J-S26008-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.N.                                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

C.M.

                          Appellant                  No. 1885 MDA 2016


              Appeal from the Order Entered October 24, 2016
              In the Court of Common Pleas of Adams County
                      Civil Division at No(s): 08-S-440


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED JUNE 13, 2017

       C.M. (“Father”) appeals from the October 24, 2016 child custody order

denying his motion to modify the existing custody arrangement wherein A.N.

(“Mother”) exercises primary physical custody of their two daughters, S.M.

and M.M., in Rotterdam, New York. We affirm.

       S.M. and M.M. were born of Mother and Father’s marriage during May

2004, and March 2006, respectively. Mother initiated the custody litigation

on March 27, 2008, and has maintained either primary or shared custody

since that date. The trial court summarized the most recent developments

in the case as follows:

       Father resides in Adams County, Pennsylvania[.] . . . Mother
       was permitted by this Court to relocate with the Children to
       Michigan in 2012, then subsequently relocated to New York
       State, first to Saugerties, then to Rotterdam. Since relocating in

* Former Justice specially assigned to the Superior Court.
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     2012, Mother has had primary physical custody of the Children
     and Father has had partial physical custody of the Children on a
     routine basis throughout the year[.]

           ....

           [On August 13, 2014, Father filed a petition to modify the
     custody order.] Father requested a reversal of the current
     physical custody schedule, in effect since October 29, 2014.
     Father's instant petition raises a number of the same issues that
     were considered during the hearing that resulted in the October
     2014 Order denying Father's prior request for primary physical
     custody.

            A pre-trial conference was held on July 8, 2016, at which
     time the parties were instructed to file Criminal History/Abuse
     Verifications for themselves and members of their respective
     households as required by Pa.R.C.P. 1915.3-2 and 23 Pa.C.S.
     §5329.2 An in camera interview of the Children was conducted
     on August 5, 2016. Trial was conducted on October 18, 2016.
     The undersigned denied Father's request for primary physical
     custody and outlined the analysis therefor in a written
     memorandum filed contemporaneously with the Order of Court.

Trial Court Opinion, 12/6/16, at 1-2 (footnotes omitted).

     As it relates to the children’s respective preferences and the trial

court’s conclusion that Mother and T.N. (Stepfather”) changed employment

to alleviate the underlying issues that formed the basis of the custody

dispute, we briefly review the relevant testimony.

     During the in camera hearing, S.M. declared her preference to live

with Father, primarily because she felt that Mother worked too often at her

managerial position at a restaurant and was seldom home. N.T., 8/5/16, at

4, 9. S.M. discussed one specific occasion in which Mother and Stepfather

worked until the early morning hours while she and ten-year-old M.M. were

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home alone.    Id. at 12.   That episode led to police involvement and an

investigation by the local children’s service agency. Id. While the matter

was subsequently closed without any further proceedings, the ordeal

continued to resonate with S.M., and Mother’s extensive work schedule

started to adversely affect the mother-daughter relationship.

      S.M. testified that, beyond the isolated incident discussed above,

Mother and Stepfather are seldom home before 5:00 p.m. on weeknights

and sometimes worked as late as 9:30 p.m. Id. at 5-6. She indicated that

they were also rarely home on weekends.             Id. at 21.     S.M. feels

overburdened by her household responsibilities while Mother and Stepfather

were at work, including caring for her sister and the family’s pets.    Id. at

13-14. She summarized her position as follows, “I feel like it would be neat

to have a parent in the area . . . because without a parent it’s really just me

raising my little sister and I don’t want to do that. I mean, I already wasted

a lot of my childhood doing that.” Id. at 24.

      Additionally, S.M. believes that Mother’s absences impaired her ability

to complete homework and precluded her from engaging in after school

activities. In sum, S.M. testified that she could handle being home alone for

an hour or two, but she considered the custody change when Mother started

arriving home from work progressively later. Id. at 21.

      Unlike her older sister, M.M. was less enthusiastic about the potential

custody change. She told the trial court that she missed Mother when she

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was away from her for extended periods over the summer and thought that

the existing custody schedule was “good.”         Id. at 41.   M.M. recognized

S.M.’s desire to change the custody arrangement, and felt pressured by her

older sister to acquiesce. Id. M.M. was unsure whether or not she wanted

to change the custody arrangement because she sees benefits to both sides.

Id. at 41, 45. She also noted that she and S.M. have been left home alone

while in Father’s custody, albeit during daylight hours.           Id. at 44.

Ultimately, M.M. opined that she would be satisfied with either parent

exercising primary physical custody. Id. at 45.

      During the subsequent evidentiary hearing, Mother described the

incident that led to police involvement as follows:

            I was working for a company that was very low staffed. I
      received a call on a, I believe, it was a Friday evening. They
      asked me to come in and do something for them, so I told the
      ladies they could stay up and wait for me to be back, and I left,
      and they had let the dogs out in the back yard and the neighbor
      called the police.

            When the police arrived [S.M.], my oldest daughter, was in
      her room with her laptop and earbuds in and my other daughter
      went to the front door and opened it, and the officer asked if her
      parents were home, and she said no. And so he believed that
      she was there by herself, so I received a call and I was already
      on my way back to the residence.

N.T., 10/18/16, at 41-42.

      Mother affirmed that the incident was the only occasion that the

children had been left home alone at night. In addition, Mother testified that

she subsequently obtained a new position at Chili’s that permitted her to

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select one of three possible shifts: 7:00 a.m. to 5:00 p.m., 10:30 p.m. to

7:30 p.m., and 3:00 until closing time around midnight.        Id. at 60.   She

knows her schedule one month in advance. Id. at 47, 60. Stepfather works

for the same company and has an identical choice of shifts at a different

location. Id. at 61. As the general manager, Mother is able to coordinate

both schedules to ensure that someone is home with the children on

weekends and by 5:00 p.m., on week days.          Id. at 62, 64. She believes

that the increased flexibility of the new employment will alleviate S.M.’s

apprehensions about enduring another school year where she is confined

home alone with her sister every day after school.

      In denying Father’s petition for modification, the trial court determined

that the underlying issue of Mother’s work schedule was rectified and that

the children would rarely be left alone after school. In addition, it noted that

the revised schedule permits the girls to participate in several extracurricular

activities that were previously unavailable to them. Essentially, the court

reasoned,

      Father's Petition was a wake-up call for Mother. Had she not
      made the changes she has made in her work schedule, the Court
      might have made a different decision. The Court believes that
      Father and Mother are loving and caring parents who want what
      is best for their Children.

See Analysis and      Discussion of Statutory      Factors, 10/24/16, at 6.

Accordingly, it denied the petition for modification.




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        Father filed a timely notice of appeal and raised ten issues in a

concomitantly filed concise statement of errors complained of on appeal.

Instantly, he compresses those ten complaints into one expansive issue,

“Whether the Trial Court erred in misinterpreting several items of testimony

and thus abused its discretion by denying Father’s request for [primary]

physical custody.”      Father’s brief at 7.     Mother, who is not represented,

declined to file a brief.

        We review the trial court’s custody order for an abuse of discretion.

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial

court’s factual findings that are supported by the record and its credibility

determinations. Id. This Court will accept the trial court’s conclusion unless

it is tantamount to legal error or unreasonable in light of the factual findings.

Id.

        In denying Father’s petition for primary custody, which would have

had the effect of relocating the children from Rotterdam, New York to Adams

County, Pennsylvania, the trial court considered the best interest factors

outlined in 23 Pa.C.S. § 5328(a) and the ten relocation factors enumerated

in § 5337(h).1 Section 5328(a) provides an enumerated list of factors a trial

court must consider in determining the best interests of a child:

____________________________________________


1
    In relation to relocation, the Child Custody Law provides:

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

      (h) Relocation factors.--In determining whether to grant a
      proposed relocation, the court shall consider the following
      factors, giving weighted consideration to those factors which
      affect the safety of the 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,
      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.

(Footnote Continued Next Page)


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      § 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
            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.

                       _______________________
(Footnote Continued)

      (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).

The court found that § 5337(h)(1) slightly favored Father and §§ (h)(2), (7)
and (10) favored Mother. As we discuss in the body of the memorandum,
the children’s preferences, considered under § (h)(4), were divided. The
remaining relocation factors were either neutral or inapplicable.




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          (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.

          (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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      As it relates to § 5328(a), the trial court determined that factors four,

ten, twelve, and fourteen militated in favor of maintaining the status quo

and factors five and six favored Father.     The court found that factor one

promoted both parties equally.      Similarly, the benefits of factor seven,

regarding the well-reasoned preferences of the children, were divided

between the parents.     While S.M. had a strong preference to live with

Father, M.M. lacked her sister’s motivation.      The remaining best-interest

factors were determined to be either neutral or inapplicable. See Analysis

and Discussion of Statutory Factors, 10/24/16, at 2-6.

      Father asserts that the trial court abused its discretion or committed

an error of law with respect to § 5328(a)(5), (10), (12), and (14).          In

addition, he challenges the trial court’s consideration of the family dynamics

implicated in § 5328(a)(2) regarding parental supervision, (a)(4) and (10)

concerning the stability in education and satisfying the child’s educational

needs, respectively.

      Father argues that the § 5328(a) factors weigh in favor of awarding

him primary physical custody.     For the reasons that follow, we discern no

abuse of discretion.

      As it relates to Father’s claims that certain aspects of the trial court’s

consideration were contrary to the weight of the evidence, this Court

previously explained,




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              The parties cannot dictate the amount of weight the
           trial court places on evidence. Rather, the paramount
           concern of the trial court is the best interest of the child.
           Appellate interference is unwarranted if the trial court’s
           consideration of the best interest of the child was careful
           and thorough, and we are unable to find any abuse of
           discretion.

       R.M.G., Jr., supra at 1237 (internal citations omitted). The test
       is whether the evidence of record supports the trial court’s
       conclusions. Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d
       533, 539 (Pa.Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014).

       Father’s arguments misconstrue our standard of review and ignore our

deference for the trial court’s role as fact finder.     His position is founded

upon myriad assertions that challenge that aspect of the trial court’s role.

For example, Father contends that: (1) the trial court should have found a

“routine lack of supervision” by Mother; and that the court erred in (2)

“favoring Mother on the issue of education;” (3) not giving more weight to

the girls’ relationship with their extended family; (4) overstating the benefits

of maintaining the existing custody schedule; (5) considering Father’s failure

to disclose his entire criminal history on an affidavit filed with the court; 2 (6)

noting a lack of communication regarding S.M.’s glasses; (7) ignoring

Father’s superior support system; and (8) crediting Mother’s ability to


____________________________________________


2
  Father contends that the inaccuracies in the criminal history verification
affidavit were the consequence of his counsel’s inadvertent omissions.



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balance her work schedule in order to be more attentive to her children’s

needs.

      Tellingly, Father does not complain that the foregoing aspects of the

trial court’s determinations are unsupported by the record or even that the

underlying evidence of record was so unreliable as to make the court’s

considerations pure conjecture. Instead, Father essentially entreats that this

Court reweigh the evidence adduced during the hearing in order to reach

conclusions in his favor.    Contrary to Father's protestations, however, a

party cannot dictate the weight that the trial court attributed to the evidence

or its consideration of any single factor. Indeed, as we explained in M.J.M.

v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), “it is within the trial court's

purview as the finder of fact to determine which factors are most salient and

critical in each particular case.” We simply will not revisit the trial court's

factual findings which are based on the certified record in order to reassess

the weight of the evidence.     J.R.M. v J.E.A., 647, 650 (Pa.Super. 2011)

(“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”). “Ultimately, the test is whether the trial court's conclusions are

unreasonable as shown by the evidence of record.” M.J.M., supra at 334.

Having found that the certified record sustains the trial court's above–

referenced findings of fact, we do not disturb them.




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      However, two of Father’s assertions warrant further examination.

First, Father assails the accuracy of the trial court’s findings that he imbibed

immediately prior to a custody exchange in Phillipsburg, New Jersey, and the

insinuation that he then drove the children for two and one-half hours to his

home in Gettysburg.       As Father accurately observes, the trial court

misconstrued the evidence of record.     In actuality, Father drank beer at a

Phillipsburg restaurant after he arrived with the children from Gettysburg in

anticipation of transferring physical custody to Mother. N.T., 10/18/16, at

86. Hence, the evidence does not support the implication that Father chose

to drink beer and then drive the children home.

      Nevertheless, the trial court’s misstep is harmless.      The trial court

realized its initial mistake of fact and subsequently explained that,

considering Father’s prior convictions for driving under the influence of

alcohol, the decision to drink during the custody exchange and then make

the trek back to Gettysburg was unsound regardless of whether the children

were in the car with him. Trial Court Opinion, 12/6/16, at 7.

      We agree with the trial court’s reasoning.      Father has a history of

substance abuse and DUI-related offenses.         Mother testified about her

experience with Father’s “excessive drinking” and drug use, behavior in

which she believes Father continues to engage, and a DUI arrest since 2012.

Id. at 85-86. In addition to that evidence, the certified record establishes

that Father pled guilty to “Driving While Impaired” in Maryland during 2009,

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and to possession of a controlled substance and DUI in Pennsylvania during

2009 and 1992, respectively. See Plaintiff’s Exhibit 14. While the evidence

regarding the prior criminal offenses is stale in relation to any determination

of Father’s present parenting ability, when viewed through the prism of

Father’s former experiences, his decision to imbibe while at a custody

exchange is compelling evidence of his poor judgment.            As the certified

record substantiates the trial court’s decision, no relief is due.

      The final component of Father’s argument is that the trial court

misconstrued the children’s well-reasoned preference to reside in his primary

physical custody. As the ultimate arbiter of fact, the trial court is best suited

to determine the weight to be given to the children’s preferences.

Cardamone v. Elshoff, 659 A.2d 575, 583 (Pa.Super. 1995).                    The

significance of the    preferences vary with age, maturity and intelligence

together with the reasons given.         Wheeler v. Mazur, 793 A.2d 929

(Pa.Super. 2002).

      Recall that S.M. clearly favored Father in the custody dispute. Indeed,

the record establishes that S.M.’s entreaties to Father were the primary

impetus for Father’s motion to modify the custody arrangement. While the

trial court acknowledged S.M.’s preference, it also determined that her ten-

year-old sibling, M.M., favored residing with Mother or, at a minimum, was

ambivalent about the       potential change.       Ultimately, the trial court

determined that M.M.’s impartiality and Mother’s efforts to alleviate the

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issues that fueled S.M.’s yearning to live with Father favored maintaining the

status quo as to both children.

      The crux of Father’s contention is that, in light of M.M.’s equivocations,

the trial court should have relied upon the strength of S.M.’s wish to reside

with him to bolster “the collective preference of the children” in his favor and

award him primary physical custody. Father’s brief at 16. We disagree.

      Father’s current contention fails for the identical reason that his

foregoing assertions missed the mark.         Plainly, Father is challenging the

weight that the trial court attributed to both M.M.’s ambivalence and

Mother’s ability to rectify the scheduling issues that formed the basis of

S.M.’s well-reasoned preference to move to Pennsylvania.         While Father’s

argument consistently refers to portions of the children’s testimony proffered

during the August 2016 in camera hearing for support of his position that

Mother is inattentive to their daughters’ needs, he neglects to acknowledge

that all of the events that S.M. and M.M. discussed related to Mother’s prior

work schedule. The children have resided with Father since the end of the

academic year, when Mother still held her former employment.             Hence,

Father’s argument essentially assails the trial court for declining to attribute

greater weight to past events than what is anticipated to occur as a result of

the new scheduling opportunities.         Accordingly, Father’s argument is

unpersuasive. As the certified record supports the trial court’s finding that

Mother alleviated the primary cause of her daughter’s distress, the court did

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not abuse its discretion in denying Father’s motion notwithstanding S.M.’s

stated preference to reside with him.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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