J-A10031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.T.H.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                    Appellee

                         v.

H.H., n/k/a H.W.,

                    Appellant                  No. 1960 MDA 2014


               Appeal from the Order entered July 28, 2014,
            in the Court of Common Pleas of Lancaster County,
                    Civil Division, at No(s): CI-13-06575

BEFORE: GANTMAN, P.J., MUNDY, and JENKINS, JJ.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 19, 2015

      H.H., n/k/a H.W. (“Mother”), appeals from the custody order dated

July 25, 2014, and entered on July 28, 2014, that awarded J.T.H. (“Father”)

and Mother shared legal and physical custody of their minor male child,

M.E.H., (born in July of 2001), and their minor female child, C.M.H., (born in

December of 2004) (collectively, “the Children”). Upon careful review, we

remand.

      We summarize the factual and procedural history of this case as

follows. Mother and Father are the natural parents of the Children. Mother

and Father divorced in 2011.      Mother is currently married to J.W., the

Children’s stepfather (“Stepfather”), with whom she recently had a son, S.W.

(“Half-Brother”), in April of 2014.   Mother lives in a six-bedroom house in

Strasburg, Pennsylvania, with the Children, Stepfather, Half-Brother, the
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Children’s paternal uncle, and the Children’s maternal grandmother. Prior to

giving birth to Half-Brother, Mother worked as a server at Red Lobster, but is

now a stay at home caretaker.

      Father is currently married to F.H., the Children’s stepmother

(“Stepmother”).   Father lives in a three-bedroom townhouse in Lancaster,

Pennsylvania, with the Children, Stepmother, and Stepmother’s children.

Father works as a certified nurse’s aide from 3:00 p.m. to 11:00 p.m. with a

two-week rotating work schedule. Based on his work schedule, Father is off

on Sunday, works Monday through Thursday, is off on Friday, works

Saturday through Monday, is off on Tuesday, works Wednesday through

Friday, and is off on Saturday.

      On June 28, 2013, Father filed an initial pro se complaint in custody,

seeking primary physical custody of the Children.      Thereafter, the parties

submitted their criminal history affidavits. Mother indicated that Stepfather

committed an enumerated offense. Consequently, the trial court conducted

a risk of harm hearing on August 5, 2013. After the risk of harm hearing,

the trial court found Stepfather was not a risk of harm to the Children.

      The matter proceeded to trial because the parties could not reach an

agreement on the issue of custody at the custody conciliation conference

held on August 28, 2013.     Prior to trial, the custody conciliator entered a

temporary custody order on September 10, 2013, granting primary physical

custody to Mother and partial physical custody to Father.      The trial court


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held a custody hearing on October 21, 2013.      On November 7, 2013, the

trial court entered a final custody order, awarding both parties shared legal

and physical custody of the Children on a two-week rotating basis in order to

accommodate Father’s work schedule so he could maximize his custodial

time with the Children on the days he has off.   The two-week rotating basis

was as follows:

     Week One- Monday from after school to Thursday at 5:00 p.m.
         with Mother;
          Thursday at 5:00 p.m. to Friday at 8:00 p.m. with Father;
          Friday at 8:00 p.m. to Monday at 5:00 p.m. with Mother.

     Week Two- Monday at 5:00 p.m. to Wednesday before school
         with Father;
          Wednesday after school to Friday at 5:00 p.m. with
          Mother;
          Friday at 5:00 p.m. to Monday before school with Father.

Trial Court Opinion, 11/7/13, at 6. The trial court ordered “Week One” to

begin on Monday, November 11, 2013.

     On April 11, 2014, Mother filed a petition to modify custody, seeking

primary physical custody. On June 3, 2014, the parties attended a custody

conciliation conference with the Children.   On June 17, 2014, the custody

conciliator issued a temporary custody order, granting primary physical

custody to Mother and partial physical custody to Father on a similar,

simplified two-week rotating basis.

     On July 11, 2014, Father appeared pro se and Mother appeared with

counsel at a custody hearing. At the custody hearing, the trial court heard

the testimony of the Children, Father, Mother, the Children’s maternal uncle,

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and the Children’s maternal aunt.      By opinion and order entered July 28,

2014, the trial court awarded the parties shared legal and physical custody

of the Children, on a two-week rotating basis and ordered co-parent

counseling.    The trial court ordered the two-week rotating basis to give

Father custody of the Children on his days off during his two-week schedule

as follows:

        Week One- Father shall have custody of the Children from after
        school on the Tuesday he has off from work until Monday after
        school.

        Week Two- Mother shall have custody of the Children from after
        school on Monday until the Tuesday of Week One after school.

Trial Court Opinion, 7/28/15, at 8.1

        On August 28, 2014, Mother filed a notice of appeal, which this Court

quashed as untimely filed on October 9, 2014. On October 20, 2014, Mother

filed a petition to appeal nunc pro tunc from the custody order of July 28,

2014.     The trial court entered an order on November 13, 2014, granting

Mother’s petition to appeal nunc pro tunc. On November 19, 2014, Mother

filed a notice of appeal nunc pro tunc, along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

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

        1. Did the [t]rial [c]ourt err in that it did not give adequate
        consideration to the well-reasoned preference of the [C]hildren
        to maintain Father’s every other weekend custody schedule?

1
   The trial court’s order and opinion specified further custody details
including custody start times and holiday and vacation schedules, which we
need not reproduce here.
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      2. Did the [t]rial [c]ourt err in its determination that a shared
      custody schedule is appropriate where Father is not available for
      three of the six days during his period of custody and Mother is
      not working?

      3. Did the [t]rial [c]ourt err in its determination that a shared
      custody schedule is appropriate when Father does not encourage
      and permit [ ] continued contact between the [C]hildren and
      Mother during his periods of custody?

      4. Did the [t]rial [c]ourt err in that it did not give adequate
      consideration to the strong relationship that the [C]hildren share
      with [Half-Brother] in Mother’s home?

      5. Did the [t]rial [c]ourt err in its determination that a shared
      custody schedule was appropriate when Father is not flexible
      with Mother when it comes to issues of co-parenting?

Mother’s Brief at 14.


      Since the hearing in this matter took place in July 2014, the Child

Custody Act (“Act”), 23 Pa.C.S. §§ 5321 to 5340, is applicable.       C.R.F. v.

S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (the Act applies to custody

evidentiary proceedings which commence on or after the effective date of

the Act, January 24, 2011).

      In custody modification cases, our standard of review is as follows:

      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,
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      or are unreasonable in light of the sustainable findings of the
      trial court.

Id. at 443 (citation omitted).

      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).

      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

            Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating
      the court’s order. An abuse of discretion is not merely an error
      of judgment, but if the court’s judgment is manifestly
      unreasonable as shown by the evidence of record, discretion is
      abused. An abuse of discretion is also made out where it
      appears from a review of the record that there is no evidence to
      support the court’s findings or that there is a capricious disbelief
      of evidence.

Id. at 18-19 (quotation and citations omitted).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.

      Section 5323 provides for the following types of awards:

      (a) Types of award.—After considering the factors set forth in
      section 5328 (relating to factors to consider when awarding


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      custody), the court may award any of the following types of
      custody if it in the best interest of the child:

          (1) Shared physical custody.

          (2) Primary physical custody.

          (3) Partial physical custody.

          (4) Sole physical custody.

          (5) Supervised physical custody.

          (6) Shared legal custody.

          (7) Sole legal custody.

23 Pa.C.S. § 5323.

      Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338.    Section 5328(a) of the Act sets forth the sixteen best interest

factors that the trial court must consider. See 23 Pa.C.S. § 5328(a); see

also E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).2

      Mother filed a petition to modify, seeking a determination of primary

physical custody where the parties previously had exercised shared physical

custody. In its opinion that accompanied its order, the trial court stated, “In

consideration of the relevant factors set forth in 23 Pa.C.S. § 5328(a) as

they relate to the Children’s best interests in this case, the Court finds. . . .”


2
  We note that, effective January 1, 2014, the legislature amended the Act
to include an additional factor that provided for consideration of child abuse
and involvement with child protective services.          See 23 Pa.C.S. §
5328(a)(2.1).
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See Trial Court Opinion, 7/28/14, at 5.     The trial court then listed eight

matters that it considered, without indicating the specific factor of section

5328(a) to which each paragraph related. In its order entered on July 28,

2014, the trial court awarded shared legal custody and shared physical

custody on a two-week rotating basis.

     Mother’s challenges on appeal relate to whether the trial court

committed an abuse of its discretion in continuing shared physical custody

instead of granting the modification petition to award her primary physical

custody. See Mother’s Brief, at 17. In her first and second issues, Mother

contends that the trial court inadequately considered section 5328(a)(7) and

section 5328(a)(12) in its opinion. See id. at 18-22. In her third, fourth,

and fifth issues, Mother complains that the trial court failed to address

sections 5328(a)(1), (6), and (13), respectively. See id. at 23-29.

     In S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014), a father filed a

petition for specific relief requesting the trial court to ratify an informal

change to the custody schedule that the parties were following. This Court

reasoned that the father requested a modification of physical custody. The

panel stated:

     This compelled the trial court to decide which physical custody
     arrangement was in Child’s best interest, squarely implicating an
     award of a form of custody under 23 Pa.C.S.[] § 5323(a).
     Therefore, the trial court was required to consider all the
     § 5328(a) best interest factors. Even if the trial court only
     reaffirmed its prior order, it nonetheless was ruling upon a
     request to change the form of physical custody and, therefore,


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      bound to decide whether the prior order remained in Child’s best
      interest.

S.W.D., 96 A.3d at 406.        The panel vacated the portion of the order

concerning the change to physical custody, and remanded the matter for

preparation of an opinion and order specifically addressing all of the factors

under 23 Pa.C.S. § 5328(a) on the issue of physical custody.        S.W.D., 96

A.3d at 407.

      Moreover, in A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court

addressed a situation in which the trial court entered an order granting the

mother’s petition to relocate with the parties’ children, but failed to address

the section 5328(a) factors in modifying the prior physical custody

agreement. The trial court did not file an opinion in support of its order or

explain the basis for its decision. In reviewing an appeal filed by the father,

this Court stated:

            When deciding a petition to modify custody, a court must
      conduct a thorough analysis of the best interests of the child
      based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
      A.3d 73, 80 (Pa. Super. 2011). “All 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). . . . The record
      must be clear that the trial court considered all the factors.
      [E.D., supra at 81.]

            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.[] § 5323(d). Additionally,
      “section 5323(d) requires the trial court to set forth its
      mandatory assessment of the sixteen [Section 5328(a) custody]
      factors prior to the deadline by which a litigant must file a notice


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     of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
     appeal denied, ___ Pa. ___, 70 A.3d 808 (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, ___ Pa. ___, 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.

     The panel in A.V. further explained the need to discuss all of the

section 5328(a) factors where a party requests a modification of physical

custody from shared to primary, as follows:

            We note this Court’s recent opinion in M.O. v. J.T.R., 85
     A.3d 1058 (Pa. Super. 2014) (holding trial court need not
     address Section 5328(a) custody factors in modifying custody
     order, so long as modification does not affect type of custody
     award; alteration to terms and conditions of custody order is not
     “modification” of type of custody award; concluding Section 5328
     and Section 5323 did not apply). But see E.D., supra at 80
     (stating: “[W]hen a party files a petition for modification of a
     custody order, the trial court must perform a ‘best interests of
     the child’ analysis considering all of the section 5328(a)
     factors”). Compare M.O., supra (limiting Section 5323 only to
     orders awarding or modifying type of custody award) with 23
     Pa.C.S.[] § 5323(c), (f), (g), and (h), (regulating entire scope of
     custody orders, including requiring elaboration of any terms and
     conditions of award, and providing for contempt with respect to
     any custody order). Nevertheless, the instant case involves a
     direct modification of the “type” of custody, from shared physical
     to partial physical custody, and substantially reduced Father's
     time with Children.

A.V., 87 A.3d at 824 n.4.    The panel in A.V. found that the trial court’s

opinion was a wholesale adoption of the mother’s post-trial brief, with minor


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changes.   The panel ruled that the trial court’s failure to articulate the

court’s independent reasoning with an analysis deprived this Court of the

ability to conduct appellate review.   Thus, the panel remanded the matter

for further proceedings. A.V., 87 A.3d at 825.

      We find that the trial court has failed to comply with section 5323(d),

as it has included an incomplete analysis of the section 5328(a) factors in its

opinion. We cannot conduct our appellate review. Accordingly, we remand

the matter for the trial court to address each of the section 5328(a) factors

in its opinion to demonstrate that it fully considered the best interests of the

Children, consistent with section 5323(d).

      Case remanded with instructions. Panel jurisdiction retained.




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