J-A14011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 D.C.L.                                  :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 T.C.L.B.                                :
                                         :
                   Appellant             :         No. 41 EDA 2018

              Appeal from the Order Dated November 21, 2017
               In the Court of Common Pleas of Bucks County
                  Domestic Relations at No(s): 2009-63987


BEFORE:     GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JULY 03, 2018

     Appellant, T.C.L.B. (“Mother”), appeals from the order entered in the

Bucks County Court of Common Pleas, which granted the petition of Appellee,

D.C.L. (“Father”), to modify custody, concerning the parties’ minor son, D.L.

(“Child”). We affirm.

     The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we summarize them as follows. Mother and

Father were married on February 22, 2007, separated in February of 2010,

and divorced on September 10, 2010. They have one male child together who

was born in August of 2008. Both Mother and Father have remarried. Mother

and Stepfather live in Haddonfield, New Jersey with their one child. Mother

works full-time for the Federal Aviation Administration at the Philadelphia

International Airport, and part-time for the New Jersey Air National Guard.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Stepfather is a retired United States Air Force and commercial pilot. Father

and Stepmother live in Langhorne, Pennsylvania with their one child. Father

works full-time as a cardiologist in Bucks County. Stepmother is currently

unemployed.    Father also has several other children from prior marriages

before his marriage to Mother.

     In Father’s divorce complaint of January 19, 2010, he sought partial

physical custody of Child. On February 19, 2010, Mother and Father reached

a Stipulation Agreement to share legal custody and for Mother to have primary

physical custody of Child, subject to Father’s periods of partial physical

custody. Subsequent to the Stipulation Agreement, disputes arose regarding

the custody of Child. The court held a custody hearing on April 24, 2014, and

ordered a custody evaluation. On October 16, 2014, Father filed a petition to

modify custody. After a custody hearing on November 14, 2014, the court

again ordered a custody evaluation.     On December 15, 2014, the court

appointed Dr. Cooke to perform the custody evaluation.

     During 2015, the New Jersey Division of Child Protection and

Permanency (“DCPP”) became involved due to reports that Mother was driving

while intoxicated with Child in the car. On April 22, 2015, Mother attempted

suicide because she believed DCPP was going to take Child from her.

Consequently, the New Jersey court temporarily transferred physical custody

of Child to Father. Child remained in Father’s custody from April 23, 2015 to

November 4, 2015, after which the 2010 custody order was restored.


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      On February 8, 2016, Dr. Cooke issued a custody evaluation report,

opining that Mother should have primary physical custody.         Following Dr.

Cooke’s report, the court held nine additional custody hearings. On November

21, 2017, the court entered a custody order granting Father primary physical

custody of Child, subject to Mother’s periods of partial physical custody.

Father filed an emergency petition for contempt on November 28, 2017,

alleging Mother had failed to transfer Child to him per the court’s custody

order. On November 30, 2017, the court held a hearing and found Mother in

contempt. The court also issued an interim order suspending Mother’s partial

physical custody for failure to transfer custody, pending another hearing. On

December 19, 2017, Mother timely filed a notice of appeal and Rule

1925(a)(2)(i) statement, at docket 41 EDA 2018, from the November 21,

2017 custody order. On December 21, 2017, the parties appeared before the

court, but after being advised of Mother’s notice of appeal, the court cancelled

the hearing and kept the November 30, 2017 interim order suspending

Mother’s partial custody in effect.   On December 22, 2017, Mother filed a

second notice of appeal, at docket 42 EDA 2018, from the November 30, 2017

order. On February 6, 2018, this Court sua sponte quashed the appeal at

docket 42 EDA 2018, as interlocutory.

      Mother raises the following issues for our review:

         WAS IT AN ERROR AND AN ABUSE OF DISCRETION FOR THE
         TRIAL COURT TO REJECT THE REPORT AUTHORED AND THE
         TESTIMONY OFFERED BY THE NEUTRAL CUSTODY
         EVALUATOR    IN   FASHIONING    AN   ORDER   THAT

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         TRANSFERRED PRIMARY PHYSICAL CUSTODY OF THE
         SUBJECT CHILD FROM [MOTHER] TO [FATHER]?

         WAS IT AN ERROR AND AN ABUSE OF DISCRETION FOR THE
         TRIAL COURT TO REJECT OR IGNORE VOLUMINOUS AND
         SUBSTANTIVE EVIDENCE IN FASHIONING AN ORDER THAT
         TRANSFERRED PRIMARY PHYSICAL CUSTODY OF THE
         SUBJECT CHILD FROM [MOTHER] TO [FATHER]?

         WAS IT AN ERROR AND AN ABUSE OF DISCRETION FOR THE
         TRIAL COURT TO ENTER AN ORDER THAT WAS PUNITIVE
         TO [MOTHER] AND CONTRARY TO THE BEST INTEREST OF
         THE SUBJECT CHILD?

(Mother’s Brief at 6).

      In reviewing a child custody order:

         [O]ur scope is of the broadest type and our standard is
         abuse of discretion. This Court 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, this Court must defer
         to the trial judge who presided over the proceedings and
         thus viewed 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.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation

omitted). “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 affect the physical, intellectual, moral and

spiritual well-being of the child.” A.D. v. M.A.B., 989 A.2d 32, 36 (Pa.Super.


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2010).

     When deciding whether to modify an existing custody order, the trial

court must consider all of the factors set forth at 23 Pa.C.S.A. § 5328(a).

J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011). The Child Custody Act (“Act”)

provides:

         § 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)
            (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). The amount of weight a trial court gives to any one

factor is largely within the court’s discretion. M.J.M. v. M.L.G., 63 A.3d 331,

339 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013)

(explaining trial court’s purview, as finder of fact, is to determine which factors

are most salient and critical in each particular case).

      Further, the trial court is not required to accept the conclusions of a

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custody evaluator in a child custody case.     M.A.T. v. G.S.T., 989 A.2d 11

(Pa.Super. 2010) (en banc). “It is an abuse of discretion, however, for a trial

court to dismiss as unpersuasive, and to totally discount, uncontradicted

expert testimony.” Id. at 19. Thus, the trial court must consider a custody

evaluator’s conclusions, “and if the trial court chooses not to follow the

expert’s recommendations, its independent decision must be supported by

competent evidence of record.” Id. at 20.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Susan Devlin

Scott, we conclude Mother’s issues merit no relief. The trial court opinion fully

discusses and properly disposes of the questions presented. (See Trial Court

Opinion, filed January 24, 2018, at 6-20; 22-23) (finding: court considered

but did not accept Dr. Cooke’s recommendation for Mother to retain primary

physical custody of Child because: (a) Dr. Cooke discounted Mother’s history

of alcoholism and its impact on Child; (b) Dr. Cooke’s conclusion that Mother

and Father withheld Child for equivalent periods of time is not supported by

record, which shows Mother withheld Child from Father more often; (c) Dr.

Cooke did not consider Mother’s Post Traumatic Stress Disorder; (d) Dr.

Cooke did not assess Mother’s extreme dislike of Father, which court found

unwarranted; (e) Dr. Cooke did not take into account that Stepfather is

significant, if not primary, caregiver for Child when Child is in Mother’s care

during week; (f) Stepmother’s criminal history was for non-violent offenses


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and relatively insignificant; (g) Stepmother’s attempts to replace Mother have

been unsuccessful; (h) Child is not alienated from Mother; (i) Father was

primary caregiver when Child resided with him and is parent who can better

maintain loving, consistent and nurturing relationship with Child and attend to

Child’s emotional needs; awarding primary physical custody of Child to Father

is in Child’s best interests).1 Accordingly, we affirm on the basis of the trial

court opinion.

       Order affirmed.

       Judge Platt joins this memorandum.

       Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/3/18



____________________________________________


1  We decline to dismiss this appeal for vagueness of Mother’s Rule
1925(a)(2)(i) statement. The trial court adequately addressed Mother’s
appellate issues in its opinion and remarks from the bench on November 21,
2017 (attached to the court’s opinion as Exhibit “B”). Moreover, to the extent
the trial court did not address any of Mother’s precise claims on appeal, those
claims would be waived for vagueness; and we would still decline to dismiss
the appeal on that basis. See In re K.L.S., 594 Pa. 194, 934 A.2d 1244
(2007) (noting if appellant waives issues on appeal, then we should affirm
trial court’s decision rather than quash or dismiss appeal); In re A.B., 63 A.3d
345 (Pa.Super. 2013) (explaining this Court may deem issues waived on
appeal where concise statement is too vague to permit meaningful review).

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