J-S20026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.A.                                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

C.L.

                         Appellee                     No. 1300 WDA 2015


                   Appeal from the Order August 17, 2015
             In the Court of Common Pleas of Allegheny County
                  Family Court at No(s): FD 06-00656-002

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED MARCH 22, 2016

       Appellant, L.A.1 (“Mother”), appeals pro se from the order entered on

August 17, 2015. We affirm.

       The factual background and procedural history of this case are as

follows. Mother and C.L. (“Father”) became romantically involved in 2005.

Their relationship produced two children, De.L., born in July 2007, and Da.L,

born in August 2008 (collectively “the Children). Mother and Father had a

contentious relationship and the Commonwealth charged Father with

harassment and related offenses for an incident that occurred in June 2008

at the couple’s residence.




1
 We identify the parties to this litigation by their initials in order to maintain
confidentiality for the Children.

* Retired Senior Judge assigned to the Superior Court
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         In 2011, Mother planned to relocate to Mississippi. Prior to leaving for

Mississippi, Mother left the Children with Father who assumed primary

physical custody.       After a brief stay in Mississippi, Mother returned to

Allegheny County, Pennsylvania. Upon her return, she did not seek custody

of the Children on a regular basis.        In 2013, however, Mother requested

custody of the Children on a more frequent basis. Father permitted Mother

to have more custody time.

         On October 25, 2011, Mother filed a complaint in custody seeking

primary physical custody of the Children. On May 22, 2012, because Mother

failed to attend conciliation, the trial court dismissed her complaint. On July

17, 2012, Mother filed a second complaint in custody seeking primary

physical custody of the Children. On January 18, 2013, because both parties

failed    to   attend   mediation,   Mother’s   second   custody   complaint   was

dismissed. On November 21, 2014, the trial court awarded Father primary

physical of the Children and awarded Mother partial physical custody.

         On April 7, 2014, Mother filed a petition seeking custody modification.

On July 24, 2014, a hearing officer filed a report and recommendation

finding that Father had primary physical custody of the Children pursuant to

court order and that Father maintained primary physical custody of the

Children between January 2013 and February 2014. On October 21, 2014,

the trial court adopted the hearing officer’s recommendation and overruled

Mother’s objections thereto. On November 21, 2014, the trial court ordered



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that Father continue with primary physical custody of the Children and that

Mother continue with partial physical custody.    On March 27, 2015, after

conciliation, the trial court again ordered that Father continue with primary

physical custody of the Children and that Mother continue with partial

physical custody.

     On July 7, 2015, a trial was held on Mother’s custody modification

petition. On August 14, 2015, the trial court entered findings of fact. On

August 17, 2015, the trial court ordered that Father continue with primary

physical custody of the Children and that Mother continue with partial

physical custody. This timely appeal followed.2

     Mother raises one issue for our review:

     Whether the [trial] court ignored evidence and witness
     testimony, and whether the [trial] court show[ed] favoritism
     toward [F]ather[?]

Mother’s Brief at 1 (unnumbered).

     In custody cases, our standard and scope of review are as follows:

     In reviewing a custody order, our scope is of the broadest type
     and our standard [of review] 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 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

2
  The trial court did not order Mother to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).

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      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.

R.S. v. T.T., 113 A.3d 1254, 1257 (Pa. Super. 2015), appeal denied, 117

A.3d 298 (Pa. 2015) (citation omitted).

      We have stated:

      the discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.

R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015) (citation omitted).

Thus, we will only find an abuse of discretion “if in reaching a conclusion, the

court overrides or misapplies the law, or the judgment exercised is shown by

the record to be manifestly unreasonable or the product of partiality,

prejudice, bias, or ill will[.]” Estate of Sacchetti v. Sacchetti, 128 A.3d

273, 282 (Pa. Super. 2015) (citation omitted).

      With any custody case, the paramount concern is the best interest of

the child. See 23 Pa.C.S.A. §§ 5328, 5338. Upon petition, a trial court may

modify a custody order if it serves the best interest of the child.          23

Pa.C.S.A. § 5338. Section 5328(a) sets forth the best interest factors that

the trial court must consider. See S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.

Super. 2014).

      Section 5328(a) outlines the following best interest factors:



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     (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)(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.




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      (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.A. § 5328(a).     Although a trial court must consider all of these

factors, “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.”

K.T. v. L.S., 118 A.3d 1136, 1160 (Pa. Super. 2015) (citation omitted).

      Mother raises a general claim that the trial court abused its discretion.3

We address Mother’s various contentions in that claim seriatim.          Mother

argues that the trial court abused its discretion by failing to consider the fact

that Father abused her in 2008 and harassed her in 2014 and 2015. The

trial court, however, explicitly recognized that Father was charged with

harassing Mother in 2008. Findings of Fact, 8/14/15, at 2. It nonetheless

determined that there was no continued risk of harm to the Children or

Mother if Father were awarded primary physical custody of the Children.


3
  We could find Mother’s lone issue waived for failure to cite to the record
and pertinent legal authority.     See Pa.R.A.P. 2101, 2119(b).      In our
discretion, however, we decline to find waiver on this basis.

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See id.    The trial court further found that both parties could provide

adequate physical safeguard and supervision of the Children. See id. Thus,

the trial court adequately considered the second section 5328(a) factor.

     Next, Mother argues that the trial court erred by finding that Father

was more likely than Mother to foster the Children’s relationship with the

other parent.   We conclude that this factual finding is supported by the

record.   Specifically, Father testified that he was “more lenient” with

granting Mother additional custody time with the Children than he was

required by court order. N.T., 7/7/15, at 94. In other words, he chose to

foster the Children’s relationship with Mother by granting her more custody

time. Mother argues that Father withheld custody of the Children on certain

occasions; however, the trial court determined that, based upon the parties’

custody arrangement, Father was within his rights to withhold custody

during those periods.

     Mother also argues that Father admitted to having a conversation with

his brother and his brother’s girlfriend, in the Children’s presence, which

caused the Children to cry. The testimony at trial, however, reveals that the

Children were crying because Mother called the police. N.T., 7/7/14, at 119.

Furthermore, it was Father’s brother and his girlfriend that were speaking

poorly of Mother. See id. at 118.

     Mother contends that the trial court erred by finding that her hostility

towards Father would prevent her from attempting to foster a relationship



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between the Children and Father. The trial transcript reveals Mother’s open

hostility to Father. For example, Mother’s attempt to break up a father-son

moment after one of the Children’s youth football games at Highmark

Stadium evidenced her hostility towards Father.         Thus, the trial court’s

finding that the first section 5328(a) factor weighed in favor of Father is

supported by the record and free of legal error.

         Next, Mother argues that the trial court’s factual finding that Mother

did not seek custody of Children upon her return from Mississippi is

unsupported by the record.        Although Mother testified that she sought

custody of the Children upon her return, the trial court found this testimony

not credible.    Instead, the trial court credited Father’s testimony.   Father

testified that Mother did not seek custody of the Children upon her return

from Mississippi.     N.T., 7/7/15, at 97.   Because, the trial court’s factual

finding is supported by the record, and because credibility assessments fall

within the purview of the trial court, we will not disturb this determination on

appeal.

         Mother next argues that the trial court erred when finding that Mother

does not prioritize education. The trial court’s factual finding in this regard

is supported by the record. At trial, Mother conceded that the Children had

five unexcused absences from school while in her care and were frequently

tardy.     Furthermore, Father testified that the Children were frequently in

trouble at school until he pulled them out of public school and enrolled them



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in a charter school. Thus, the trial court’s determination that Mother did not

prioritize education is supported by the record.

          Mother argues that the trial court erred by finding that Mother does

not provide a stable environment for the Children.            Mother concedes,

however, that she left the Pittsburgh area and moved to Mississippi in 2011.

Father testified that Mother made no arrangements with him regarding this

move and that he made emergency arrangements for the Children’s care

because of Mother’s absence.        Furthermore, Father testified that Mother’s

situation upon returning from Mississippi was not stable.        Thus, the trial

court’s factual finding as to the fourth section 5328 factor is supported by

the record.

          Finally, Mother contends that the trial court erred when it found that

Father attempts to limit his communication with Mother.         Mother instead

claims that she asked Father to stop contacting her. The trial court’s factual

finding is supported by the record. At trial, Father testified that he does not

unnecessarily communicate with Mother. Instead, he only contacts Mother

when required to arrange custody transfers and other necessary tasks. The

trial court accepted Father’s explanation that he avoids communication with

Mother to avoid her anger and insults. Accordingly, the record supports the

trial court’s factual finding on this issue. Hence, this contention merits no

relief.




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      We have carefully reviewed the notes of testimony from the custody

trial and related filings. We have also reviewed the trial court’s findings of

fact and Mother’s brief on appeal. We conclude that the trial court properly

considered and weighed the section 5328 factors without any evidence of

bias, ill will, or prejudice to Mother.     The trial court’s factual findings are

supported by the record and its legal conclusions are free of error. Thus, we

affirm the trial court’s award of primary physical custody to Father.

      Order affirmed.

      Platt, J., joins this memorandum.

      Panella, J., concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2016




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