J-A06028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.C., MOTHER                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

V.C., FATHER

                           Appellant                No. 2691 EDA 2014


                   Appeal from the Order August 22, 2014
            In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2010-04290


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

MEMORANDUM BY OTT, J.:                                 FILED MAY 08, 2015

      V.C. (“Father”) appeals from the custody order entered on August 22,

2014, in the Court of Common Pleas of Montgomery County, that granted

him partial physical custody for one week during the summer and shared

legal custody with respect to the five children born of the parties’ marriage.

Upon careful review, we affirm.

      Father and S.C. (“Mother”) are the natural parents of the following

children: A.C., a female, born in July of 1997; J.C., a male, born in May of

1999; S.C., a male, born in March of 2001; T.C., a female, born in

November of 2003; and C.C., a male, born in August of 2005 (collectively,

“the Children”). We summarize the relevant factual and procedural history

of this case as follows.
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       Father has not seen the Children since January of 2010, when Mother

left the marital home with the Children without his prior knowledge. N.T.,

8/7/14, at 46; N.T., 8/8/14, at 8-9. On January 20, 2010, Mother initiated a

Protection from Abuse (“PFA”) action against Father.1 Mother subsequently

initiated separate divorce and custody actions.         On February 23, 2010, an

agreed-upon temporary one-year PFA order was issued on behalf of Mother

and the Children. The PFA order included a provision that granted Mother

“primary physical and temporary legal custody,” and stated that this

provision is “subject to further order under separate custody/divorce case

#.” Petition to Relinquish Jurisdiction, 5/26/11, at Exhibit A; N.T., 8/8/14,

at 11-12.     Significantly, at the time of entry of the PFA order, a custody

conciliation conference was pending.           Neither Mother nor Father appeared



____________________________________________


1
  Mother’s PFA action was precipitated by the following event that occurred
in January of 2010, aptly described by the trial court:

       Father had recently purchased a semi-automatic rifle that was
       styled to appear as if it were the notorious military assault
       weapon known as the Kalashnikov, or AK-47. Father wanted to
       show off the weapon to his children, as if it were a toy, but he
       became frustrated when his various displays failed to induce the
       children’s interest. To get his ten year old son[,] J.C.[,] to turn
       his head around and to face father and his new toy, father
       approached from behind and pressed the muzzle of the weapon
       against the boy’s neck.

Trial Court Opinion, 10/21/14, at 2-3.




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for the conference, and the custody action was dismissed. N.T., 8/7/14, at

91-92.

      Pursuant to the temporary PFA order, Father was excluded from the

marital home, and Mother and the Children moved back to the home. N.T.,

8/8/14, at 12. A divorce decree was issued on July 6, 2010. On July 17,

2010, Mother married K.P. (“Stepfather”).      Id. at 117-119.     On July 19,

2010, Mother and the Children relocated to the home of Stepfather in

Flathead County, Montana, without Father’s consent or court approval. Id.

at 113-115.

      Father learned that Mother and the Children had relocated in January

of 2011, upon being served with a PFA petition filed by Mother in the District

Court of the Eleventh Judicial District of the State of Montana, in and for the

County of Flathead (“Montana Court”), requesting an extension of the

temporary PFA order.     N.T., 8/7/14, at 58, 62-63.      The Montana Court

issued a temporary PFA order on February 17, 2011. Petition to Relinquish

Jurisdiction, 5/26/11, at Exhibit C. By order dated April 5, 2011, following a

hearing during which Father testified by telephone, the Montana Court

dismissed the temporary PFA order.         However, in the same order, the

Montana Court directed Father to obtain a psychological evaluation and to

“file a copy of the report with this court.”   Id. at Exhibit E.   Further, the

Montana Court granted an “ex parte emergency jurisdiction order” that

Mother “shall have sole custody of the [C]hildren, and the [C]hildren are not


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to be removed from the State of Montana[.]             [T]his order remains in full

effect until a psychological evaluation of [Father] has been completed and

filed with this court.” Id.

       In the interim, on March 1, 2011, Father filed pro se an emergency

complaint for custody in the Montgomery County Court of Common Pleas

wherein he requested the Children be returned to Pennsylvania. A custody

conciliation conference occurred on May 20, 2011, and, by order the same

date, the court directed that the matter be “listed for court.”              Order,

5/20/11.

       On May 26, 2011, Mother filed a petition in the Court of Common Pleas

of Montgomery County to relinquish jurisdiction of the custody matter and

transfer the case to the Montana Court, or, in the alternative, to stay the

Pennsylvania     custody     matter    pending   the   outcome   of   the   Montana

emergency custody matter. By order dated June 16, 2011, Father’s custody

action was stayed pending resolution of “Montana’s exercise of emergency

custody jurisdiction. . . .” Order, 6/16/11.

       By an agreed-upon interim order dated December 7, 2012, the court

directed, in relevant part, as follows: Montgomery County has jurisdiction to

address Father’s claims for custody.2          Mother shall have primary physical


____________________________________________


2
 The order provided that, “[a]fter the resolution of the pending custody
matter and so long as Mother continues to reside with the children in
(Footnote Continued Next Page)


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custody and shall continue to reside in Flathead County. Father will be able

to communicate directly with the Children’s counselor in Montana regarding

issues with the Children, and, upon the counselor’s availability, “will be able

to communicate with the Children via telephone during their [counseling]

sessions, which to the extent possible shall be scheduled weekly.” Interim

Order, 12/17/12, at ¶ 5. Mother shall “set up a face book [sic] page for the

children to communicate with Father and shall provide Father with the face

book [sic] page information.” Id. at ¶ 7.

      On March 11, 2013, Father filed an emergency petition to modify

custody and petition to hold Mother in contempt of court, wherein he

alleged, inter alia, that Mother failed to allow the Children to participate in

telephone calls with him through their therapist. Father requested that legal

and physical custody of the Children be transferred to him due to “Mother’s

unwillingness to encourage and permit the children to have contact with

Father.” Emergency Petition, 3/11/13, at ¶ 19(b).

      On July 29, 2013, Father filed an amended petition for contempt

wherein he alleged that, since the December of 2012 order, only one

telephone call, in January of 2013, had occurred. Further, he alleged that

Mother closed the Facebook page that had been set up pursuant to the

December of 2012 order.            By order dated November 1, 2013, the court
                       _______________________
(Footnote Continued)

Flathead County, Montana, jurisdiction for future custody decisions shall be
in Flathead County, Montana.” Interim Order, 12/17/12, at ¶ 4.



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directed the parties to select a psychologist/counselor for the purpose of

commencing Father’s telephonic communication pursuant to the December

7, 2012 interim order. By agreed-upon order dated January 30, 2014, the

court directed, in part, that “Dr. Dale Goldberg shall supervise the phone

conversations between Father and the Children.”      Order, 1/30/14, at ¶ 1.

Further, the court directed “[t]o the extent possible, the phone contact shall

occur on a weekly basis.”      Id.   On March 24, 2014, and April 21, 2014,

Father filed pro se petitions for contempt, wherein he alleged that Mother

has failed to comply with court orders for telephone contact between him

and the Children.

      The custody trial resulting in the subject order occurred on August 7

and 8, 2014.   The following witnesses testified: William D. Morgan, M.D.,

who performed a psychological evaluation of Father; Father; Richard Ware, a

psychotherapist who supervised Father’s telephone calls with the Children;

K.C., Father’s wife (“Stepmother”); Mother, by visual and telephonic means;

and K.P., Mother’s husband (“Stepfather”), by visual and telephonic means.

In addition, the trial court interviewed the Children separately in camera, by

visual and telephonic means.

      By order dated August 14, 2014, and entered on August 22, 2014, the

trial court directed that the parties shall share legal custody. Further, the

order provided, in part, that “Father shall have the option of a one week

summer visit to Pennsylvania by all five children with the expense to fly the


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children to Pennsylvania to be borne by the parents at Fifty Percent (50%)

each.” Order, 8/22/14. In addition, on the same date, the court issued an

addendum to the order, which stated, in part, that, “the summer visits are

the only reasonable way to keep Father in touch with the [C]hildren.”

Addendum to Order, 8/22/14. Father timely 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 October 21, 2014, the trial court issued an

opinion pursuant to Rule 1925(a).

      On appeal, Father presents the following issues for our review:

      A. Did the trial court abuse its discretion by insufficiently
      addressing the custody factors set forth in 23 Pa.C.S. § 5328
      and failing to consider the best interests of the [C]hildren?

      B. Did    the trial court err in failing to consider other relevant
      factors   pursuant to 23 Pa.C.S. § 5328(a)(16), specifically that
      Mother    improperly relocated the [C]hildren to Montana without
      [c]ourt   permission?

      C. Did the trial court err in failing to specify the terms of physical
      custody of the [C]hildren?

Father’s brief at 4.

      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

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J-A06028-15


            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,

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

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

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

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

677 (Pa. Super. 2004).

      The Child Custody Act (“the Act”), 23 Pa.C.S. §§ 5321-5340, became

effective on January 24, 2011. Because the proceedings in the instant case

occurred after the effective date of the Act, the Act is applicable. See C.R.F.

v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (concluding that “where the

evidentiary proceeding commences on or after the effective date of the Act,

the provisions of the Act apply even if the request or petition was filed prior

to the effective date.”).

      When awarding any form of custody, the Act provides an enumerated

list of factors a trial court must consider in determining the best interests of

a child:

      § 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.

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           (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.

           (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.

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             (15) The mental and physical condition of a party or
            member of a party’s household.

               (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).3

       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
       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.

____________________________________________


3
  The Act was amended, effective January 1, 2014, to include the additional
factor at 23 Pa.C.S. § 5328(a)(2.1).




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        We review Father’s first and second issues together.               Father argues

that the court “engaged in a hasty, perfunctory analysis” of the Section

5328(a) custody factors. Father’s brief at 16. Further, he asserts that the

court’s custody decision is fatally flawed for failing to consider Mother’s

improper relocation with the Children to the State of Montana as a relevant

factor pursuant to Section 5328(a)(16). In addition, Father asserts that the

court    disregarded    evidence     that,     despite   his   “repeated    attempts   to

reestablish a relationship with his [C]hildren, Mother did everything in her

power to alienate the [C]hildren from Father and cut off all avenues of

contact.” Father’s brief at 11. Finally, Father asserts that the court failed to

consider testimonial evidence regarding the suitability and safety of Mother’s

home and neighborhood in Montana and the Children’s education through

Mother’s homeschooling of them.

        In its addendum to the order entered on August 22, 2014, the court

set forth its assessment of all of the Section 5328(a) custody factors. 4

Although the court provided limited detail with respect to each factor, as

stated above, “there is no required amount of detail for the trial court’s

explanation. . . .” M.J.M., supra at 336. Contrary to Father’s assertion, we

conclude that the court adequately addressed the custody factors, and its


____________________________________________


4
  The addendum to the order cites the custody factors at 23 Pa.C.S.
§ 5329(a), which is a typographical error.



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decision is based on those considerations.       We summarize the court’s

considerations most relevant to its custody decision.

      With respect to Section 5328(a)(3), the parental duties performed by

each party, the court found that Mother performed the parental duties

during the marriage because “Father was a very hard worker and had little

extra time or energy.”   Addendum to Order, 8/22/14.      Father’s testimony

supports this finding. Father testified he was employed during his marriage

to Mother by Lehigh Valley Dairies, where he worked a shift and half, from

2:00 p.m. to 4:00 a.m., five days per week, during the two years prior to his

marital separation.   N.T., 8/7/14, at 41-43.   Father testified he had poor

sleep patterns due to his work schedule, and that both his lack of sleep and

his work schedule affected the time he spent with the Children. Id. at 33-

34, 46.

      With respect to Section 5328(a)(7), the well-reasoned preference of

the child, based on the child’s maturity and judgment, the court interviewed

the Children who were then seventeen, fifteen, thirteen, ten, and nearly nine

years old. The court found that all the Children “strongly desire the status

quo in Montana.” Addendum to Order, 8/22/14. The Children’s in camera

testimony supports this finding.

      With respect to Section 5328(a)(8), the attempts of the parent to turn

the child against the other parent, the court found that “Mother has done her




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best to alienate the [C]hildren against Father.”        Addendum to Order,

8/22/14. Mother’s and Father’s testimony supports this finding.

      With respect to 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, the court weighed this factor

equally between the parties.     The testimony of the parties supports this

finding.   In addition, the testimony of William D. Morgan, M.D., who

performed a psychological evaluation of Father, supports this finding in that

he opined that Father is a fit parent. N.T., 8/7/14, at 7.

      With respect to 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 that this factor favors Mother

because she “has the time.”     Addendum to Order, 8/22/14.       Father’s and

Mother’s testimony supports this finding in that, at the time of the subject

proceedings, Father continued to work for Lehigh Valley Dairies from 2:00

p.m. to 10:00 p.m., five days per week. N.T., 8/7/14, at 99. Significantly,

Father testified he works eight hours overtime per week, usually by working

an additional four hours twice per week. Id. at 100-101. Mother testified

that she does not work outside of the home. N.T., 8/8/14, at 17-18.

      With respect to Section 5328(a)(11), the proximity of the parties’

residences, the court found the proximity “too distant.” Addendum to Order,

8/22/14. The record evidence supports this finding. Father lives in Telford,


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Montgomery County, Pennsylvania, and Mother lives in Flathead County,

Montana. Mother testified that the distance is 2,300 miles. N.T., 8/8/14, at

54. Father and Mother both testified that they are not able to afford the cost

of airline tickets for the Children to fly from Montana to Pennsylvania. N.T.,

8/7/14, at 78-79; N.T., 8/8/14, at 54. Father estimated that the ticket cost

would be approximately $700 per child. N.T., 8/7/14, at 79.

      Finally, with respect to Section 5328(a)(12), each party’s availability

to care for the child or ability to make appropriate child-care arrangements,

the court found that this factor weighs equally between the parties.        This

finding is supported by the testimony of both Mother and Father’s wife, K.C.

(“Stepmother”), whom he married in July of 2012. Stepmother testified she

would be able to accommodate the Children in the marital residence, and

her job “gives a lot of flexibility about what I can and I can’t do, and

accommodating my hours.” N.T., 8/7/14, at 171. Specifically, Stepmother

testified she “can work part time. I can go in later. I can take off when I

need to. . . .” Id.

      In its Rule 1925(a) opinion, the court disagreed with Father’s assertion

that its decision is fatally flawed for failing to consider that Mother relocated

with the Children to Montana without Father’s consent or court approval.

Indeed, the court stated that “it was fully developed during the two day

hearing how [M]other came to live in Montana with the [C]hildren without

first securing [F]ather’s consent or the court’s permission.”        Trial Court


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Opinion, 10/21/14, at 7. This Court has long held that “even the rights of

natural parents are subordinate to the child’s best interest.”      Karner v.

McMahon, 640 A.2d 926, 932 (Pa. Super. 1994) (citing Constant A. v.

Paul C.A., 496 A.2d 1 (Pa. Super. 1985), overruled, on other grounds, by

M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010)); see also In re J.W.,

578 A.2d 952, 957 (Pa. Super. 1990) (“The custody, care, nurture, and

instruction of children resides first in the children’s natural parents, as a

constitutionally recognized fundamental right.”).

      We discern no abuse of discretion by the trial court in finding that,

despite Mother relocating with the Children without Father’s consent or court

approval, the Children’s best interests are to remain in the State of Montana

with Mother and Stepfather. Specifically, the court denied Father’s request

for primary physical custody because “the best interests of the [C]hildren

dictate that they remain in Montana with [M]other and [Stepfather], as they

have been doing well in that situation for more than four years[.] [The court

found] that there were no substantial grounds to conclude that they would

do better in Pennsylvania living with [F]ather.” Id. at 5. Similarly, the court

found that Father did not

      present any evidence whatsoever that granting his request [for
      full physical custody of the Children] would be in the best
      interest of the [C]hildren. Father presented no evidence that
      [M]other was unfit, that her husband was a potential danger,
      that living conditions in Montana are inadequate, or that the
      [C]hildren are being underserved in any way. To the contrary,
      the evidence showed that [M]other is loving and attentive, and


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       that [Stepfather] is also loving and attentive. The [C]hildren
       love him in return and consider him their real father.

Trial Court Opinion, 10/21/14, at 3.           Further, the court found that Father

“has no more time for the [C]hildren now than he did before.”5 Id.

       Likewise, contrary to Father’s contention that the court disregarded

Mother’s behavior in alienating the Children, the court found in its

assessment of Section 5328(a)(8), noted above, that Mother “has done her


____________________________________________


5
  The court also found that Father’s custody request may be “motivated
largely by the desire for something akin to revenge against [M]other.” Trial
Court Opinion, 10/21/13, at 4. The court based this finding on the following
testimony by Father on cross-examination:

       Q. You’re asking for primary physical custody, correct?

       A. Correct.

       Q. That’s what you want the Judge to do, send the kids here to
       live with you?

       A. Yes.

       Q. Don’t you think that that would be a pretty traumatic event
       for them?

       A. Yes, it would be.

       Q. All right. But that’s what you want?

       A. It was done to me. Yes.

       Q. So that was done, so that’s what you want?

       A. Well, I haven’t seen them for five years. I think I deserve five
       years at least.

Trial Court Opinion, 10/21/14, at 4-5 (citing N.T., 8/7/14, at 137-138).




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best to alienate the [Children] against Father.”            Addendum to Order,

8/22/14. In its Rule 1925(a) opinion, the court further explained, in part, as

follows.

       This court was presented with a situation where the [C]hildren
       are safe, and secure, and they have been doing well in Montana
       for more than four years. [Stepfather] is their father-figure.
       The older children do not want a relationship with their [ ]
       [F]ather and the youngest child barely remembers him. The
       memories that remain are unpleasant. The [court] noted that
       [M]other has been largely responsible for this alienation, but the
       fact remained that the [C]hildren’s view of [F]ather is
       tantamount to his being an unwelcome stranger in their lives.
       Apart from her disparaging opinion of [F]ather, [M]other is
       otherwise an attentive, involved, and loving caregiver who is
       good for the [C]hildren.

Trial Court Opinion, 10/21/14, at 13.          Based on our careful review of the

testimonial and documentary evidence of record, we discern no abuse of

discretion by the court as to the weight it accorded to Mother’s attempt to

alienate them6 or in its thorough consideration of the Children’s best

____________________________________________


6
   Father also argues that the subject order “imposes no duty on Mother to
facilitate communication between Father and the children. . . .” Father’s
brief at 16. We conclude that this argument is waived for not being set forth
in the Statement of Questions Involved in Father’s 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). Even
if not waived, we would conclude Father’s argument is without merit. The
trial court found that the telephone calls between Father and the Children
“were more of a burden to the [C]hildren than an effective means to spend
quality time with father.” Trial Court Opinion, 10/21/14, at 5. Therefore,
the court did not order the telephone calls to continue. The record supports
the court’s finding in this regard, and the court’s decision to not require
telephone calls between Father and the Children is reasonable.



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interests given their current ages and the impact on their lives if they would

be required to move to Pennsylvania.

      Further, our review of the record evidence reveals that Father is not

without fault in the damage done to his relationship with the Children. Soon

after Mother left the marital home with the Children, Father learned that

Mother and the Children went to the home of Mother’s parents.             N.T.,

8/7/14, at 48-49. Nevertheless, Father testified he did not attempt to see

the Children “[b]ecause they were not communicating. They took the break.

They made that break, and that was it. I was cut off right there.” Id. at 49.

In addition, although the final PFA order had a custody provision granting

Mother primary physical custody and legal custody and stating that this

provision is “subject to further order under separate custody/divorce case

#”, Father failed to appear at the custody conciliation conference, and the

custody case, filed by Mother, was dismissed. Id. at 91-92. Moreover, on

cross-examination, Father acknowledged that, from January of 2010 to

January of 2011, the time that the PFA order was in effect, he did not file

any action to modify the custody provision in the PFA order. Id. at 92.

      We next address Father’s contention that the court failed to consider

the appropriateness of Mother’s home and neighborhood in Montana.

Mother testified that she and the Children reside with Stepfather in his

double-wide mobile home with four bedrooms, and that the Children have

bedrooms.     N.T., 8/8/14, at 63-64.   Stepfather testified that the mobile


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home is 2,028 square feet.      Id. at 145. In addition, he testified that the

family uses a 36-foot travel trailer parked permanently on the property for

“recreation, sleepovers, slumber parties. . . .”     Id.   With respect to the

neighborhood that the Children live in, Mother testified that she had

concerns about the neighborhood, but it has improved due to new

neighbors. Id. at 70, 73. She testified, “[t]he house next to us . . . had

gone under foreclosure, and now we have neighbors that are awesome, and

[C.C.] now has boys to play with.”      Id. at 72.   Further, Mother testified,

“[t]here’s been a shift, and this area is probably going to turn into more of

an investment area, since it is close to Glacier Park, and that may be what is

starting to happen.” Id. Based on the foregoing testimony, we discern no

abuse of discretion by the court in finding Mother’s home and neighborhood

appropriate for the Children.    In addition, we will not disturb the custody

decision in this regard to the extent it involves the court’s credibility

determination in favor of Mother and Stepfather. See A.V., supra (stating

that we defer to the trial court on issues of credibility and weight of the

evidence).

      Likewise, we discern no abuse of discretion by the court with respect

to the Children’s education in Montana.            Mother testified that she

homeschools all of the Children except J.C., her fifteen-year-old son. N.T.,

8/8/14, at 26.   In addition, Mother homeschooled the Children during her

marriage to Father.   Id. at 19.     Mother testified regarding the Children’s


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academic progress, and she did not note any problems.           Id. at 26-40.

Based on Mother’s testimony and the court’s credibility finding in her favor,

we discern no abuse of discretion by the court in finding the Children’s

education to be adequate. As such, Father’s first and second issues fail.

      In his final issue, Father argues that the court failed to specify the

terms of physical custody in the subject order pursuant to Section 5323(f),

which provides:

      § 5323. Award of custody.

                                     ...

      (f) Enforcement. --In awarding custody, the court shall specify
      the terms and conditions of the award in sufficient detail to
      enable a party to enforce the court order through law
      enforcement authorities.

                                     ...

23 Pa.C.S. § 5323(f).

      Father argues the subject order “fails to award physical custody of the

[C]hildren to either party”, nor provides “‘sufficient detail’ to make it

enforceable. . . .” Father’s brief at 21. The trial court responded in its Rule

1925(a) opinion that, “[i]t should be clear to [F]ather that the [court] denied

outright his request for primary physical custody of the [C]hildren.     There

can be no other plausible explanation for why the court expressly granted

[F]ather ‘the option of a one week summer visit to Pennsylvania by all five

children with the expense to fly the children to Pennsylvania to be borne by

the parents at Fifty Percent (50%) each.’” Trial Court Opinion, 10/21/14, at

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8 (citations to record omitted).   We agree with the court that the custody

order and the addendum to the order include sufficient detail for the parties

to enforce their custodial awards. Thus, Father’s final issue fails. Because

the trial court’s consideration of the Children’s best interests was careful and

thorough, and the record evidence supports the custody decision, we affirm

the custody order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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