J-A24011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    M.L.B.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    A.G.Q.                                     :
                                               :
                       Appellant               :   No. 1361 EDA 2019

                  Appeal from the Order Entered April 8, 2019
     In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                                2013-FC-1270


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED DECEMBER 19, 2019

        A.G.Q. (Father) appeals from the order, dated April 5, 2019, and entered

on April 8, 2019, that found both Father and M.L.B. (Mother) in contempt of

the May 18, 2018 order concerning the custody of I.S.Q. (Child), the parties’

daughter, who was born in June of 2008. Father’s appeal is also directed at

the modification of the May 18, 2018 custody order as contained in the April

8, 2019 order. After review, we affirm.

        Father sets forth an accurate statement of the history of this case in his

brief, as follows:

             The first Order in this case was entered on March 19, 2014,
        based upon an agreement of the parties. That Order provided for
        shared legal custody with primary physical custody with Mother
        and Father having partial periods of physical custody. At the time
        the Order was entered, Father was enlisted in the United States

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        Army and stationed in Ft. Stewart, Georgia, while Mother and the
        minor [C]hild lived in Lehigh County, Pennsylvania.

               Upon his discharge from the United States Army, Father
        filed a Petition for Modification on April 20, 2018. In his Petition,
        Father asserted that he had been discharged from the Army and
        was then residing with his mother in Lehigh County, Pennsylvania.
        The Petition for Modification requested joint physical custody of
        the minor [C]hild. The matter was conferenced before a Custody
        Hearing Officer in Lehigh County and an Agreed Order was entered
        on May 18, 2018[,] maintaining shared legal custody but granting
        Father expanded periods of partial custody, including shared
        physical custody in the summer months.

              On July 2, 2018, Father filed a Petition for Contempt and a
        separate Petition for Modification.[1] In his Petition for Contempt,
        Father alleged that Mother had denied him partial physical custody
        pursuant to the Order; that Mother had failed to notify him of a
        motor vehicle accident; that Mother denied him daily telephone
        contact as set forth in the Order; and, that Mother was failing to
        take the [C]hild to daycare as required in the underlying Order.

              Father’s Petition for Modification requested primary physical
        custody of the minor [C]hild on the basis that Mother has
        continuously and habitually interfered with Father’s contact with
        the minor [C]hild; that the [C]hild had missed substantial days
        from school between January 2018 and June 7, 2018; that the
        [C]hild had missed substantial time from daycare despite the
        Order requiring the [C]hild to attend daycare; and, alleging
        Mother’s alienation of the [C]hild towards Father.

              The matter was once again conferenced with the Custody
        Hearing Officer in Lehigh County. The matter could not be
        resolved, as a result of which by the Order of September 14, 2018,
        the Honorable J. Brian Johnson was assigned to the within matter.

              The parties attended a pretrial conference on October 25,
        2018. During the pretrial conference, Father took the position
        that he would accept a shared physical custody arrangement with
        the [C]hild. Counsel informed the [c]ourt that they believed the
        matter could be resolved by agreement without the necessity of
____________________________________________


1   On August 15, 2018, Mother also filed a petition for contempt against Father.

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       trial.   A trial was scheduled for November 28, 2018.
       Unfortunately, the matter had to be continued as a result of
       Mother[’s] delivering a new child with her current husband.
       Accordingly, the trial was continued to March 6, 2019.

              Father filed a Petition for Emergency Relief on December 11,
       2018, after discovering that Mother had moved and changed the
       [C]hild’s school district without any notification to Father and
       failed to list Father on the registration paperwork. That matter
       was scheduled for a hearing before the Honorable J. Brian Johnson
       on December 20, 2018. At that time, after a hearing, the [c]ourt
       denied and dismissed Father's Petition but indicated that it would
       take the matter into consideration in the overall custody
       disposition presently pending before the [c]ourt and would
       incorporate the transcript into the record at the custody trial.

              The parties appeared for trial on March 6, 2019[,] but were
       unable to conclude the matter at that time and a second hearing
       was scheduled for April 1, 2019. The [c]ourt entered an Order on
       April [8], 2019,[2] adjudicating both parties in contempt of the May
       18, 2018 Order and directing both parties to pay $500.00 in fines
       to the [c]ourt within thirty days. The trial court also modified the
       May 18, 2018 Order to provide Father with an additional dinner
       visit on Tuesdays from 4:30 p.m. to 8:30 p.m., as well as award
       Father every Veteran’s Day.

            Father filed a Notice of Appeal on May 6, 2019, along with a
       Statement of Matters Complained Of [on Appeal]. After the
       Superior Court appeal was filed, the [c]ourt entered an Order on
       May 7, 2019, vacating its April [8], 2019 Order.

Father’s brief at 20-24 (emphasis added).

       Mother’s brief appears to accept Father’s statement of the case. She

only adds that:

       On July 2, 2019[,] the trial court issued a Final Custody order,
       replacing the Order dated April 5, 2019, [and entered April 8,
       2019,] which the trial court [had] vacated sua sponte on May 7,

____________________________________________


2 The order entered on April 8, 2019, was dated April 5, 2019, and is the order
from which Father filed his appeal.

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      2019. The July 2, 2019 Order is, other than the date of entry, a
      verbatim restatement of the April 5, 2019 Order.

Mother’s brief at 5 (citations to the record omitted).

      Our review recognizes that the trial court attaches a portion of the

transcript from the custody trial to its April 8, 2019 order, wherein the court

announced its decision from the bench. Essentially, the notes of testimony

contain the court’s review of the custody factors listed at 23 Pa.C.S. §

5328(a)(1)–(16). Moreover, we note that in its Pa.R.A.P. 1925(a) Statement,

the trial court suggests that because it vacated the April 8, 2019 order now

on appeal by entering its May 7, 2019 order, the appeal before us should be

quashed as moot. We disagree because the trial court did not have jurisdiction

to enter its May 7, 2019 order after Father filed an appeal. See 42 Pa.C.S. §

5505. That statute states:

      Except as otherwise provided or prescribed by law, a court upon
      notice to the parties may modify or rescind any order within 30
      days after its entry, notwithstanding the prior termination of any
      term of court, if no appeal from such order has been taken or
      allowed.

42 Pa.C.S. § 5505. See also Manufacturers and Traders Trust Co. v.

Greenville, 108 A.3d 913, 918 (Pa. Super. 2015) (stating “[i]f no appeal is

filed, a court may, under § 5505, rescind or modify a final order if it gives

notice to the parties”). Because Father filed his appeal from the April 8, 2019

order on May 6, 2019, after May 6, 2019, the trial court did not have

jurisdiction to vacate the April 8, 2019 order. Accordingly, the April 8, 2019




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order remains as a final order and Father’s appeal from that order is properly

before us in this appeal.

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

      A. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
         FAILING TO AWARD [FATHER] SHARED PHYSICAL CUSTODY
         OF THE MINOR CHILD BASED ON STATUTORY FACTORS
         ENUMERATED IN 23 Pa.C.S.[] § 5328 AND IN PARTICULAR[]
         FAILING TO ADEQUATELY ANALYZE FACTOR #1?

      B. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
         DETERMINING FACTOR #2 IN MOTHER’S FAVOR?

      C. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
         DETERMINING THAT FACTOR #3 WEIGHED IN MOTHER’S
         FAVOR AS SHE HAD BEEN THE PRIMARY CAREGIVER?

      D. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
         FINDING THAT FACTOR #4, STABILITY AND CONTINUITY IN
         THE CHILD’S EDUCATION, FAMILY LIFE AND COMMUNITY,
         WERE EVEN BETWEEN THE PARTIES?

      E. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
         DETERMINING FACTOR #7 IN NOT AFFORDING THE CHILD’S
         TESTIMONY SIGNIFICANT WEIGHT IN ITS AWARD OF
         CUSTODY?

      F. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION
         WHEN ADDRESSING FACTOR #10 AND STAT[ING] “WHILE
         BOTH PARTIES APPEAR TO BE ABLE TO ATTEND TO THESE
         NEEDS, GIVEN THE FACT THAT THE CHILD IS A GIRL AND IS
         APPROACHING PUBERTY, MOTHER WOULD BE MORE LIKELY
         TO BE ABLE TO ASSIST THE CHILD IN GOING THROUGH THAT
         TIME OF HER LIFE.     SO THIS FACTOR WOULD FAVOR
         MOTHER”?

      G. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
         FINDING FATHER IN CONTEMPT?

Father’s brief at 18-19.

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

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             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 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) (quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted)).

      “[W]hen making a custody award, ‘[t]he court shall delineate the

reasons for its decision on the record in open court or in a written opinion or

order.’” Id. at 335. The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S. § 5328(a), which provides as follows:

      (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



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          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, 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.


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            (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. § 5328(a).

      As noted above, attached to the April 8, 2019 custody order, the court

included the transcript of its recitation of the facts of the case as they relate

to the various factors. The court found that factors (1), (4), (6), (8), (9),

(11), (12), (13), (14), (15), and (16) favored neither party or were even. The

court found that factor (5) favored Father, while factors (2), (3), (7), and (10)

favored Mother.    Specifically, with regard to these five factors, the court

stated:

      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.
      (Includes criminal convictions under 23 P.S. § 5303.) See Exhibits
      A and B. The parties both testified about an incident in Alaska in
      2010 or 2011, in which Mother says Father grabbed her by the
      neck and lifted her off the ground. Father did not describe the
      incident, but rather said that an argument “snowballed.” We find
      Mother credible on this. This factor favors Mother.

      3. The parental duties performed by each party on behalf of the
      Child. Primary caregiver. Past and present possession of the
      Child. The Child has virtually always lived with Mother and Mother
      has cared for her continuously. It is not good that the Child has
      missed so many days from school, but this is not enough to disturb
      the fact that Mother has been the primary caregiver. Thus, this
      factor favors Mother.

                                     . . .


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      5. The availability of extended family. Father testified his mother
      lives a quarter of a mile from him and, indeed, his mother testified
      to the same. Mother has no family in Pennsylvania. Therefore,
      this factor favors Father.

                                     . . .

      7. The well-reasoned preference of the Child, based on the Child’s
      maturity and judgment. The [c]ourt interviewed the Child and she
      indicated that she liked it at both Mother’s house and Father’s
      house and that she would like to spend some more time at
      Father’s house. Father teaches the mixed martial arts class she
      takes on Tuesdays and the Child would like to have a period of
      custody with him that evening. When the [c]ourt discussed the
      various custody options with her, she expressed that her favorite
      options were the additional Tuesday or week on, week off after
      the [c]ourt mentioned the week on, week off as a possibility. This
      factor favors Mother or shared physical custody.

                                     . . .

      10. Which party is more likely to attend to the daily physical,
      emotional, developmental, educational and special needs of the
      Child? (including religious training and doctor visits). While both
      parties appear to be able to attend to these needs, given the fact
      that the Child is a girl and is approaching puberty, Mother would
      be more likely to be able to assist the Child in going through that
      time of her life. So this factor would favor Mother.

N.T. Trial, 4/1/19, at 2-6 (attached to the April 8, 2019 trial court order). In

light of the issues Father raises, we also include the court’s discussion relating

to factors (1) and (4), which the court determined were even.

      1. Which party is more likely to encourage and permit frequent
      and continuing contact between the Child and another party?
      Both parties indicate that they are willing and able to do this. We
      find this factor is even.

                                     . . .


      4. The need for stability and continuity in the Child’s education,
      family life and community life. (Stability re: Significant others,

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      meretricious relationships.) Stability includes physical aspects of
      the residences of the parties and ability of the parties to financially
      provide for the Child. The Child is almost 11 years old. Her
      stability with regard to education is already questionable. She
      was going to school in Southern Lehigh based upon the lie of
      Paternal Grandmother and Mother when they signed a document
      telling the School District that the Child lived with the Paternal
      Grandmother in Southern Lehigh when she did not. It appears
      that Father knew this because he allowed it [to] continue. One of
      his arguments is that Mother did not give him a chance to register
      the Child with his home in Southern Lehigh. If the Child were not
      living primarily with him, this would still be a lie. The Child’s
      education is already disturbed; she has already moved to Parkland
      because that is where Mother lives. If we awarded primary
      custody to Father, she would go back to Southern Lehigh; yet
      another change. As to the stability and continuity of the Child’s
      family life, that does not seem to change very much whether she
      lives with Mother or Father. As to her community life, there is no
      particular evidence of community involvement. Both homes
      appear to be sufficient. Both parties appear to be financially able
      to support the Child. So, on balance, this factor appears to be
      even.

Id.

      Now we turn to the first six issues raised by Father in his brief, wherein

he sets forth his disagreement with the trial court’s conclusions as to those

factors that either favor Mother or that he claims should have favored him

rather than being considered equal. Father contends with regard to factor (1)

that the court did not adequately analyze this factor.        Specifically, Father

identifies his testimony in which he claimed that Mother initially agreed to

several of Father’s requests for additional time for Child to visit various

members of his family, but that Mother reneged when that time arrived.

Father also points to testimony in which he claimed that he received little or

no information about Child’s medical and dental health or about Child’s



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schooling. He also asserts that although Child and Paternal Grandmother had

a close relationship, Mother curtailed those visits following his discharge from

the army. Father indicates that Mother did not rebut most of his testimony

but acknowledged that he had agreed that Mother could take Child to

Columbia in the summer of 2016 to visit Mother’s family. Essentially, Father

contends that the court ignored this testimony, finding this factor to be even,

and as a result abused its discretion.

      As for factor (2) relating to the Alaska incident in 2010 or 2011, Father

contends that no additional incidents occurred, that the parties agreed to

periods of expanded custody for Father, and that Mother testified that she had

no concerns about Father.     Additionally, to support this argument, Father

relies on Michael T.L. v. Marilyn J.L., 525 A.2d 414, 418 (Pa. Super. 1987),

wherein this Court stated “[c]ustody cannot reasonably be granted on the

basis of a parent’s unsettled past unless the past behavior has an on-going

negative effect on the child’s welfare…. Moreover, the ability to care for the

child is to be determined as of the time of the custody hearing.” Accordingly,

Father asserts that this factor should not have favored Mother in that the

incident occurred seven or eight years ago and Child was not even present.

      Regarding factor (3), Father takes issue with the trial court’s

determination that Mother has always been the primary caretaker of Child.

Rather, he contends that Child spent a considerable amount of time with

Paternal Grandmother and had a close relationship with her. Furthermore,

Father relies on this Court’s recognition that no additional consideration should

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be placed on which parent has been the primary caregiver. See M.J.M., 63

A.3d at 330.

      As for factor (4), the court explained Child’s change in her school

attendance at two different school districts. Father claims he was unaware of

this change until after the fact and that it was not in Child’s best interest to

have been moved in the middle of the school year. Thus, Father asserts that

Mother’s actions showed her lack of a willingness to co-parent with Father.

      Next, Father’s argument relating to Factor (7) centers on Child’s

testimony about her desire to spend time with each parent. Father argues

that the court did not afford significant weight to Child’s testimony and failed

to recognize that Child’s testimony repeated much of what Mother stated.

Again, Father claims that the court did not give proper weight to Child’s

testimony even after the judge suggested a shared custody arrangement,

which Child appeared to favor.

      Concerning factor (10), Father takes issue with the court’s reliance on

the fact that Child is a girl approaching the age of puberty and would more

likely benefit from living primarily with Mother. He contends that Child has a

good relationship with his current wife and Paternal Grandmother, both of

whom could aid Child in dealing with this issue.

      Essentially, Father’s arguments center on his contention that many of

the factors in section 5328(a) favor him, which is contrary to the trial court’s

conclusions. In addressing the various factors, Father cites evidence that is

most favorable to him. However, based upon our review of the record, we

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conclude that the trial court considered all relevant factors. We also note that

its findings are supported by the record. Father is basically requesting that

we reject the trial court’s findings and credibility determinations and accept

the findings that he proposes. We cannot do so. Rather, as we stated above,

      [w]e 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.

J.R.M., 33 A.3d at 650. Moreover, we recognize that this must have been a

difficult decision for the trial court in that both parents love their Child and

wish to provide Child with a good life. As this Court has stated, “the test is

whether the trial court’s conclusions are unreasonable as shown by the

evidence of record.” E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting

A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010)). Because we do not

determine that the trial court’s conclusions are unreasonable in light of the

sustainable facts, we are compelled to affirm the trial court’s decision as to

Father’s first six issues.

      In his final issue, Father contends that the trial court abused its

discretion in finding him in contempt. As with its discussion of the various

custody factors, the court also announced its decision pertinent to both

Father’s and Mother’s petitions for contempt of the May 18, 2018 order. The

court stated:




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      We will first address the Petition For Contempt Of The Order Of
      Court Entered On May 18, 2018 filed by Mother on August 15,
      2018. Mother asserts that, “Father failed to return the [C]hild to
      Mother at 2:00 p.m. as per Paragraph 5(b) and (c) of the May 18,
      2018 Order and instead maintained custody of the [C]hild until
      the following day.” The evidence shows that this is true. Although
      Father suggested that there was a valid reason related to some
      activity, he did not adequately prove a valid reason for failing to
      return the Child to Mother on time. Therefore, he is found to be
      in contempt of the May 18, 2018 Order and is directed to pay a
      fine of Five Hundred Dollars ($500.00) within thirty (30) days of
      the date of this Order.

      We will next address the Petition For Contempt Of The Order
      Dated May 18, 2018 [f]iled [by Father] on January 10, 2019. This
      petition asserts that “Mother unilaterally, and without notice,
      removed the [C]hild from the Southern Lehigh School District and
      enrolled the [C]hild in the Parkland Area School District on
      November 15, 2018.” The evidence unequivocally shows that
      Mother did this and, therefore, this petition is granted. Mother is
      found to be in contempt of the May 18, 2018 Order and shall pay
      a fine of Five Hundred Dollars ($500.00) within thirty (30) days of
      the date of this Order.

N.T. Trial, 4/1/19, at 1-2 (attached to the April 8, 2019 trial court order).

      To address this issue, we are guided by the following standard of review:

              This court’s review of a civil contempt order is limited to a
      determination of whether the trial court abused its discretion. If
      a trial court, in reaching its conclusion, overrides or misapplies the
      law or exercises judgment which is manifestly unreasonable, or
      reaches a conclusion that is the result of partiality, prejudice, bias
      or ill will as shown by the evidence of record, then discretion is
      abused.

             In order to establish that a party is in civil contempt, there
      must be proof by a preponderance of the evidence that the
      contemnor had notice of the specific order that he or she is alleged
      to have disobeyed, that the act that constituted the contemnor’s
      violation was volitional, and that the contemnor acted with
      wrongful intent.




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Thompson v. Thompson, 187 A.3d 259, 263 (Pa. Super. 2018) (quoting

Cunningham v. Cunningham, 182 A.3d 464, 470-71 (Pa. Super. 2018)).

      Father sets forth his explanation of the facts, contending that there was

a misunderstanding as to which parent would be picking up Child from an

activity and at what time this would occur. Father states that he attempted

to return Child to Mother’s residence several times, but Mother was not home.

Father also indicates that he attempted to contact Mother on several

occasions, but that she did not answer her cell phone. Thus, Father argues

that he should not be held in willful non-compliance of the order due to

Mother’s unavailability. Again, Father is arguing facts; he does not show how

the court abused its discretion. He simply argues that the court’s credibility

determinations were incorrect. As with his earlier arguments directed to our

review of the custody factors, Father is requesting that this Court make

independent findings rather than accept the trial court’s findings that are

supported by competent evidence in the record. Our scope of review prohibits

this. Thus, we affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/19

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