J-S94037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.D.R.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

S.B.R.

                             Appellant                 No. 753 MDA 2016


                 Appeal from the Order Entered April 13, 2016
         in the Court of Common Pleas of Franklin County Civil Division
                             at No(s): 2015-1780

C.D.R.                                            IN THE SUPERIOR COURT OF
                                Appellant               PENNSYLVANIA
                      v.

S.B.R.

                                                       No. 869 MDA 2016


                 Appeal from the Order Entered April 13, 2016
         in the Court of Common Pleas of Franklin County Civil Division
                             at No(s): 2015-1780

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 23, 2017

        S.B.R. (“Father”) and C.D.R. (“Mother”) appeal1 from the order of the

Franklin County Court of Common Pleas that ordered shared physical

custody of their daughter, M.R. (“Child”), born in December 2013. Mother



*
    Former Justice specially assigned to the Superior Court.
1
  As noted below, Father initially appealed the custody order at 753 MDA
2016 and Mother filed a cross-appeal at 869 MDA 2016. Because Mother
brought the underlying custody action, she is designated as the appellant.
J-S94037-16


claims that the trial court erred in granting Father’s motion to reconsider and

by denying her primary physical custody. Father claims that the trial court

abused its discretion when it (1) imposed a shared physical custody schedule

requiring Mother and Father to agree on a schedule each month and (2)

required Father to use Child’s maternal grandmother for childcare.         We

vacate and remand for further proceedings.

        Mother and Father are married and previously lived together.      They

continued to live together following Child’s birth in December 2013 until they

separated in April 2015.    Both Mother and Father are employed, but their

employment has historically required them to work irregular schedules with

shifts lasting twelve or twenty-four hours.

        On May 8, 2015, Mother filed a complaint for custody seeking, in

relevant part, primary physical custody, with Father having partial physical

custody on the Wednesdays, Saturdays, and Sundays that Father did not

work.2    Compl., 5/8/15, at 7.   Father filed an answer and new matter on

June 2, 2015, requesting shared physical custody.       Answer & New Matter,

6/2/15, at 7-8 (unpaginated). Father requested certain dates for custody of

Child in June and suggested that he periodically submit to Mother a schedule

of days he was not working each following month.

        On June 4, 2015, the trial court entered a temporary custody order

and scheduled a conciliation conference.       The temporary custody order

2
    Mother and Father agreed to shared legal custody.



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instituted a “graduated schedule” under which Father had physical custody

for: (1) two overnights and an additional day between June 4 and July 1,

2015, (2) three overnights in July 2015, and (3) equal time beginning in

August 2015. Order, 6/4/15, at 2 (unpaginated). The court provided that

“Mother and Father . . . be flexible regarding the scheduling of their periods

of   shared   physical   custody   to   accommodate   their   respective   work

schedules.” Id. The court further required Mother and Father to exchange

their work schedules and agree to a schedule for sharing physical custody on

a monthly basis. Id.     Additionally, the court required that “[i]n the event

that Father needs childcare for the child for an overnight period, he shall

utilize maternal grandmother as his childcare provider.” Id.

      On September 25, 2015, following a conciliation conference, Mother

and Father agreed to a division of holidays and a vacation schedule.        On

October 5, 2015, the court entered a temporary order memorializing that

agreement.

      Thereafter, Mother and Father submitted pretrial memoranda in which

Mother requested primary physical custody and Father requested shared

physical custody.    Following the submission of witness and exhibit lists,

Father filed a motion in limine to preclude Mother’s use of copies of text

messages allegedly exchanged between Father and Mother. The trial court

denied the motion without prejudice to Father’s opportunity to object at trial.




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      The trial court convened a custody hearing on February 23 and March

29, 2016.      The court, over Father’s objections, permitted Mother to use

copies of the proffered text messages and testify that Father (1) referred to

Child using inappropriate language, (2) discussed drinking alcohol or being

intoxicated, and (3) sought an order for an equal share physical custody, but

would agree to allow Mother to exercise physical custody for more than half

of the time.     Mother averred that Father’s primary motivation in seeking

shared custody was to avoid paying support to Mother or to obtain support

from her.

      On April 13, 2016, the trial court entered an opinion and order

regarding custody of Child.     The court directed that physical custody be

shared equally, and maintained the requirement that an agreed-upon

schedule be determined on a monthly basis. Trial Ct. Op. & Order, 4/13/16,

at 8. The court provided that “[i]n the event Father needs childcare for the

child, he shall utilize maternal grandmother as his child-care provider, if she

is available.”   Id. at 9.   Additionally, the court required that Mother and

Father not consume alcohol twelve hours before taking physical custody of

Child or when exercising physical custody. Id.

      On May 11, 2016, Father timely filed a notice of appeal and a

Pa.R.A.P. 1925 statement.      See Pa.R.A.P. 1925(a)(2)(i), (b).   That same

day, Father filed a motion for reconsideration requesting that the trial court

(1) vacate the provision requiring his use of maternal grandmother for



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childcare, (2) set the holiday schedule previously agreed to by the parties,

(3) set an alternating schedule for custody based on his work schedule, and

(4) strike the text messages introduced by Mother at the February 23, 2016

hearing. On May 23, 2016, forty days after entering its custody order, the

trial court purported to grant Father’s motion for reconsideration in part.

Specifically, the court (1) vacated the requirement that Father use maternal

grandmother for childcare and (2) set forth the schedule for holidays

previously agreed to by the parties.     The court denied the remainder of

Father’s motion to reconsider.

      On May 25, 2016, Mother timely filed a notice of cross-appeal and a

Rule 1925 statement.     On June 3, 2016, Mother also filed a motion to

reconsider requesting that the May 23, 2016 order be vacated, which the

trial court denied on June 7, 2016.

      Mother, in the appeal docketed at 896 MDA 2016, presents two

questions, which we have reordered for review:

         Whether the trial court erred by granting Father’s Motion
         for Reconsideration of the April 1[3], 2016 Order of Court
         where the trial court did not have jurisdiction to reconsider
         the order and the reconsidered order was not in the best
         interest of the child?

         Whether the trial court erred by denying Mother’s request
         for primary physical custody of the child where Mother has
         always been [C]hild’s primary caretaker, where Mother’s
         home and family can provide greater stability to [C]hild,
         where there are concerns about the level of care and
         [C]hild’s safety at Father’s home and where Father’s
         motivation for shared physical custody is driven by his
         desire to receive child support?


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Mother’s Brief at 4.

      Mother first argues that the trial court’s May 23, 2016 order purporting

to grant reconsideration must be considered a nullity because it was entered

more than thirty days after the entry of the April 13, 2016 custody order.

The trial court concurs that its order granting reconsideration must be

vacated. We are constrained to agree.

      It is well settled that there is no post-trial motion practice in domestic

relations matters, including custody cases. See Pa.R.C.P. 1930.2(a).

         A party aggrieved by the decision of the court may file a
         motion for reconsideration in accordance with Pa.R.A.P
         1701(b)(3). If the court does not grant the motion for
         reconsideration within the time permitted, the time for
         filing a notice of appeal will run as if the motion for
         reconsideration had never been presented to the court.

Pa.R.C.P. 1930.2(b); see also Pa.R.A.P. 1701(b)(3) (“A timely order

granting reconsideration under this paragraph shall render inoperative any

such notice of appeal . . . theretofore or thereafter filed or docketed with

respect to the prior order.”); Valentine v. Wroten, 580 A.2d 757, 758 (Pa.

Super. 1990) (“The appeal in this case should have been filed within thirty

days from the [custody] order or, reconsideration should have expressly

been granted within thirty days of that order.”).

      Instantly, the trial court did not grant Father reconsideration of the

April 13, 2016 order within thirty days, that is, by May 13, 2016.         See

Pa.R.C.P. 1930.2(b). Therefore, we agree with Mother that this Court must



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vacate the untimely May 23, 2016 order granting Father requests to (1)

vacate the requirement that Father use maternal grandmother for childcare

and (2) set the schedule for holidays previously agreed to by the parties.

See Valentine, 580 A.2d at 758.          We note, however, that the court

suggests that the provisions set forth in its May 23, 2016 order were proper

in light of the record and the best interests of Child. Trial Ct. Op., 6/23/16,

at 1 n.1, 5.

      Mother next argues that “the evidence at trial demonstrates that the

best interest of [C]hild would have been for the trial court to grant Mother’s

request for primary physical custody.”       Mother’s Brief at 18.     Mother

contends that the order for shared physical custody is unreasonable because

(1) she was the primary caretaker of Child since birth and continues to

handle basic caretaking matters, (2) the shared custody arrangement has

had a destabilizing effect on Child, (3) Father was apathetic to Child for most

of Child’s life, (4) Father’s main motivation for shared custody was to avoid

paying, or having Mother pay him, support, and (5) Father’s consumption of

alcohol and failure to secure his firearms posed risks to Child. Id. at 20-24.

      Father responds that there was competent evidence supporting the

trial court’s determinations regarding shared physical custody and its order

was appropriate.   Father’s Brief at 33.   He contends that “Mother is now

asking this Honorable Court to disregard the factual findings and credibility




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determinations in favor of her factual findings and credibility determinations

which is not within the purview of this Honorable Court.” Id. at 32.

      In her reply brief, Mother avers that Father was held in contempt of

the April 13, 2016 order for violating the provision to refrain from consuming

alcohol twelve hours before taking physical custody. Mother’s Reply Brief at

3. Mother attaches to her reply brief a copy of an October 27, 2016 order

finding Father in contempt, awarding Mother $800 in attorney’s fees, and

directing Father to undergo a drug and alcohol evaluation conducted by an

evaluator agreed to by the parties.     See Attachment B to Mother’s Reply

Brief. Under the unique circumstances of this case, we vacate the April 13,

2016 order and remand for further proceedings.

      Our standard and scope of review is as follow:

         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.

         With any child custody case, the paramount concern is the
         best interests of the child. This standard requires a case-
         by-case assessment of all the factors that may legitimately



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         affect the physical, intellectual, moral and spiritual well-
         being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (citation omitted).

      While this Court affords the trial court great deference on issues of

credibility and the weight of the evidence,

         [c]hild custody orders are temporary in nature and always
         subject to change if new circumstances affect the welfare
         of a child. The Commonwealth has a duty of paramount
         importance, to protect the child’s best interests and
         welfare.    To that end, it may always entertain an
         application for modification and adjustment of custodial
         rights.

Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004) (citation omitted).

      The trial court, following the hearings in the instant action, explained:

         There was much testimony, as well as photographic
         exhibits, from Mother regarding Father’s drinking habits,
         and her fears that they have a negative impact on
         [Child].[3] Father credibly admitted to his drinking habits,
         as well as two DUI’s he received in 2007. However, Father
         was adamant that he does not drink during or twelve hours
         before his custodial periods, and the [c]ourt found him to
         be credible.[4] The [c]ourt was presented with no evidence

3
  For example, Mother testified that Father drank “pretty frequently” and
“always in excess.” N.T., 2/23/16 at 78. She testified that Father appeared
intoxicated at one of the custody exchanges. Id. at 89. Mother also visited
the former marital residence, where Father was staying following separation,
and took pictures of beer located in the refrigerator, numerous empty beer
cans on the kitchen counter, an empty “thirty pack” of beer in the trash can,
and numerous empty beer cans in the garage. Id. at 98-102; Pl.’s Ex. 5a-i.
Mother and Father sold the former marital residence in November 2015,
approximately seven months after their separation.
4
 Father admitted to two driving under the influence incidents at the end of
2007. N.T., 3/29/16, at 54. He denied drinking twelve hours before or
during his periods of custody. Id. Father was aware that Mother suspected



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         that Father’s drinking has negatively impacted [Child]
         while she was in his custody.

Trial Ct. Op. & Order at 6-7. The court concluded that the history of drug or

alcohol abuse of a party or a member of the party’s household was not a

“factor . . . in favor of either party.” Id. at 7.

      Instantly, the allegation that Father was found in contempt for

violating the provision that he not consume alcohol twelve hours before

taking custody of Child, if true, has the potential to disturb the trial court’s

credibility determinations regarding Father’s “drinking habits.”     Moreover,

there is an allegation that Father has agreed to submit to a drug and alcohol

evaluation.   The results of that evaluation could be material to the trial

court’s findings of fact and credibility determination as it pertains to “[t]he

history of drug or alcohol abuse of a party or member of a party’s

household.” 23 Pa.C.S. § 5328(a)(14). Moreover, it could cause the trial

court to reweigh this factor or the possible impact Father’s conduct may

have on Child.

      In light of the continuing duty to protect a child’s best interests and

welfare, we conclude that it is in the best interests of Child to vacate the

April 13, 2016 order to permit the trial court to consider in the first instance



he was drinking before a custody exchange, but indicated that the suspicion
was based on the odor of cigarettes. Id. at 55. Father admitted that he
drank four or five beers with friends at dinner the evening before taking
custody of Child at 2:00 p.m. the following day. He denied consuming
alcohol twelve hours before the exchange or being intoxicated. Id. at 121.



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the allegations against Father and the possible results of the drug and

alcohol evaluation. Thus, we vacate the order as a whole. In so doing, the

trial court may address its former requirement that Father utilize maternal

grandmother for childcare as well as the suitability of requiring the parties to

agree upon a physical custody schedule on a monthly basis. The court shall

permit any additional evidence and argument as it deems necessary.

      Father, in the appeal docketed at 753 MDA 2016, presents the

following questions for review:

         Did the trial court abuse its discretion and act contrary to
         the weight of the evidence in entering a shared physical
         custody schedule based on the schedule in the Order of
         Court and Directive for Conciliation entered on June 4,
         2015 when both parties creditably testified that it was
         difficult for them to agree to a custody schedule each
         month and that it would be in [Child’s] best interest if she
         had a set and predictable custody schedule[?]

         Did the trial court abuse its discretion and act contrary to
         the weight of the evidence and its own factual conclusions
         in entering an Order that “In the event that Father needs
         childcare for the child, he shall utilize maternal
         grandmother as his child-care provider, if she is available,”
         when the [t]rial [c]ourt found that both parents have
         extended family that are involved in [Child’s] life and “are
         available to provide resources for [Child]”[?]

         Did the [t]rial [c]ourt abuse its discretion by entering
         provision five (5) of the Order as this provision is contrary
         to the weight of the evidence and gives preferential
         treatment to Mother’s extended family to the detriment of
         Father's extended family[?]




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Father’s Brief at 8.5   Instantly, our decision to vacate the April 13, 2016

order moots Father’s issues on appeal.

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2017




5
  We have shortened Father’s statement of the questions presented to
exclude unnecessary detail. See Pa.R.A.P. 2116(a). Moreover, Father
presented a fourth question for review, namely:

         Did the [t]rial [c]ourt abuse its discretion by permitting the
         entrance of [Mother]’s exhibits 4e, 4f, and 4h as these
         exhibits are [text-message] communications between the
         parties regarding settlement negotiations and offers of
         compromise in the entrance of the June 4, 2015 Order of
         Court and should have been excluded under Pa.R.E. 408[?]

Father’s Brief at 9. However, Father notes he “waives his right to pursue
these erroneous evidentiary rulings on appeal.” Id. A review of Father’s
brief confirms that he has abandoned that issue.



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