J. A04014/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

L.D.W.,                                 :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                          Appellant     :
                                        :
                     v.                 :        No. 1264 WDA 2015
                                        :
B.E.W.                                  :


                       Appeal from the Order, July 16, 2015,
              in the Court of Common Pleas of Westmoreland County
                        Civil Division at No. 1946 of 2013-D


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 17, 2016

      L.D.W. (“Mother”) appeals from the order entered July 16, 2015, in the

Westmoreland County Court of Common Pleas, which awarded the parties

shared legal custody, B.E.W. (“Father”) primary physical custody, and

Mother partial physical custody of H.B.W., born in December of 1997, and

A.R.W., born in August of 2006 (collectively, the “Children”).      The order

additionally awarded Father the ability to decide which school A.R.W. is to

attend. After review, we affirm.

      A portion of the pertinent factual and procedural history was

summarized by this court previously in memorandum dated March 16, 2015,

as follows:

                   A.R.W. was born during the marriage of Father
              and Mother. N.T., 7/29/14, at 6. Mother legally
              adopted Father’s son, H.B.W., born in December of
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          1997, who resides at the Milton Hershey School. Id.
          at 5-6.     In July of 2013, Father and Mother
          separated. Id. at 6. Mother resides in the marital
          home with A.R.W., and Father resides in the home of
          his paramour, K.M., and her daughter, S., who is one
          year older than A.R.W. Id. at 70, 73.

                 On September 18, 2013, Mother filed pro se a
          custody complaint and a separate petition for
          emergency relief, where she requested primary
          physical custody of A.R.W. and H.B.W., who were
          then ages seven and fifteen, respectively. The trial
          court denied Mother’s petition for emergency relief.
          The court entered a temporary custody order on
          November 4, 2013, which indicated it would become
          a final order unless one of the parties filed a praecipe
          for a pre-trial conference within 30 days. Father
          filed a praecipe on November 18, 2013.               On
          November 20, 2013, the trial court issued an order
          scheduling the pre-trial conference for February 11,
          2014. Thereafter, the court rescheduled the pre-trial
          conference for February 18, 2014, due to a conflict in
          the court’s schedule, and again for April 29, 2014,
          due to bad weather.

                Prior    to  the    pre-trial   conference,   on
          February 21, 2014,        Mother filed a notice of
          proposed relocation, and proposed relocating with
          A.R.W.    to    Cheswick,    in   Allegheny    County,
          Pennsylvania, which Mother alleged was less than
          20 miles from the marital residence where she was
          currently living. On March 3, 2014, Father filed a
          counter-affidavit objecting to the proposed relocation
          and to modification of the custody order.

                Following the pre-trial conference on April 29,
          2014, by order dated April 30, 2014, the court issued
          an interim custody order and scheduled the trial on
          custody and relocation for July 29, 2014.         The
          interim order granted Mother primary physical
          custody of A.R.W., and Father partial physical
          custody on alternating weekends, from Friday after
          school until Sunday at 5:00 p.m., and every Tuesday
          and Thursday after school until 7:30 p.m.,


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              inter alia. During the summer, the order granted
              Father partial custody on alternating weekends from
              Thursday at 5:00 p.m. until Sunday at 5:00 p.m.,
              and during the intervening week, from Wednesday at
              2:00 p.m. until Thursday at 9:00 a.m., inter alia.
              The interim order was silent with respect to the
              custody of H.B.W.

                     At the custody trial on July 29, 2014, the
              following witnesses testified: Mother; Father; K.M.,
              Father’s paramour; and A.R.W., in camera. By
              memorandum and order dated August 18, 2014, the
              trial court granted the parties shared legal custody of
              A.R.W., Mother primary physical custody of A.R.W.,
              and Father partial physical custody of A.R.W. on
              alternating weekends and every Tuesday and
              Thursday after school or at 4:00 p.m. if there is no
              school. The order also set forth a holiday schedule
              and granted the parties one week of vacation with
              A.R.W. during the summer. The order was silent
              with respect to the custody of H.B.W. Further, the
              order denied Mother’s request to relocate with
              A.R.W.     On September 18, 2014, Father filed a
              notice of appeal and a concise statement of errors
              complained of on appeal.

L.D.W.   v.    B.E.W.,    120   A.3d   1056   (Pa.Super.   2015)   (unpublished

memorandum at 1-4) (footnotes omitted).

      Pursuant to the memorandum dated March 16, 2015, this court

vacated the order of August 18, 2014 and remanded the matter to the trial

court to: consider all of the Section 5328(a) custody factors, with respect to

both A.R.W. and H.B.W., on the record or in a written opinion; set forth

findings of fact and determinations regarding credibility and weight of the

evidence; and enter a custody order that includes both A.R.W. and H.B.W.

By order dated April 1, 2015, the trial court scheduled a remand trial for



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April 21, 2015. At the time of the remand trial, the court conducted a trial

de novo “in order that all facts and circumstances, even those that had

arisen after remand, could be fairly and comprehensively considered.”

(Memorandum and order, 7/16/15 at 1.)1 The following witnesses testified:

Father; Mother; H.B.W.; T.W., Father’s oldest daughter, whom Mother did

not adopt; J.W., Mother’s boyfriend; and A.R.W., in camera. Of note, both

Mother and Father were represented by counsel.2

        Following the remand trial, on April 22, 2015, the trial court ordered

the parties to submit a proposed order within ten days.        Thereafter, on

July 16, 2015, by memorandum and order, the trial court granted the parties

shared legal custody of the Children, primary physical custody of H.B.W. to

Father, with partial physical custody to Mother as agreed to by H.B.W., and

primary physical custody of A.R.W. to Father, with partial physical custody to

Mother. Specifically, Mother was granted partial physical custody of A.R.W.

as follows:    during the school year, every other weekend from Friday at

5:30 p.m. until Sunday at 7:00 p.m., and every Wednesday at 5:00 p.m.

until 8:00 p.m.; and, during the summer vacation, every other week from

Friday at 5:00 p.m. until the following Friday at 5:00 p.m.       In addition,


1
  The trial court incorrectly indicates that the remand relates to its order
dated September 22, 2015, entered September 25, 2015. (Memorandum
and order, 7/21/15 at 1.)        However, as stated in this court’s prior
memorandum dated March 16, 2015, this order was a “nullity.” L.D.W. v.
B.E.W., 120 A.3d 1056 (Pa.Super. 2015) (unpublished memorandum at 10).
2
    Mother is represented by new counsel on this appeal.


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Father was further granted the ability to decide which school A.R.W. is to

attend, with Mother to have access to all of the school records and be

informed of all school activities by Father.     The trial court’s memorandum

analyzed each of the 16 custody factors pursuant to Section 5328(a) and

included findings of fact and determinations regarding credibility and weight

of the evidence. On August 14, 2015, Mother, through counsel, then filed a

notice of appeal and concise statement of errors complained of on appeal.

        On appeal, Mother raises the following issues for our review:3

              I.     Whether the trial court committed an error of
                     law by not considering Mother’s request for
                     relocation and by failing to consider the
                     relocation factors pursuant to 23 Pa. C.S.A.
                     § 5337(h)?[4]

              II.    Whether the trial court committed an abuse of
                     discretion and an error of law by conducting a
                     trial de novo as a result of which a custody
                     modification was effectuated when the case
                     was remanded from the Superior Court in
                     order to have the trial court delineate the
                     custody factors, along with the basis for the
                     court’s order of August 18, 2014, and when
                     the Plaintiff/Mother was deprived of due
                     process because she lacked adequate notice of
                     the trial court’s intent to modify the August 18,
                     2014 order?

              III.   Whether the trial court committed an abuse of
                     discretion and an error of law by violating

3
    We have re-ordered Mother’s issues for ease of disposition.
4
  While Mother does not raise this issue in the statement of questions
involved section of her brief, she includes this issue in the summary of
argument and argument sections of her brief.             For purposes of
thoroughness, we discuss this issue within.


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                  Pa.R.C.P. 1915.4(d), which required the trial
                  court to file its decision within fifteen days of
                  the conclusion of trial when the significant
                  delay resulted in prejudice to Plaintiff/Mother?

            IV.   Whether the trial court committed an abuse of
                  discretion and an error of law by misapplying
                  and/or failing to analyze the custody factors
                  set forth in 23 Pa. C.S.A. § 5328(a) and by
                  failing to render a custody decision that is in
                  the best interests of the minor children when it
                  awarded primary custody of the parties’ minor
                  children to Defendant/Father, as its decision
                  was against the weight of the evidence
                  presented at trial?

            V.    Whether the trial court committed an abuse of
                  discretion and an error of law by addressing
                  and assigning school choice, particularly in
                  light of the fact that the remand was limited to
                  the trial court delineating and supporting its
                  August 18, 2014 decision pursuant to the
                  custody factors, and whether the trial court
                  abused its discretion in making its own
                  determination as to which school is better
                  suited for the minor child?

Mother’s brief at 4, 15-16.

      As we stated in E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015),

with regard to our review of a custody order:

            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


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           test is whether the trial court’s conclusions are
           unreasonable as shown by the evidence of record.
           We may reject the conclusions of the trial court only
           if they involve an error of law, or are unreasonable in
           light of the sustainable findings of the trial court.
           V.B. v. J.E.B., 2012 PA Super 200, 55 A.3d 1193,
           1197 (Pa. Super. 2012) (citations omitted).

           “When a trial court orders a form of custody, the
           best interest of the child is paramount.” S.W.D. v.
           S.A.R., 2014 PA Super 146, 96 A.3d 396 (Pa. Super.
           2014) (citation omitted).        The factors to be
           considered by a court when awarding custody are set
           forth at 23 Pa.C.S. § 5328(a).

E.R., 129 A.3d at 527.

     23 Pa.C.S.A. § 5328(a) provides as follows:

           (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.

                 (3)     The parental duties performed by
                         each party on behalf of the child.




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               (4)   The    need     for  stability  and
                     continuity in the child’s education,
                     family life and community life.

               (5)   The availability of extended family.

               (6)   The child’s sibling relationships.

               (7)   The well-reasoned preference of
                     the child, based on the child’s
                     maturity and judgment.

               (8)   The attempts of a parent to turn
                     the child against the other parent,
                     except in cases of domestic
                     violence where reasonable safety
                     measures are necessary to protect
                     the child from harm.

               (9)   Which party is more likely to
                     maintain      a    loving,    stable,
                     consistent        and       nurturing
                     relationship with the child adequate
                     for the child’s emotional needs.

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

               (11) The proximity of the residences of
                    the parties.

               (12) Each party’s availability to care for
                    the child or ability to make
                    appropriate                child-care
                    arrangements.

               (13) The level of conflict between the
                    parties and the willingness and
                    ability of the parties to cooperate
                    with one another. A party’s effort
                    to protect a child from abuse by


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                         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).

      Turning to Mother’s first issue, Mother asserts that the trial court erred

by not considering her request for relocation and by failing to consider the

relocation factors pursuant to 23 Pa.C.S.A. § 5337(h).            Mother indicates

that, if the trial court was essentially revisiting or reconsidering all issues, it

should have addressed her request to relocate and the relocation factors set

forth by Section 5337(h).      (Mother’s brief at 15.)    Mother further argues

that, in determining that she did not establish a right to relocate in its order

of August 18, 2014, the trial court “failed to consider the factors,

weight [sic] the evidence or even consider the burdens of proof[,]” as well

as the best interests of the child. (Id. at 15-16.)

      Importantly, neither Mother nor Father raised the issue of relocation

on appeal after denial in August 2014. Further, Mother did not include this

issue in the statement of questions involved section of her brief in the

instant   appeal.       Therefore,    Mother    waived     this    issue.     See



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Pa.R.A.P. 1925(b)(4) (issues not raised in a concise statement of errors

complained of on appeal are waived); Krebs v. United Refining Company

of Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (finding waiver

where an issue is not included in both a concise statement of errors

complained of on appeal and statement of questions involved section of the

brief). Notwithstanding, Mother further failed to appropriately preserve this

issue as she disputes the trial court’s denial of her relocation in her concise

statement, whereas she raises the trial court’s failure to address her

relocation in her brief. Krebs, 893 A.2d at 797. In any event, by awarding

primary physical custody to Father, Mother’s relocation issue would appear

no longer relevant.

      In her second issue, Mother challenges the trial court conducting a trial

de novo after remand. Mother argues that, as the trial court conducted a

trial de novo upon remand, rather than issuing an order upon the existing

record, she received inadequate notice that all prior claims would be

considered and inadequate time to prepare. As a result, Mother avers that

she was deprived of due process. (Mother’s brief at 10-11.)

      We disagree with Mother.     Initially, we observe that, by order dated

April 1, 2015, the trial court gave notice of the remand trial scheduled for

April 21, 2015.    Mother failed to file any motion and made no inquiry,

request, or written objection upon receipt of the notice scheduling the

remand   trial.    Moreover,   Mother   voiced   no   objection,   request   for



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continuance, request to present additional testimony and/or evidence, or

request for any other relief on the record at the remand trial.        Mother

therefore waived any issue related to the trial de novo as she failed to first

raise it with the trial court. See Pa.R.A.P. 302(a) (providing for waiver of

issues not first raised in lower court); Fillmore v. Hill, 665 A.2d 514, 515-

516 (Pa.Super. 1995) (stating, “[I]n order to preserve an issue for appellate

review, a party must make a timely and specific objection at the appropriate

stage of the proceedings before the trial court. Failure to timely object to a

basic and fundamental error, such as an erroneous jury instruction, will

result in waiver of that issue.      On appeal, the Superior Court will not

consider a claim which was not called to the trial court’s attention at a time

when any error committed could have been corrected.” (citations omitted)).

      Nonetheless, as indicated previously, the trial court conducted a trial

de novo “in order that all facts and circumstances, even those that had

arisen after remand, could be fairly and comprehensively considered.”

(Memorandum and order, 7/16/15 at 1.) Given the lapse of time between

its decision and this court’s remand, the trial court found it beneficial and

wise to take additional testimony.

            THE COURT: Well, we met briefly in chambers with
            counsel, and I think the best approach this morning
            would be for Mr. [W.] to proceed first on the
            remand, rather than just, you know, reissue an
            opinion discussing, you know, the elements in a
            statute.




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                   It appears to be best to get an update from
             everybody, see where, you know, what, if anything,
             has happened in life since we were last in court. I’ll
             try to do a holistic view of the entire case here and
             discuss the elements in the statute and renewed
             matter that is, you know, relevant.

Notes of testimony, 4/21/15 at 4 lines 2-16.          Both parties, who were

represented by counsel, were given 20 days’ notice and the opportunity to

fully participate and question witnesses and present evidence, which they

did.   As such, Mother was not deprived of due process.        See Everett v.

Parker, 889 A.2d 578, 580 (Pa.Super. 2005).

       With her third issue, Mother next raises trial court error for failure to

comply with Pennsylvania Rule of Civil Procedure 1915.4(d). As this issue

involves a pure question of law, our standard of review is de novo, and our

scope of review is plenary.      Harrell v. Pecynski, 11 A.3d 1000, 1003

(Pa.Super. 2011) (citations omitted).

       Rule 1915.4(d) provides, in part, with regard to disposition of custody

cases:

             (d)   Prompt Decisions. The judge’s decision shall
                   be entered and filed within 15 days of the date
                   upon which the trial is concluded unless, within
                   that time, the court extends the date for such
                   decision by order entered of record showing
                   good cause for the extension. In no event
                   shall an extension delay the entry of the
                   court’s decision more than 45 days after the
                   conclusion of trial.

Pa.R.C.P. 1915.4(d).     Here, the trial court conducted a remand trial on

April 21, 2015, and did not issue a decision until July 16, 2015.       Mother


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posits that this delay of 86 days, in violation of Rule 1915.4(d), resulted in

prejudice to herself and A.R.W., as it necessitated that A.R.W. change

schools prior to allowing for consideration of the issues on appeal. (Mother’s

brief at 12-14.)    Mother further argues that the mandatory nature of

Rule 1915.4(d), coupled with the prejudice resulting from the delay,

warrants dismissal of the trial court order. (Id. at 14-15.) In so arguing,

Mother largely contests the trial court’s decision with regard to school

choice. (Id. at 12-14.)

      We again disagree with Mother. On April 22, 2015, the day after the

remand trial, the trial court entered an order requesting the parties submit

proposed orders within ten days. It is unclear from the certified record if the

parties complied.   Regardless, and despite a previous delay in issuing the

August 2014 order, Mother made no request for a more timely decision nor

took any affirmative action with either the trial court or this court. What is

more, Mother appears to be confusing her disagreement, in particular as it

relates to school choice, with prejudice. Although A.R.W. changed schools,

this is a function of the trial court’s decision, not delay.     In addition, in

contravention to Mother’s request for dismissal, we note that, while

Subsection (b) of Rule 1915.4 provides for dismissal, either sua sponte with

notice or upon motion, Subsection (d) remains silent in this regard.

Dismissal of the trial court’s order is therefore not appropriate.




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      In her fourth issue, Mother asserts that the trial court committed an

abuse of discretion and an error of law by misapplying and/or failing to

analyze the custody factors set forth in 23 Pa.C.S.A. § 5328(a) and by failing

to render a custody decision that is in the best interests of the Children

when it awarded primary custody to Father, as its decision was against the

weight of the evidence presented at trial.      Mother argues that the trial

court’s failure to appropriately analyze the custody factors and interpret and

weigh the evidence resulted in a decision, as it relates to A.R.W., which

placed A.R.W. in the “primary custody of a parent who was not as involved

or emotionally supportive.”   (Mother’s brief at 16.)   Mother contends that

“[b]y relying on faulty or misinterpreted evidence, overlooking other

evidence favorable to Mother or negative for father, and ignoring the weight

of the evidence supporting Mother as primary custodian, the Trial Court has

failed to craft a custody schedule that is in the best interests of the Minor

Child[.]” (Id. at 17). Specifically, Mother takes issue with the trial court’s

interpretation of evidence regarding school, daycare, the condition of the

marital residence, and abuse. (Id. at 17-23.) Mother further avers that the

trial court’s decision not only neglects her role as primary caregiver, but

does not consider the impact on A.R.W.’s stability. (Id. at 23-24.)

      As we construe this issue, Mother questions the trial court’s findings of

fact and determinations regarding credibility and weight of the evidence.

Under the aforementioned standard of review applicable in custody matters,



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these are not disturbed absent an abuse of discretion. See E.R., 129 A.3d

at 527. Upon review, we find no error of law or abuse of discretion.

        In the case at bar, as directed by this court on remand, and as

required by law, the trial court carefully analyzed and addressed each factor

under    Section   5328(a)   in   considering    the   Children’s   best   interests.

(Memorandum and order, 7/16/15 at 4-11.) In concluding and summarizing

its analysis, the trial court stated:

             As stated above, based on [H.B.W.]’s age and his
             reasoning, his preference will be given significant
             weight, and will be the determining factor in his
             custody schedule.      An order granting the Father
             primary physical custody of [H.B.W.] and leaving the
             Mother’s partial physical custody up to [H.B.W.]’s
             discretion will be entered.

             Although it appears that [A.R.W.] is extremely
             bonded to the Mother, there is a strong bond
             between her and the Father. In considering the
             factors, specifically with the testimony that was
             offered at the April 2015 trial, it appears to be in the
             best interest of [A.R.W.] to grant the Father primary
             physical custody, with the Mother receiving
             substantial partial custody. The evidence presented
             indicates that the Father is more able to promote
             relationships between [A.R.W.] and her siblings, as
             well as extended family, which the Mother does not
             appear to be able to do.

             Furthermore, the testimony regarding the Mother’s
             residence, and photos offered in support, indicate an
             unstable and unsuitable environment for [A.R.W.] to
             live in primarily. Additionally, the Mother failed to
             offer sufficient evidence to lead the Court to believe
             that remaining in Harvest Baptist Academy is in
             [A.R.W.’s] best interest. The Father, on the other
             hand, provided information to the Court regarding



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             the Kiski School District regarding academic standing
             and score rating.

             For these reasons, an order granting the Father
             primary physical custody of [A.R.W.], with the
             Mother having substantial partial custody will be
             entered.

Id. at 11-12. Thus, after review of the record, we determine that the trial

court’s findings regarding the custody factors set forth in Section 5328(a)

and determinations regarding best interests are supported by competent

evidence in the record, and we will not disturb them. See E.R., 129 A.3d at

527.

       Lastly, we consider Mother’s allegation of error and abuse of discretion

as a result of the trial court addressing and assigning school choice and

making its own determination as to which school was better suited for

A.R.W. Mother argues that, not only was it improper for the trial court to

consider school choice on remand, but that the trial court should have

considered the factors pursuant to Section 5328(a) in rendering its decision.

(Mother’s brief at 11-12.)      Mother contends that “moving the child from a

school she has attended for two years, and for which there is no significant

evidence of problems or deficiencies, is not in the best interests of the

child[. . . .]” (Id. at 12.)

       We   first    observe   that   Mother     made   no   objection,   other   than

evidentiary, to the testimony and evidence regarding school choice at the

remand trial.       Mother therefore waived any issue related to the trial court



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addressing this issue for failure to raise it below.   See Pa.R.A.P. 302(a);

Fillmore v. Hill, 665 A.2d at 515-516.

      Further, looking to Mother’s allegation with regard to consideration of

the Section 5328(a) factors, we have clarified that the factors under

Section 5328(a) are required to be addressed where an order impacts an

award of custody and does not merely deal with a discrete and distinct issue.

S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014).

            It is also true that resolution of an otherwise
            ancillary matter may affect a form of custody and
            require consideration of the § 5328(a) factors. For
            instance, the choice of a child’s school may factor
            into a trial court’s decision to award a form of
            custody when the trial court is addressing a request
            to establish or change legal or physical custody in
            connection with the choice of school. One parent in
            a custody dispute may argue that he or she is
            entitled to primary physical custody because his or
            her residence has much better schools. On the other
            hand, many times--like here--these items may
            appear as independent, discrete issues advanced by
            motion or petition that does not require a change in
            the form of custody. Although any decision requires
            consideration of the child’s best interest, only the
            former     situation   requires   consideration  and
            application of the § 5328(a) factors.

Id. at 403. In the instant matter, the trial court clearly considered school

choice in the context of its determination of best interests and examination

of the Section 5328(a) factors.     In fact, the court expressed, “On the

surface, the resolution of the question of school choice would appear as a

singular, discrete matter, but in the case herein, the choice of school weighs

heavily on the custody arrangement that will best serve [A.R.W.]”


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(Memorandum and order, 7/16/15 at 1 (footnote omitted).) It follows that

the trial court discussed school choice throughout its analysis, in particular

as it relates to A.R.W., with regard to Factor 1, which party is more likely to

encourage and permit frequent and continuing contact between the child and

another party, Factor 4, the need for stability and continuity in the child’s

education, family life and community life, Factor 7, the well-reasoned

preference of the child, based on the child’s maturity and judgment, and

Factor 13, the level of conflict between the parties and the willingness and

ability of the parties to cooperate with one another.           (Id. at 6-10.)

Specifically, with regard to Factor 4, in finding that the factor favors Father,

the trial court stated, in part:

                  The testimony offered by the Father at the
            April 2015 trial is that [A.R.W.]’s grades have been
            declining at the Harvest Baptist Academy. . . . The
            Father testifies that he does not believe that
            [A.R.W.] is getting a quality education or advancing
            her social skills at the Harvest Baptist Academy. He
            states that the school has no rating and that it is not
            a licensed school. He believes that only having
            8-12 children in a class does not allow [A.R.W.] to
            improve her social skills the way a child her age
            needs. The Mother also testifies that [A.R.W.] is not
            currently in any activities.

Id. at 6-7. Likewise, as to Factor 13, the trial court indicated:

                  There is high conflict between the parties in
            this case. Although it does appear that the Mother,
            although possibly not intentionally, through her
            enrollment of [A.R.W.] in Harvest Baptist Academy
            and the use of multiple daycare agencies, interferes
            with the relationship between the Father and
            [A.R.W.] The conflict and animosity between the


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             parties is from both sides, though the Mother seems
             more purposeful.

Id. at 10.    Moreover, as referenced above, in concluding, the trial court

noted Mother’s lack of evidence regarding Harvest Baptist Academy as

compared to Father’s evidence in support of Kiski Area School District.

Again, the trial court stated, “Additionally, the Mother failed to offer

sufficient evidence to lead the Court to believe that remaining in Harvest

Baptist Academy is in [A.R.W.’s] best interest.       The Father, on the other

hand, provided information to the Court regarding the Kiski School District

regarding academic standing and score rating.”        (Id. at 11-12.)   As such,

after review, we discern no error of law or abuse of discretion.

      Accordingly, for the foregoing reasons, we affirm the order of the trial

court awarding the parties shared legal custody, Father primary physical

custody and Mother partial physical custody of the Children, and Father the

ability to decide which school A.R.W. is to attend.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/17/2016




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