 Pa.C.S. 5337(h) directs the court to consider the following factors,
                   §
"giving weighted consideration to those factors which affect the safety of the
        If
child
        (1) The nature, quality, extent of involvement and duration of
        the child's relationship with the party proposing to relocate and
        with the nonrelocating party, siblings and other significant
        persons in the child's life.
        (2) The age, developmental stage, needs of the child and the
        likely impact the relocation will have on the child's physical,


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        This Court has concluded that, in       a   custody case "where neither

Mother nor Father is relocating and only the children stand to move to              a


significantly distant location, the relocation provisions of the                Child

Custody Act, 23 Pa.C.S.A.      §   5337, are not per se triggered and the notice

requirement of [S]ection 5337(c) does not apply." D.K. v. S.P.K., 102 A.3d

467, 468 (Pa. Super. 2014) (emphasis added). However, "in such cases, the

trial court shall consider the relevant factors set forth    in   [S]ection 5337(h)



        educational     and     emotional    development,      taking    into
        consideration any special needs of the child.
        (3) The feasibility of preserving the relationship between the
        nonrelocating party and the child through suitable custody
        arrangements,       considering   the    logistics   and    financial
        circumstances of the parties.
        (4) The child's preference, taking into consideration the age and
        maturity of the child.
        (5) Whether there is an established pattern of conduct of either
        party to promote or thwart the relationship of the child and the
        other party.
        (6) Whether the relocation will enhance the general quality of life
        for the party seeking the relocation, including, but not limited to,
        financial or emotional benefit or educational opportunity.
        (7) Whether the relocation will enhance the general quality of life
        for the child, including, but not limited to, financial or emotional
        benefit or educational opportunity.
        (8) The reasons and motivation of each party for seeking or
        opposing the relocation.
        (9) The present and past abuse committed by a party or
        member of the party's household and whether there is a
        continued risk of harm to the child or an abused party.
        (10) Any other factor affecting the best interest of the child.


23 Pa.C.S.   §   5337(h).



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insofar as they impact the final determination of the best interests of the

children." Id.

        Most relevant to this appeal, we noted in D.K. that "[s]everal of the

factors of section 5337(h) are encompassed, either directly or implicitly, by

the custody factors of Section 5328(a)."         Id.   at 476-477.   We opined that

where    a   custody change involves     a   move of the Child to      a   significantly

distant location,   a   trial court should consider "those relevant factors of

Section 5337(h) that are not otherwise encompassed directly or implicitly by

the Section 5328(a) factors pursuant to the catchall provision of Section

5328(a)(16)." Id. at 477. These factors include "the age, developmental

stage, needs of the child and the likely impact the child's change of

residence will have on the child's physical, educational and emotional

development (23 Pa.C.S.A.      §   5337(h)(2))[;] the feasibility of preserving the
relationship between the other parent and the child (23 Pa.C.S.A.                      §


5337(h)(3))[;] and whether the change         in the child's residence will enhance

the general quality of life for the child (23 Pa.C.S.A.    §   5337(h)(7))." Id.

        Father cites D.K., supra, to argue that in the instant case, although

neither parent was relocating, the transfer of custody involved            a   relocation

of the Child and, therefore, the trial court should have considered the

relocation factors. In D.K., the father lived in Pittsburgh, Pennsylvania while

the mother lived in the State of North Carolina, over five hundred miles

away. This Court determined that the parents were located in "significantly



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distant location[s]" and that the court should consider relevant Section 5337

relocation factors.        Id. at 477.
            In S.J.S. v. M.J.S., 76 A.3d 541 (Pa. Super. 2013), Mother filed                a


request for relocation from Erie to Buckingham,               71/2   hour away.   Although

there was no custody order in place at the time, Mother had primary

physical custody of the two children, with father spending significant time

with the children each week. Father objected to the relocation request, and

filed   a    petition for shared custody. The parties then entered into           a   consent

order sharing legal and physical custody, with Mother retaining primary

physical custody.           Following    a   trial on the relocation petition, the court

denied Mother's request for relocation and entered              a    custody order allowing

Mother to retain primary physical custody if she remained in Erie; but if she

chose to relocate, Father would be awarded primary physical custody and

the parties would arrange for Mother's partial custody periods.

            On appeal, this Court observed       that the trial court had properly applied

a    dual analysis of the statutory relocation and the custody factors, with                a


concentration on the relocation factors, "because it recognized that the

custody arrangement was in dispute only in the event Mother chose to

relocate."        Id. at    550.    We further observed that the court properly

considered the impact the move would have on the children in light of their

wide circle of friends, their academic success, and the significant impact the
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change would have on the time the children would have with their father,

who they had seen each week and weekend.

         S.J.S. and D.K. are distinguishable from the instant case. Both S.J.S.

and D.K. involved the children moving               a    significant distance from the other

parent, i.e.,   71/2   hours.   Here, the change of custody would not change the

distance the Child would travel, and has travelled, between parents. As the

trial court observed when it concluded that the relocation factors are not

applicable per se, "both parties         ...   not only reside in Pennsylvania, but in the

same region of Pennsylvania and approximately 1.5 hours from each other."

Trial Court Supplemental Opinion, filed 8/24/16, at 6.

         Notwithstanding the court's determination in the instant case that the

relocation statute was not applicable because the Child would not be moving

to   a   significantly distant location,4 "in an abundance of caution," the court

addressed the "three relocation factors identified as significant by the D.K.

Court where the relocation statute does not apply, but                  a   change in custody

requires the child to move to        a     'significantly distant location.' Trial Court

Op., at 5-7, citing D.K., supra at 477; Pa.C.S.                §   5337(h)(2), (3), and (7).

In doing so, the court observed:

         The age, developmental stage, needs of the child and the
         likely impact the child's change of residence will have on


4 The trial court first concluded that because Appellant did not raise the
relocation factors prior to the filing of his Pa.R.A.P. 1925(b) statement, the
issue is waived. See Trial Ct. Supplemental Op., dated 8/24/16, at 3-4.



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        the   child's physical,          education      and     emotional
        development-1"J
        Mother made arrangements for the Child to attend a morning
        care program at her new elementary school that is run by the
        local YMCA. Further, Mother has expressed a willingness to fulfill
        the Child's desire to take part in extracurricular activities. While
        Father had little information regarding possible activities for the
        Child, Mother indicated that she had previously enrolled the Child
        in dance lessons and that she would like her to continue this
        activity. Considering the Child's young age, it is important that
        she live in an environment where her physical, educational, and
        emotional development is both supported and encouraged
        through available school and community activities.

        The feasibility of preserving the relationship between the
        other parent and the [C]hild[.]
        Due to the fairly short distance between the parties' residences,
        the move to Mother's home in the Towanda area will not inhibit
        Father's ability to exercise significant and regular periods of
        physical custody.

        Whether the change in the [C]hild's residence will
        enhance the general quality of life for the [C]hild.

        The Child was unable to identify any friends near Father's home,
        but indicated to this Court that she has a friend near Mother's
        home. Additionally, as explained previously, the Child has a
        strong interest in participating in school activities and Mother has
        expressed the willingness to fulfill that need.

Trial Court Supplemental Op., at 6-8.

        We conclude that the trial court was not required to apply the

relocation factors per se because the Child will not be moving to               a


"significantly distant location."   Moreover, as recognized in D.K., many of

the relocation factors overlap with the custody factors.        The trial court's

explicit review of the three relocation factors highlighted          in   D.K. as



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potentially separate from the custody factors, demonstrate that the trial

court mindfully considered the Child's relocation and its impact on her best

interests. The trial court's decision is supported by the record, and we find

no abuse of discretion in its     determination.

        Father's fifth issue on appeal      is   that the trial court failed to consider

"the past abuses of [Mother]        in   forcing the [C]hild to undergo unnecessary

rape examinations and accusing [Father] of [a]buse." Father's Brief at 32.

Father argues that the trial court should have taken judicial notice of various

court orders and petitions in the Luzerne County Children and Youth Agency

case.

        Father contends that the trial court has an obligation to develop the

record, if necessary, and cites Lewis v. Lewis, 406 A.2d 781 (Pa. Super.

1979) and Tettis v. Boyum, 463 A.2d 1056 (Pa. Super. 1983) to support

this assertion.

        Lewis and Tettis are legally and factually distinguishable.               While

Father avers in the instant case that the trial court failed to consider the

family's past circumstances, both Lewis and Tettis involve trial courts that

failed to inquire into   a   child's present circumstances.

        In Lewis, this Court determined that the trial court erred when it

rendered   a   custody decision after mother failed to appear to testify and the

record was devoid of evidence regarding mother's current ability to care for




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the child and evidence regarding the characteristics of mother's home.

Lewis, supra at 241.

        In Tettis, this Court stated that "all pertinent facts and circumstances

surrounding the contesting parties must be fully explored and developed[,]"

including the parties' character and ability to care for         a   child, the parties'

home environment, and the parties' financial situation.              Tettis, supra at
1064.          Ultimately, this Court found that the parties had not presented

adequate evidence about the "present capabilities of the parties to provide

the child with      a   stable environment."   Id. (emphasis added). Tettis         and

Lewis are inapposite to the instant case.
        In custody disputes, this Court has discouraged      a   focus on the parties'

past behavior, stating:         "[c]ustody cannot reasonably      be granted on the

basis of   a    parent's unsettled past unless the past behavior has an on -going

negative effect on the child's welfare.        Moreover, the ability to care for the

child is to be determined as of the time of the custody hearing."              Michael
T.L. v.    Marilyn      .7.L., 525 A.2d 414, 418 (Pa. Super.          1987) (citations

omitted). Finally, "[i]n making its decision, the Trial Court must not dwell on

matters buried in the past, but must concentrate only on those matters

which affect the present and the future of the child."      Id. (citation omitted).
        Here, the trial court opined:

        Although the [c]ourt is aware of the earlier incident that caused
        the child to be removed from Mother's home when the child was
        six years old, there was no relevant testimony about that
        incident. The only testimony regarding the investigation was


                                         - 15 -
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        Mother's assertion that she made only one call to Children and
        Youth Services and not repeated phone calls. The [c]ourt does
        not believe that matter would impact the child's current living
        situation.

Trial Court Custody Opinion at 7.

        Father's argument that the trial court should have developed the

record more regarding Mother's past behavior is unpersuasive. As discussed

above, the trial court heard evidence about the parents' present ability to

care for the Child and the record supports the trial court's conclusions.

Additionally, the trial court heard testimony that Northern Tier Counseling

discharged Mother from services and that Luzerne County Children and

Youth has not been involved with the Family since 2013.             N.T., 6/22/16, at

14-15.    Moreover, Father testified that if Mother's custody were increased,

he did not believe   that the Child would be       in any harm.   Id. at   48. A review

of the record reveals that it was adequately developed and that it supports

the trial court's conclusions; thus, we find no abuse of discretion.

        Father's sixth issue on appeal     is   that the trial court erred   in   granting

primary physical custody to Mother "based on assumption of future events."

Father's Brief at 31.   Specifically, Father avers that it was improper for the

trial court to conclude that Father   is   dependent upon his ex-wife for stability

and    to speculate that,    if Father and         his ex-wife,   who      are currently

reconciled, should separate again, the "opportunity for the [C]hild to be

without   a   proper home and/or be uprooted looms large."                   Trial Court

Custody Opinion at 7.


                                       - 16 -
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        The trial court did not err in considering the Child's future.        As stated

above,   a   trial court "must concentrate only on those matters which affect the

present and the future of the child." Michael T.L., supra at 418. A review

of the record reveals that the trial court based its determination on evidence

that the Child and Father were transient between extended family members

when Father separated from his ex-wife. N.T., 6/22/16, at 56-57.

        Because the trial court properly considered the Child's future in its best

interests analysis and the record supports the trial court's conclusion, we

find no abuse of discretion.

        Father's final issue on appeal          is   that the trial court abused its

discretion in "failing to allow [Father] to present evidence at trial." Father's

1925(b) Statement at 2; Father's Brief at 30. We find this issue to be overly

vague, and therefore, waived.

        Rule 1925(b) requires an appellant to "concisely identify each ruling or

error that the appellant intends to challenge with sufficient detail to identify

all pertinent issues for the     judge." Pa.R.A.P. 1925(b)(4)(ii). This Court may

find waiver where       a   Rule 1925(b) Statement is too vague.        In re A.B.,            63

A.3d 345, 350 (Pa. Super. 2013). "When               a   court has to guess what issues

an appellant is appealing, that is not enough for meaningful review            .   .   .   .   [A

1925(b)] Statement which          is   too vague to allow the court to identify the

issues raised      on   appeal is the functional          equivalent of no [1925(b)]

Statement at all." Id. (internal quotation marks and citations omitted).



                                           - 17 -
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        Here, the trial court was unable to address Father's issue, stating,

"[w]ithout greater detail from [Father] regarding this alleged error      .   .   .   this

[c]ourt   is   unable     to   elaborate further on   this   issue."   Trial Court

Supplemental Opinion at 8. Because this issue is overly vague, and the trial

court was unable to address it, we find that Father has waived this issue on

appeal.

        A review of the record supports the      trial court's findings and reveals

that the trial court properly considered the Child's best interests when it

granted Mother's Petition to Modify Custody.

        Order affirmed.

Judgment Entered.




J seph D. Seletyn,
Prothonotary

Date: 4/6/2017




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