J. A19008/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

M.P. A/K/A M.S.                         :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
C.J.P.,                                 :          No. 40 EDA 2016
                                        :
                       Appellant        :


             Appeal from the Order Entered December 7, 2015,
               in the Court of Common Pleas of Lehigh County
              Domestic Relations Division at No. 2006-FC-0697


BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 23, 2016

      C.J.P. (“Father”) appeals, pro se, from the order dated December 4,

2015, and entered December 7, 2015, in the Lehigh County Court of

Common Pleas, which denied the petition for modification of custody of C.P.,

born in April of 2003, and A.J.P., born in May of 2005 (collectively,

“Children”), filed by M.P. (“Mother”), granted in part and denied in part the

petition for modification of custody filed by Father, and awarded the parties




* Former Justice specially assigned to the Superior Court.
J. A19008/16


shared legal custody, Mother primary physical custody, and Father partial

physical custody.1   2
                         After review, we affirm.

      The relevant procedural and factual history was summarized by the

trial court as follows:

                  The parties married on November 8, 2002 in
            Fort Myers, Florida. They have two minor children,
            C.P., born [in April of 2003], and A.J.P., born [in May
            of 2005]. [Mother] filed a complaint in divorce on
            June 8, 2006.

                  The    parties   initially entered    into   an
            agreed-upon custody order on May 10, 2007 under
            which they shared joint legal custody and [Mother]
            had primary physical custody of the children.
            Following the entry of that order, there were a
            number of subsequent modification petitions and
            emergency custody petitions in this matter which led
            to several modified orders. The last custody order in
            place prior to the order from which the instant
            appeal in being taken was entered on December 3,
            2014.[3] The December 3, 2014 order made certain
            modifications to the physical custodial schedule, but
            otherwise maintained the status quo of shared legal




1
   The court additionally granted Mother’s petition for contempt and
sanctioned Father. Father does not address this portion of the trial court’s
order; therefore, Father waived any challenge to the contempt sanction
portion of the order.
2
  While awarding Father partial physical custody, which he had previously
been awarded, the trial court reduced Father’s custodial time. (See order,
12/7/15 at 6-7; order, 12/4/14 at 7.)
3
 The certified record reflects that, while this order was dated December 3,
2014, it was not entered for purposes of Pa.R.C.P. 236(b) until December 4,
2014. (Order, 12/4/14.)


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           custody and       primary    physical   custody   with
           [Mother].[4]

                 On March 3, 2015, [Mother] filed a petition for
           modification of the December 4, 2014 order.
           However, this petition was dismissed on March 31,
           2015 at [Mother]’s request.

                  On May 11, 2015, [Father] filed a petition for
           modification of the December 4, 2014 order.
           [Mother] filed an Answer with a cross-petition to
           modify on June 11, 2015. [Mother] also filed a
           petition for contempt on the same day.

                 The Court conducted a custody trial on
           December 2, 2015 to consider [Father]’s May 11,
           2015 modification and contempt petitions, as well as
           [Mother]’s     answers     and    cross-petitions   for
           modification and contempt filed June 11, 2015.[ ] [6]
                                                             5

           After the trial, the Court issued an order granting in
           part and denying in part [Father]’s petition to modify




4
  This order granted Father partial physical custody during a two-week
period from Thursday after school until Monday morning when Children were
to be dropped off timely at school (or at Mother’s residence by 10:00 a.m., if
no school) the first week, and from Wednesday after school until Friday
morning when Children were to be dropped off timely at school (or at
Mother’s residence by 10:00 a.m., if no school) the second week. (Order,
12/4/14 at 7.)
5
  Upon review of the record, the trial court erroneously suggests a petition
for contempt was filed on behalf of Father.
6
  At the hearing on December 2, 2015, both Father and Mother testified on
their own behalf. Additionally, Mother presented the testimony of her fiancé,
S.K., and the court interviewed Children, in camera.


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            the custody order.[7]       The Court also granted
            [Mother]’s contempt petition and imposed a fine on
            [Father], as well as ordering him to pay counsel fees
            to [Mother].[8]

Trial court opinion, 1/25/16 at 1-2.

      On January 4, 2016, Father filed a notice of appeal, pro se, along with

what he titled “A Briefing of Reasoning as to Why the Appeal,” which he also

later submitted as his appellate brief.9

      On appeal, Father takes issue with the trial court’s award of less

custodial time with Children, arguing that “such a significant reduction of

custody time will truly harm them particularly now in their impressionable

years.” (Father’s brief at 1 (unpaginated).) Father proceeds to list each of

the 17 custody factors and dispute the trial court’s findings and/or note his

disagreement as to certain factors.          (Id. at 1-7 (unpaginated).)   As



7
  This order granted the parties shared legal custody, Mother primary
physical custody, and Father partial physical custody. Specifically, Father
was awarded partial physical custody from Thursday after school until Friday
morning when Children were to be dropped off timely at school (or at
Mother’s residence by 10:00 a.m., if no school) and on alternating weekends
beginning Friday after school until Monday morning when Children were to
be dropped off timely at school (or at Mother’s residence by 10:00 a.m., if
no school). (Order, 12/7/15 at 6-7.)
8
  The court additionally denied Mother’s request for modification.    (Order,
12/7/15 at 6.)
9
  Although Father’s brief may not be in conformity with Pennsylvania Rule of
Appellate Procedure 2111, et seq., as we find Father’s arguments
comprehensible and no resulting prejudice to Mother, and as Mother fails to
allege any resulting prejudice, we decline to dismiss and/or quash Father’s
appeal.


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characterized by the trial court, “[Father] . . . essentially reviews the various

factors and points out several instances where Appellant disagreed with the

Court’s determination or rationale.” (Trial court opinion, 1/25/16 at 4.)

      Our standard of review with regard to a custody matter is well settled:

                  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.

            V.B. v. J.E.B., 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., 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. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015).

      Section 5328 provides as follows:


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          (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,


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                     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.



                                  -7-
J. A19008/16


23 Pa.C.S.A. § 5328(a).

      As we interpret his challenge to the trial court’s order, Father, in

essence, questions the trial court’s conclusions and assessments and seeks

for this court to re-find facts, re-weigh evidence, and/or re-assess credibility.

This we cannot do. Under the aforementioned standard of review applicable

in custody matters, the trial court’s findings of fact and determinations

regarding credibility and weight of the evidence are not disturbed if there is

any evidence in the record to support them. See E.R., 129 A.3d at 527. As

we stated in King v. King, 889 A.2d 630 (Pa.Super. 2005):

            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 [sic] due deference to the trial
            court’s weight and credibility determinations,” the
            trial court erred or abused its discretion. . . .

Id. at 632, quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super.

2005).

      In the instant matter, the trial court carefully analyzed and addressed

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

(Order, 12/7/15 at 1-6.)     Thus, after review of the record, we determine

that the trial court’s findings and determinations regarding the custody

factors are supported by competent evidence in the record, and we will not

disturb them. See E.R., 129 A.3d at 527.




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

court awarding the parties shared legal custody, Mother primary physical

custody, and Father partial physical custody.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2016




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