J-A13040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.S                                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

K.L.S.

                            Appellant               No. 1666 WDA 2014


                     Appeal from the Order October 2, 2014
                 In the Court of Common Pleas of Butler County
                   Civil Division at No(s): F.C.No. 09-90223-C


BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                             FILED AUGUST 19, 2015

       K.L.S. (“Mother”) appeals from the order entered on October 2, 2014,

in the Court of Common Pleas of Butler County, that denied her petition to

modify the existing custody order and set forth a new custody schedule with

respect to the parties’ son, I.M.S., born in September of 2008. Upon careful

review, we affirm.

       The record reveals the following factual and procedural history. I.M.S.

was born during the marriage of Father and Mother. The parties separated

in March of 2009, when I.M.S. was six months old.        Trial Court Opinion,

10/2/14, at 1.1 Upon separation, Mother and I.M.S. moved to the home of

____________________________________________


1
 The trial court opinion accompanying the subject order and the trial court
opinion pursuant to Pa.R.A.P. 1925(a) do not contain pagination. For ease
(Footnote Continued Next Page)
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her parents in McDonald, in Washington County,2 a driving distance of

approximately 45 minutes from the marital home in Butler, in Butler County,

where Father continued to reside throughout the underlying proceedings.

N.T., 8/11/14, at 17, 30.

      On April 1, 2009, Father initiated the custody action by filing a

complaint for shared physical and legal custody.                Trial Court Opinion,

10/2/14, at 1.         The court directed the parties to undergo a custody

evaluation with Martin B. Meyer, Ph.D.            Id.   Following a trial, on June 7,

2010, the court granted Father and Mother shared legal and physical

custody with Father having custody every Sunday through Wednesday, and

Mother every Wednesday through Saturday. Id. at 2. The order directed

that the parties alternate the Saturday evening to Sunday evening custodial

period. Id. The trial court “noted that the custody arrangement would only

be applicable until the child began school full time due to the distance

between the parties’ residences. The [c]ourt also encouraged the parties to

reduce the distance between their residences to resolve this issue.” Id.

      In March of 2012, Mother and I.M.S. moved to the home of D.D.

(“Stepfather”), her then paramour, in Plum, in Allegheny County.                N.T.,

8/11/14, at 30, 197. In November of 2012, Mother and Stepfather married.
                       _______________________
(Footnote Continued)

of review, in both trial court opinions, we have assigned each page a
sequential page number.
2
  Father states in his appellee brief that the home of Mother’s parents was
located in Washington County. Father’s brief at 4.



                                            -2-
J-A13040-15


Id. at 197. They are the parents of C.D., a male child born in February of

2014. Id. at 6. In March of 2014, Mother and Stepfather moved to a single

family home in Irwin, in Westmoreland County, a driving distance of 50 to

55 minutes from Father’s home. Id. at 17, 197.

      On     February   24,   2014,   in   anticipation   of   I.M.S.   commencing

kindergarten in the fall of 2014, Mother filed a petition for modification of the

existing custody order, wherein she requested primary physical custody.

Trial Court Opinion, 10/2/14, at 2.          Father filed a counter-petition for

modification of the existing custody order, wherein he requested primary

physical custody.   Id. at 2.    The trial court stated that the parties “were

directed to undergo updated custody evaluations with Dr. Martin Meyer.

Upon completion of the updated evaluations, a custody trial was held on

August 11th and 18th, 2014.”     Id. Mother testified on her own behalf and

presented the testimony of Stepfather.        Father testified on his own behalf

and presented the testimony of his friend, C.C.D., and Dr. Meyer, via

telephone.

      Notably,    Dr.   Meyer    testified    with   respect     to     his   custody

recommendation, as follows:

      [M]y mantra in this case is that all things being equal, and all
      things are equal, the only difference is that mom chose to
      relocate. Otherwise, I would have recommended a 50/50, but a
      decision needs to be made, so the decision was that mom chose
      to move out of the area. So the recommendation was for father
      to be primary during the school year.

N.T., 8/18/14, at 34. Dr. Meyer continued on direct examination,

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        Q. Why do you believe that it’s in [I.M.S.]’s best interests [for
        Father to have primary physical custody]?

        A. Well, again, there is . . . nothing ruling out either litigant in
        terms of parenting.      So the only deciding factor was the
        geographical move. So he would do well with either parent, and
        ideally the thing would be to have – continue the 50/50, but
        that’s not practical.

Id. at 35.

        At the conclusion of the hearing, the trial court

        was informed that a prompt decision on the choice of school
        district for the child was necessary due to the time constraints
        involved. Having insufficient time to issue a comprehensive
        opinion before the child was to begin school, the Court issued an
        Interim Custody Order granting the parties shared legal custody
        and physical custody of the child, and directing that the child
        attend school in the area of Father’s residence. The Court took
        the ultimate custody decision under advisement pending a final
        Order.

Trial Court Opinion, 10/2/14, at 3.

        By order dated and entered on October 2, 2014, the trial court granted

shared legal and physical custody to Mother and Father.3 The court granted
____________________________________________


3
    The Act includes the following relevant definitions:

        “Partial physical custody.”. --The right to assume physical
        custody of the child for less than a majority of the time.



                                           ...



         “Primary physical custody.”. --The right to assume physical
        custody of the child for the majority of time.
(Footnote Continued Next Page)


                                           -4-
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physical custody to Mother during the school year on alternating weekends

from Thursday after school until Monday morning before school. During the

weeks that follow Mother’s custodial weekend, the court granted Mother

physical custody from Thursday after school until Friday before school.

During the weeks that follow Father’s custodial weekend, the court granted

Mother physical custody from Monday after school until Tuesday before

school. The court granted Father physical custody at all other times during

the school year “notwithstanding the provisions addressing holidays,

exclusive vacation time, the child’s birthday and summer break as provided

herein.” Order, 10/2/14, at ¶ 3(D). During I.M.S.’s summer vacation, the

                       _______________________
(Footnote Continued)



                                            ...



       “Shared physical custody.”. --The right of more than one
      individual to assume physical custody of the child, each having
      significant periods of physical custodial time with the child.



                                            ...



      “Shared legal custody.”. --The right of more than one
      individual to legal custody of the child.



23 Pa.C.S.A. § 5322.




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court granted the parties equally shared physical custody on an alternating

weekly basis.

      On October 14, 2014, Mother filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On December 17, 2014, the trial court issued a Rule

1925(a) opinion.

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

      I. Whether the trial court erred in failing to grant Mother primary
      physical custody of [I.M.S.][?]

      II. Whether the trial court erred in improperly relying on the
      report and testimony of the appointed evaluator who failed to
      follow mandatory guidelines in completing his evaluation and
      failed to give his recommendation with[in] a reasonable degree
      of professional certainty[?]

Mother’s brief at 8.

      The scope and standard of review in custody matters is as follows.

            [T]he appellate court is not bound by the deductions or
         inferences made by the trial court from its findings of
         fact, nor must the reviewing court accept a finding that
         has no competent evidence to support it. . . . However,
         this broad scope of review does not vest in the reviewing
         court the duty or the privilege of making its own
         independent determination. . . . Thus, an appellate court
         is empowered to determine whether the trial court’s
         incontrovertible factual findings support its factual
         conclusions, but it may not interfere with those
         conclusions unless they are unreasonable in view of the
         trial court’s factual findings; and thus, represent a gross
         abuse of discretion.

      R.M.G., Jr. v. F.M.G., 2009 PA Super 244, 986 A.2d 1234, 1237
      (Pa. Super. 2009) (quoting Bovard v. Baker, 2001 PA Super
      126, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,

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J-A13040-15



              [O]n issues of credibility and weight of the evidence,
            we defer to the findings of the trial [court] who has had
            the opportunity to observe the proceedings and
            demeanor of the witnesses.

               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).

         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, 902 A.2d at 540 (quoting Jackson v. Beck, 858 A.2d 1250, 1254

(Pa. Super. 2004)).

         The primary concern in any custody case is the best interests of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902




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A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004).

     Relevant to this custody case are the factors set forth in Section

5328(a) of the Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321-5340,

which provides as follows.

     § 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.

            (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.


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            (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.A. § 5328(a).

     This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

custody order.”   J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original). Further,

     Section 5323(d) provides that a trial court “shall delineate the
     reasons for its decision on the record in open court or in a

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       written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
       “section 5323(d) requires the trial court to set forth its
       mandatory assessment of the sixteen [Section 5328 custody]
       factors prior to the deadline by which a litigant must file a notice
       of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
       appeal denied, 70 A.3d 808 (Pa. 2013). . . .

       In expressing the reasons for its decision, “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.” M.J.M.
       v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
       [620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of
       reasons for its decision, which adequately addresses the relevant
       factors, complies with Section 5323(d). Id.

A.V., 87 A.3d at 822-823.          With these standards in mind, we turn to the

merits of this appeal.4

       Mother’s issues on appeal are inter-related, and so we review them

together. She argues that the trial court committed an error of law in failing

to weigh the Section 5328(a) custody factors in her favor. Mother addresses

each factor listed in Section 5328(a). The crux of her argument is that, in

failing to grant her primary physical custody during the school year, the trial

court improperly focused on her move to Irwin, in Westmoreland County,

and punished her for not residing in Butler County. Further, Mother argues



____________________________________________


4
  The Act was amended, effective January 1, 2014, to include the additional
factor at 23 Pa.C.S.A § 5328(a)(2.1). In this case, the court considered all
of the custody factors except § 5328(a)(2.1) in its opinion accompanying the
subject order. See Trial Court Opinion, 10/2/14, at 6-12. Based on the
record evidence, we conclude that the court’s omission is harmless.



                                          - 10 -
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that the trial court erred in relying on the report and testimony of Dr. Meyer,

the court-appointed custody evaluator.

      We begin with the trial court’s findings regarding Dr. Meyer’s custody

evaluation report and testimony. This Court has stated:

      [W]hen expert evaluation is uncontradicted or unqualified, a
      child custody court abuses its fact[-]finding discretion if it totally
      discounts expert evaluation. To say that a court cannot discount
      uncontradicted evidence, however, is merely to rephrase the
      requirement that a child custody court’s conclusion have
      competent evidence to support it. So long as the trial court’s
      conclusions are founded in the record, the lower court [is] not
      obligated to accept the conclusions of the experts.

King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citations omitted).

      In its opinion accompanying the subject order, the trial court stated

that Dr. Meyer’s “analysis of the case . . . was similar to the [c]ourt’s own

analysis.” Trial Court’s Opinion, 10/2/14, at 6. The court found credible the

testimony and recommendation of Dr. Meyer as follows.

      Dr. Meyer’s recommendation is that Father should have primary
      custody of the child during the school year, with the parties
      equally sharing custody during the summer. Dr. Meyer believes
      the ideal situation would be equally shared custody during the
      school year, but the distance between the parties’ residences is a
      problem. Dr. Meyer’s recommendation is based upon Mother’s
      decision to relocate and the geography involved, as opposed to
      the parties’ respective environments.       Dr. Meyer found the
      parties’ environments to be equally stable.

      Dr. Meyer found no psychological issues with either party. . . .

Id. at 7.

      To the extent Mother contends that the trial court accepted the

recommendation of Dr. Meyer by granting Father primary physical custody

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J-A13040-15


during the school year, we disagree. A review of the custody order reveals

that, during the weeks that Mother exercises weekend custody, she has four

overnights with I.M.S., and Father has three overnights. In the alternating

weeks, Mother has two overnights with I.M.S., and Father has five

overnights. Thus, in a two-week custodial period, Mother has six overnights

with I.M.S., and Father has eight overnights.    We conclude that the court

fashioned a shared custody arrangement during the school year because

both parties have “significant periods of physical custodial time” with I.M.S.

23 Pa.C.S.A. § 5322.

      Indeed, in its Rule 1925(a) opinion, the trial court explained as

follows.

      The [c]ourt found the testimony and recommendation of the
      court-appointed custody evaluator, Dr. Martin Meyer, to be
      credible.  Accordingly, the [c]ourt considered Dr. [Meyer’s]
      recommendation in determining the custody outcome.
      However, the [c]ourt made an independent judgment, as
      the [c]ourt is not bound by the expert’s recommendation.
      Furthermore, the [c]ourt specifically addressed the issue of the
      statutory custody factors as they relate to custody evaluations
      on the record during trial.

Trial Court Opinion, 12/17/14, at 4 (emphasis added).      Because the court

awarded the parties shared physical custody during the school year and did

not make an award of primary physical custody as recommended by Dr.

Meyer, we need not review Mother’s arguments regarding whether Dr. Meyer

“follow[ed] mandatory guidelines in completing his evaluation, and failed to




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give his recommendation with[in] a reasonable degree of professional

certainty.” Mother’s brief at 45.

       For the same reason, we reject Mother’s argument that, in failing to

grant her primary physical custody during the school year, the trial court

improperly focused on her move to Irwin, in Westmoreland County, and

punished her for not residing in Butler County.             Although Dr. Meyer’s

explanation, stated infra, for his physical custody recommendation may

arguably indicate punishing Mother for moving outside of Butler County, the

trial court did not follow his recommendation. Rather, the court awarded the

parties shared physical custody during the school year based on its

application of the Section 5328(a) custody factors.

       A review of the trial court opinion accompanying the subject order

reveals that the court found a majority of the Section 5328(a) custody

factors did not weigh in favor of either Mother or Father.5 See Trial Court

Opinion, 10/2/14, at 6-12.           Specifically, under Section 5328(a)(3), the

parental duties performed by each party on behalf of the child, the trial court

found, in relevant part, that “[s]ince separation, the parties have generally

maintained     an    equally    shared    custody   schedule,   with   both   parties

appropriately performing the regular caregiving duties.”           Id. at 8.     The

testimonial evidence supports the trial court’s findings.          Accordingly, we
____________________________________________


5
  The trial court found that Section 5328(a)(2), (7), (14), and (15) are not
relevant in this case.



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discern no abuse of discretion by the court in its factual findings with respect

to Section 5328(a)(3), and the weight the court placed on this factor.

      In regards to Section 5328(a)(5), the availability of extended family,

the trial court found that “[a]s the child spends significant time with both

parents, the child will continue to have frequent contact with extended

family regardless of which school district the child attends.”        Id. at 9.

Mother argues that this factor favors her because she “has a large extended

family that resides near her, all of whom have a relationship with [I.M.S.],

spend time with [I.M.S.], and are able to assist with [I.M.S.]’s care if

necessary, including Mother’s parents, siblings, and          other   relatives.”

Mother’s brief at 30.      Further, she asserts that Father’s parents are

deceased, and that he “does not have significant family that have been

involved with [I.M.S.] or can assist Father with [I.M.S.] in the future.” Id.

While the testimonial evidence supports Mother’s assertion that she has a

significant extended family who are available to assist with child care, and

Father does not, we discern no abuse of discretion by the court in finding

that I.M.S. “will continue to have frequent contact with extended family”

based on the custody schedule.       Trial Court Opinion, 10/2/14, at 9.      In

addition, we discern no abuse of discretion with respect to the weight the

court placed on Section 5328(a)(5).

      Similarly, in regards to Section 5328(a)(6), the child’s sibling

relationships, the trial court found that “as [I.M.S.] spends significant time


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with both parents, he will be able to continue his strong relationship with

[C.D.].” Id. at 9. Based on the custody schedule, we discern no abuse of

discretion by the court in its factual findings with respect to Section

5328(a)(6), and the weight the court placed on this factor.

     Under Section 5328(a)(8), the attempts of a parent to turn the child

against the other parent, the trial court found, in part, that “[w]hile the

parties have an adversarial relationship with each other, sufficient evidence

has not been presented that would demonstrate that the child has been

influenced by either parent against the other.” Id. The testimonial evidence

supports the trial court’s findings.   Accordingly, we discern no abuse of

discretion by the court in its factual findings with respect to Section

5328(a)(8), and the weight the court placed on this factor.

     Further, the trial court did not find significant the factors listed in

Section 5328(a)(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, and Section 5328(a)(10), which party is more likely to

attend to the daily physical, emotional, developmental, educational and

special needs of the child. The court found, in effect, that these factors are

equal between the parties.    Id. at 10.     Because the testimonial evidence

supports this finding, we discern no abuse of discretion in the weight the

court placed on Section 5328(a)(9) and (10).




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      Finally, the trial court found Section 5328(a)(12), the availability to

care for the child or make appropriate child-care arrangements, neutral

between the parties, as follows:

      Mother works full time and her schedule is flexible. She works
      three days from home and two days from the office which is
      twenty minutes away. Maternal Grandparents are available to
      provide child-care.    [Stepfather] works from home and is
      available to assist with child-care as well.        Father’s work
      schedule is flexible and he typically works thirty hours from the
      office and ten hours from home. He has utilized day care when
      he is at work.

Id. at 11.       The testimonial evidence supports the trial court’s findings.

Accordingly, we discern no abuse of discretion by the court in its factual

findings with respect to Section 5328(a)(12), and the weight the court

placed on this factor.

       Next, we review the Section 5328(a) custody factors that the trial

court weighed in favor of Father. Under Section 5328(a)(1), which party is

more likely to encourage and permit frequent and continuing contact

between the child and another party, the court found, in part, that Mother

has   had    “secretive   behavior   toward    Father   regarding   legal   custody

issues. . . .”   Trial Court Opinion, 10/2/14, at 7. As such, the court found

“that Father is more likely to encourage and permit frequent and continuing

contact between the child and the other party.” Id.

      The trial court’s analysis under Section 5328(a)(1) is related to its

analysis under Section 5328(a)(13), the level of conflict between the parties

and the willingness and ability of the parties to cooperate with one another.

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Although not specified, the court’s analysis of Section 5328(a)(13) indicates

that it weighed this factor in favor of Father.

        The trial court explained, in part:

        Mother does not like the hostile tone that Father uses towards
        her and believes his questioning is invasive. Father lacks trust in
        Mother because she has been secretive with him regarding
        decisions involving the child.

                                        ...

        Mother is guarded because she believes Father will use the
        information she gives him against her. Testimony was presented
        regarding an incident where the child was bitten by a dog.
        Mother initially told Father that it had been her brother’s dog,
        when in fact it was her brother-in-law’s dog. Father asked for
        the dog’s medical records and received only the vaccination
        records. Father eventually discovered the identity of the dog,
        but only learned the identity of the dog’s owner at trial. This is
        an example of a legal custody issue in which it was highly
        inappropriate for Mother to withhold information from Father.

        Father was not provided sufficient notice by Mother of the move
        to her new residence [in Irwin, in Westmoreland County]. The
        house had been under construction for months without
        mentioning this to Father. Father was also not provided with
        sufficient information about [Stepfather], considering that
        Mother had prior knowledge that they would be moving in
        together.

        Generally, when Father asked for information Mother ignores his
        request or replies at the last minute with incomplete information.
        When Mother has taken out of state trips with the child she has
        generally provided Father with an address but not specific
        details.

Trial Court Opinion, 10/2/14, at 6, 11-12.6
____________________________________________


6
    The trial court instructed the parties as follows.

(Footnote Continued Next Page)


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      The testimony of Mother and Father supports the trial court’s findings

regarding Mother’s omission, hesitancy, and/or delay in providing Father

with the information detailed above.             Therefore, we discern no abuse of

discretion with respect to the court’s findings under Section 5328(a)(13).

Notably, the court did not find this factor determinative in making its

physical custody award.

      However, the same findings by the trial court do not support weighing

Section 5328(a)(1) in favor of Father. The foregoing “secretive” behavior by

Mother does not demonstrate her unwillingness to encourage and permit

                       _______________________
(Footnote Continued)

      The parties need to use common sense in their communications
      and eliminate the hostility and mistrust. Father must be made
      aware of the important people in the child’s life. This is not to
      say that Mother must make a list of everyone that the child
      briefly encountered while in Mother’s custody. Father needs to
      trust that Mother is a good parent and will make the right
      decisions for the child.

      Father must not instigate Mother with his questioning and
      Mother must not fear Father’s response to her answers. Mother
      must be honest from the beginning with Father and inform him
      as soon as she becomes aware of a legal custody issue that
      should be discussed. When Mother is secretive and vague, she
      encourages Father’s overly intrusive nature and risks
      miscommunication on important issues regarding the child. It is
      not up to Mother to decide which legal custody issues Father
      should be consulted on. He is entitled to be consulted on all
      legal custody issues.

Trial Court Opinion, 10/2/14, at 13.




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frequent and continuing contact between I.M.S. and Father. Indeed, there is

no testimonial evidence that Mother has ever impeded I.M.S.’s contact with

Father.    Therefore, we conclude the court’s findings under Section

5328(a)(1) are not supported by the record.       Nevertheless, because this

factor was not determinative in the trial court’s custody award, we do not

disturb the subject order on this basis.

      With respect to Section 5328(a)(4), the need for stability and

continuity in the child’s education, family life and community life, the trial

court found that,

      Mother proposes that the child attend morning kindergarten at
      the Penn Trafford school district where she resides. Father
      proposes that the child attend kindergarten at the Goddard
      School where he has attended daycare.              Both parties
      represented that their respective school districts and
      neighborhoods are more suitable for the child. Based upon the
      evidence presented, and upon the [c]ourt’s knowledge of the
      school districts, the [c]ourt finds that the school districts are
      equal and not a determinative factor. The [c]ourt finds that the
      neighborhoods and residences are relatively equal, but the child
      has more roots in Butler as Father continues to reside in the
      marital residence. The child has friends from the Goddard
      School who will be attending the Mars School District, where the
      child would attend at Father’s residence.

Trial Court Opinion, 10/2/14, at 8-9. Further, in its Rule 1925(a) opinion,

the trial court reasoned that, “The child has attended the Goddard School

near Father’s residence, which is a Preschool and Kindergarten.     The child

and his friends from the Goddard School will go on to attend elementary

school at Mars School District, where Father resides.” Trial Court Opinion,

12/17/14, at 5.

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      We discern no abuse of discretion by the court under Section

5328(a)(4). The testimonial evidence revealed that Mother and Stepfather

had been living in the Penn Trafford School District for only five months at

the time of the subject proceedings. In contrast, I.M.S. had been attending

the Goddard School near Father’s residence for preschool.             As such,

attending the Goddard School for kindergarten would lend stability and

continuity in the child’s educational life. Likewise, attending the Mars School

District for elementary school would lend stability and continuity in I.M.S.’s

educational life because children from the Goddard School would attend the

same school district.   Indeed, in this case, we conclude that an important

consideration under Section 5328(a)(4) is that I.M.S. would begin first grade

in the 2015/2016 school year, and that children from the Goddard School

would attend the Mars School District.        Therefore, we discern no abuse of

discretion by the court in the weight it placed on this factor.

      Finally, with respect to Section 5328(a)(11), the proximity of the

residences of the parties, the trial court found that,

      The parties were advised in the [c]ourt’s previous opinion that a
      change in the custody schedule would be necessary, and the
      [c]ourt encouraged the parties to reduce the distance [of their
      residences]. Despite this, Mother decided to move further away
      from Father’s residence.      Mother testified that she did not
      consider moving to the Butler area because there is no reason.
      Mother’s considerations in moving to Irwin were the location of
      her office and the proximity to [Stepfather]’s family. The [c]ourt
      is concerned with Mother’s lack of consideration for the stability
      and convenience of the child in choosing where to reside.




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Id. at 10-11.       Although the trial court faults Mother with the distance

between     the   parties’   residences,       the   court’s   findings   under   Section

5328(a)(11) were not determinative in the custody decision.                  Rather, the

court stated that its “goal in fashioning a new custody schedule is to

maximize the child’s time spent with both parents while accounting for the

child’s school schedule.”      Id. at 13.      Accordingly, because the trial court’s

consideration of the best interest of I.M.S. was careful and thorough, and

the custody decision is reasonable in light of the court’s sustainable findings,

we affirm the custody order.           See King, supra, (stating, “It is not this

Court’s function to determine whether the trial court reached the ‘right’

decision; rather, we must consider whether, ‘based on the evidence

presented, given due deference to the trial court’s weight and credibility

determinations,’ the trial court erred or abused its discretion in awarding

custody to the prevailing party”).

       Order affirmed.7



Judgment Entered.


____________________________________________


7
  With respect to Mother’s argument that the trial court erred in placing the
burden for transportation on her, we conclude this claim is waived for not
being included in the Statement of Questions Involved in her brief. See
Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (stating that any issue not set forth in or suggested by an
appellate brief’s Statement of Questions Involved is deemed waived).



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Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2015




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