J-A25029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.C.S.-R.                                               IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

P.R.

                            Appellant                        No. 790 EDA 2014


                   Appeal from the Order of February 18, 2014
                 In the Court of Common Pleas of Wayne County
                     Domestic Relations at No.: 398 DR 2011


BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                                FILED NOVEMBER 07, 2014

       P.R. (“Father”), pro se, appeals the February 18, 2014 order that

granted D.C.S.-R (“Mother”) primary physical custody of their son, J.P.R.

(“Child”), who was born in February of 2009. The order also granted shared

legal custody and established a schedule of partial physical custody for

Father.

       The record supports the following recitation of the history of this case.

The parties married on October 2, 2004 in New Jersey. On August 8, 2011,

Mother filed for divorce. At the time of filing, Mother lived in Wayne County

and Father lived in Bucks County.              Mother has three children from a prior

marriage. On September 1, 2011, Mother filed a custody complaint.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       On September 20, 2011, Mother obtained a protection from abuse

(“PFA”) order against Father that provided Father with custody of Child every

other weekend.      On November 14, 2011, the court entered an interim

custody agreement that provided for the same custody as outlined in the

PFA.      On January 17, 2012, the court entered another interim custody

agreement that outlined the same custodial time.

       On March 16, 2012, a court-appointed master began a custody

hearing. Hearings continued sporadically until June 21, 2012. On June 29,

2012, the master issued his report. On July 31, 2012, the court entered a

custody order adopting that report and providing for joint legal custody,

shared physical custody during the summer of 2012, whereafter custody

reverted to the every other weekend schedule that had previously been in

effect.

       Much of the custody litigation has stemmed from Child’s special needs.

The parties disagreed about what services Child needs and who should

provide those services.   The Early Intervention Program in Wayne County

evaluated Child in 2011 and identified a feeding/eating issue, with an

underlying sensory-processing component.       The program established an

Individualized Education Plan (“IEP”) for him and implemented appropriate

services.    Child has received occupational therapy relating to his eating

issues in Wayne County.        In addition, Child has received bi-monthly

treatment from psychologist Wendy Matthews, Ph.D. Father takes Child to

these sessions because Dr. Matthews’ office is close to his home. At some

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point, the parties agreed to modify custody to extend Father’s custody

through Sunday night so that Child could attend these Monday sessions with

Dr. Matthews.        Although Child was evaluated at Children’s Hospital of

Philadelphia and was put on a waiting list for its Day Feeding Program, Child

was not enrolled the Program because Mother and Father disagreed about

the program. With the exception of Dr. Matthews, Child’s current treatment

providers are located in the Wayne County area.

        The parties divorced on July 19, 2013.      On September 23, 2013,

Father commenced the current phase of this litigation when he filed a

petition to modify custody and for relocation.1 The trial court held hearings

on Father’s petition on December 10, 2013, and January 24, 2014.

        When Father filed his petition, per the standing custody order, Mother

had primary physical custody and Father had periods of partial physical

custody on alternate weekends from Friday to Sunday.          By the parties’

agreement, Father also had custody of Child on alternate Mondays so that

Child could attend therapy sessions with Dr. Matthews. When the hearings

occurred, Mother had been living with her parents for approximately one

year.    Mother’s boyfriend also lived with Mother, Child, and her parents.

Father had lived in Bucks County for at least three years.       The parties’



____________________________________________


1
     While Father titled his petition as one for relocation, Father actually
sought a change in primary custody.



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homes are approximately three hours apart, and both are appropriate

residences for Child.

       Father’s closest relative, a sister, lives in New York City and travels to

Bucks County to visit Father and Child. Father lives near many of Mother’s

relatives, but does not have regular contact with them.         Child’s maternal

grandparents assist Mother in caring for Child. Mother’s three children from

her prior marriage reside primarily in New Jersey with their father. Mother

and Child make the six-hour round trip to New Jersey to visit with Mother’s

other children at least once per month.

       The trial court found that Child had “made a lot of progress” with the

services he receives, and found that both Mother and Father are actively

involved in Child’s care.           Trial Court Order and Opinion (“T.C.O.”),

2/18/2014, at 3.         Child attends a pre-kindergarten program in Wayne

County from 12:30 p.m. until 3:30 p.m., Tuesdays through Fridays. Child

also attends the Philadelphia Christian Center Academy every other Monday

when he is with Father.          On February 18, 2014, the trial court issued an

opinion and order providing for shared legal custody, primary physical

custody with Mother, and every other weekend partial custody with Father.

       On March 11, 2014, Father filed his notice of appeal.        He filed his

statement of matters complained of on appeal on March 27, 2014.2 On April

____________________________________________


2
      Pa.R.A.P. 1925(a) requires that, in Children’s Fast Track appeals such
as this one, the concise statement of errors complained of on appeal shall be
(Footnote Continued Next Page)


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25, 2014, the trial court filed a statement pursuant to Pa.R.A.P. 1925(a)

adopting its February 18, 2014 opinion.

      Father presents the following questions for our review:

      I. Did the trial court err and/or abuse its discretion in relying on
      and/or in applying the relocation factors of 23 Pa.C.S.A.
      § 5337(h) to the instant matter, where the parties have resided
      in two separate counties within this Commonwealth and this
      Court’s jurisdiction for several years prior to the custody hearing,
      and where they had been exercising their custodial time in their
      respective residences during that time?

      II. Did the trial court err and/or abuse its discretion in finding
      factor one of 23 Pa.C.S.A. § 5337(h) neutral as to its application
      to either Mother or Father, rather than in favor of Father, or in
      finding factor two of 23 Pa.C.S.A. § 5337(h) in favor of Mother,
      where said determination was contrary to the determination
      made in factor ten of 23 Pa.C.S.A. § 5328(a)?

      III. Did the trial court err and/or abuse its discretion in failing to
      give proper weight to factor 7 of 23 Pa.C.S.A. § 5337(h)?

      IV. Did the trial court err and/or abuse its discretion in finding as
      part of factor 10 of 23 Pa.C.S.A. § 5337(h) and/or in concluding,
      drawing an inference or deduction that a “change” in [Child’s]
      “routine” may hinder or be detrimental to his progress?

      V. Did the trial Court err and/or abuse its discretion in
      determining that factor 4 of 23 Pa.C.S.A. § 5328(a) and factor 5
      of 23 Pa.C.S.A. § 5328(a) favor [M]other, where the testimonial
      and documentary evidence shows otherwise?

      VI. Did the trial court err and/or abuse its discretion in
      determining that factor one, factor three or factor six of 23
      Pa.C.S.A. § 5328 (a) are neutral as to their application to either
                       _______________________
(Footnote Continued)

filed and served with the notice of appeal. Father did not do so. However,
we have accepted Father’s late filing because Mother did not object or claim
any prejudice resulted from it. See In re K.T.E.L., 983 A.2d 745, 748 (Pa.
Super. 2009).




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      Mother or Father, rather than in favor of [F]ather, or in not
      considering factor 11 of 23 Pa.C.S.A. § 5328(a)?

      VII. Did the trial court err and/or abuse its discretion in
      determining that factor 12 of 23 Pa.C.S.A. § 5328(a) favors
      Mother, and that factor 13 of 23 Pa.C.S.A. § 5328(a) is neutral,
      rather than in favor of [F]ather?

      VIII. Did the trial court err and/or abuse its discretion in not
      considering factor 14 of 23 Pa.C.S.A. § 5328(a) and/or in not
      drawing a negative inference against Mother, where Mother
      failed to disclose that her paramour was a member of her
      household when she filed her December 2, 2013 pre-trial
      statement and submitted her Criminal Verification and Abuse
      Affidavit around the same time?

      IX. Did the trial court err and/or abuse its discretion in
      determining that factor 9, 10 or 15 of 23 Pa.C.S.A. § 5328(a)
      are neutral as to their application to either Mother or Father,
      rather than in favor of Father?

      X. Did the trial court err and/or abuse its discretion in failing to
      consider, address or make a finding, conclusion, draw an
      inferences [sic] or deductions on whether the events that have
      transpired since the entry of the July 31, 2012, custody order
      constitute a significant change in circumstances?

      XI. Did the trial court err and/or abuse its discretion in failing to
      address, make a finding, conclusion or draw an inference or
      deduction on whether Mother unilaterally relocated from the
      marital home in New Jersey to Wayne County, PA on or about
      June of 2011, or if this intestate [sic] move was done to evade
      the relocation, custody and jurisdictional laws of the State of
      New Jersey, and how this bears on Mother’s fitness to be
      awarded custody of [Child]?

      XII. Did the trial court err and/or abuse its discretion in the
      visitation section of the order, by eliminating all of Father’s
      Holidays, Fall and Spring vacations to which Father was entitled
      to under the prior custody order or by depriving Father of a fair
      and reasonable summer schedule- at least 50-50 shared time?

Father’s Brief at 2-5 (citations modified).

      Our scope and standard of review are as follows:


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     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
     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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012).

     We have stated:

     [T]he 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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006). Additionally,

     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.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)).




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      “Upon petition, a court may modify a custody order to serve the best

interest of the child.”   23 Pa.C.S.A. § 5338(a).     To determine the child’s

best interests, the trial court must consider the following factors:

      (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.


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         (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.A. § 5328(a).

      In his first issue, Father claims that the trial court erred in considering

the relocation factors enumerated in 23 Pa.C.S.A. § 5337(h) in addition to

the best interests factors in section 5328.     Father contends that, because

neither parties intended to relocate, this was not a relocation case. Father

asserts that it was, therefore, error for the court to consider the relocation

factors. Father’s Brief at 34-35.

      This Court recently addressed the applicability of the section 5337

custody factors when custody of a child changes from one parent to another

and the parties live a significant distance from each other, but neither parent

relocates. In D.K. v. S.P.K., ___ A.3d ___, 2014 WL 4923111 (Pa. Super.

Oct. 2, 2014), we held as follows:


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      [W]e hold that a custody case where neither parent is seeking to
      relocate and only the children would be moving to a significantly
      distant location if custody shifted from one parent to another
      does not per se trigger section 5337 of the Child Custody Act.
      Thus, the notice requirement of section 5337(c) does not apply
      in such cases. Trial courts should still consider the relevant
      factors of section 5337(h) in their section 5328(a) best interest
      analysis. As we have explained, several of the relevant factors
      of section 5337(h) are encompassed, directly or implicitly, by the
      custody factors listed in section 5328(a). Any relevant section
      5337(h) factor that is not expressly encompassed in section
      5328(a) should be considered by the trial court under the
      catchall provision of section 5328(a)(16).

Id. at 10. Thus, where a petitioner asks a trial court to change custody of a

child from one parent to another who lives a significant distance away, the

trial court needs to consider only those relocation factors that might be

relevant to its deliberations, and only as a “relevant factor” under subsection

5328(a)(16).

      Even though this Court decided D.K. after the trial court issued its

opinion in this case, we cannot fault the trial court for considering the

relocation factors here because Father was the party who raised the issue in

his petition for modification. In addition to titling it a petition to relocate,

Father specifically pled that he was seeking relocation of Child.

      The trial court discussed the relocation factors in detail in addition to

the section 5328 factors. While, pursuant to D.K., the trial court was not

required specifically to consider those relocation factors that were not

relevant to this case, we find no error in the trial court’s discussion of all of

the section 5337 custody factors in detail.     Father’s first claim of error is

without merit.

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      Father’s second through ninth issues challenge, in one way or another,

the trial court’s consideration or weighing of various factors.    Specifically,

Father takes issue with the court’s consideration of the factors at section

5337(h)(1), (2), (7), and (10), and section 5328(a)(1), (3), (4), (5), (6),

(9), (10), (11), (12), (13), (14), and (15). Father’s Brief at 36-60.

      First, Father believes the trial court was inconsistent in its discussion

of section 5337(h)(2) and section 5328(a)(10).       In considering relocation

factor two, a trial court must assess:

      (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.

23 Pa.C.S.A. § 5337(h)(2). In considering custody factor ten, a trial court

must assess:

      (10) Which party is more likely to attend to the daily physical,
      emotional, developmental, educational and special needs of the
      child.

23 Pa.C.S.A. § 5328(a)(10).

      According to Father, these two factors require “consideration of the

same identical issues. ‘Which party is more likely to attend to the daily

physical, emotional, developmental, educational and special needs of

the child’.” Father’s Brief at 37 (emphasis in original). While the provisions

are similar, section 5328(a)(10) focuses upon the Child while section

5337(h)(2) focuses upon the effect of relocation upon the Child.



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      Here, the trial court found that both parents are capable of meeting

Child’s needs under custody factor ten, but that relocation factor two favors

Mother because of the services Child receives from his current treatment

team in Wayne County and the possibility that he may need them in the

future.   The record supports these findings and we find no abuse of the

court’s discretion in assessing these factors.

      With regard to his other challenges to the factors, Father merely asks

us to review the evidence presented and weigh it differently than the trial

court. That we may not do. The trial court is the sole arbiter of the weight

assigned to evidence and the sole arbiter of the credibility of witnesses.

Ketterer, supra; S.M., supra (“The parties cannot dictate the amount of

weight the trial court places on evidence.”).         Although the trial court

considered other factors, the trial court primarily relied upon Mother’s role as

primary caretaker and the involvement of Wayne County services in treating

Child’s special needs. The record supports these findings. The court need

not discuss every fact that went into its decision to satisfy the statutory

requirements.   That the trial court did not mention all of the facts Father

finds important does not mean that the trial court did not consider those

facts. Ultimately, our task is to determine whether the record supports the

trial court’s decision. Here it does, and we find no abuse of discretion.

      In his tenth issue, Father asserts that the trial court erred in failing to

find that there had been a significant change in circumstances since the

entry of July 31, 2012 custody order. Father’s Brief at 60-61. While at one

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time our case law provided that a party must show a change in

circumstances before a court could modify custody, see Agati v. Agati, 492

A.2d 427, 432 (Pa. Super. 1985), our Supreme Court since has held

otherwise.   See Karis v. Karis, 544 A.2d 1328, 1332 (Pa. 1988) (“[W]e

hold that a petition for modification of a partial custody to shared custody

order requires the court to inquire into the best interest of the child

regardless of whether a ‘substantial’ change in circumstances has been

shown.”). Therefore, the trial court was not required to make a finding that

circumstances had changed in order to modify the custody order, if doing so

was in Child’s best interests. The trial court considered the appropriate best

interests factors and based its decision upon its review.    This issue lacks

merit.

      Father next contends that the trial court erred in failing to find that

Mother’s move from New Jersey to Pennsylvania was done in bad faith.

Father’s Brief at 62-63. Mother moved before she filed her original custody

complaint in August 2011. Since the move, the parties have had multiple

custody proceedings. Father provides no compelling reason that the move is

relevant to a custody determination in 2014. Therefore, we find no error in

the trial court’s failure to make this specific finding.

      Finally, Father asserts that the trial court erred because it did not

include a specific schedule for holidays in the custody order. Father’s Brief

at 64-65. We have held that “[t]he matter of scheduling . . . is best left to

the discretion of the trial court.”   Schwarcz v. Schwarcz, 548 A.2d 556,

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571 (Pa. Super. 1988). While a holiday schedule could have been included

in the order, the trial court’s task was to determine a schedule that reflects

Child’s best interests.   As stated above, the trial court considered the

required factors and the record supports its determination of Child’s best

interests. Because that schedule does not conform to Father’s preferences

or expectations does not mean that the trial court erred.

      Our review reveals that the record in this matter supports the trial

court’s findings and conclusions of law. Thus, the trial court did not abuse

its discretion. Accordingly, we affirm the February 18, 2014 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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