J-S25030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.W.                                               IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

M.S.

                            Appellee                   No. 1810 WDA 2015


                     Appeal from the Order November 4, 2015
                In the Court of Common Pleas of Crawford County
                      Civil Division at No(s): F.D. 2014-198 V


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                  FILED MAY 06, 2016

        Appellant, R.W. (Mother), appeals from the November 4, 2015 order

granting Appellee, M.S. (Father), primary physical custody of their minor

son, X.S. After careful review, we affirm.

        The relevant factual and procedural history, as gleaned from the

certified record, is as follows.       X.S. was born in August 2010.    While the

details are not clear from the record, Mother and X.S. previously resided in

Mississippi.    In July 2013, Mother relocated with X.S. to Crawford County,

Pennsylvania. Mother currently resides in Crawford County with her parents,

her fiancé, A.F, and her daughter, P.W., who is the child of A.F. 1        Father

resides in Alabama with his wife, S.S., their daughter, and Father’s
____________________________________________


1
    Mother also has a third child, who resides in Mississippi with her father.
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stepdaughter. Father also has partial physical custody of his daughter from

a previous marriage.

       On May 30, 2014, Mother filed a petition for modification of custody in

Crawford County.2 The trial court entered an order on December 9, 2014,

awarding Mother primary physical custody of X.S., and awarding Father

partial physical custody during the summer.        Both parents were awarded

shared legal custody.        On April 22, 2015, Mother, acting pro se, filed a

petition to modify the December 9, 2014 order. A custody mediation took

place on May 22, 2015, and, on May 29, 2015, an order was entered which

reduced Father’s partial physical custody of X.S. during the summer of 2015.

Mother filed a third petition for modification of custody on July 9, 2015,

which resulted in an additional custody mediation on July 30, 2015.          On

August 3, 2015, the trial court entered an order which slightly extended

Father’s partial physical custody during that summer. On August 18, 2015,

Father, also acting pro se, filed a request for a de novo custody hearing.

       A de novo custody hearing took place on October 21, 2015, during

which Mother was represented by counsel, and Father remained pro se.

During the hearing, the trial court heard the testimony of Mother; Father’s

wife, S.S.; Father; the maternal grandmother of X.S., E.W.; the maternal
____________________________________________


2
  Mother averred in her petition that a custody order had previously been
entered on March 27, 2014, in the Chancery Court of Itawamba County,
Mississippi, pursuant to which Mother was awarded primary physical custody
of X.S. See Petition to Modify Custody, 5/30/2014, at ¶ 4, Exhibit 1.



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grandfather of X.S., R.W.; and Mother’s fiancé, A.F. On November 4, 2015,

the trial court entered the subject custody order awarding primary physical

custody of X.S. to Father, and awarding Mother partial physical custody

during the summer.            The trial court awarded the parents shared legal

custody. On November 13, 2015, Mother timely filed a notice of appeal and

concise    statement     of    errors   complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).3

       On appeal, Mother raises the following issue for our review.

              Did the [trial c]ourt err in awarding primary custody
              of the parties’ minor child to [Father] and only
              visitation to [Mother], based on a review of the
              custody factors and the determination of the best
              interest of the child?

Mother’s Brief at 16.

       We consider this issue mindful of our well-settled standard of review.

              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
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3
   That same day, Mother filed a motion to suspend the trial court’s
November 4, 2015 order pending this appeal, which was denied by the trial
court the same day. Further, on November 16, 2015, the trial court adopted
its November 4, 2015 opinion for purposes of Rule 1925(a).



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           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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

     “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a).

           § 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.


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              (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.A. § 5328(a).

      Instantly, the trial court issued a thorough opinion, discussing each of

the Section 5328(a) factors, and explaining its decision to award primary

physical custody of X.S. to Father.    Trial Court Opinion, 11/4/15, at 2-6.

The trial court found that Sections 5328(a)(2), (2.1), (4), (5), (7), (8), (12),

and (14) did not weigh in favor of either parent. Id. at 3-5. The trial court

concluded that Sections 5328(a)(1), (6), (9), (10), (11), (13), (15), and

(16) weighed in favor of Father, and that Section 5328(a)(3) weighed in

favor of Mother. Id. at 2-5. Further, the trial court emphasized that Mother

has done everything in her power to make it difficult for Father to spend

time with X.S.   Id. at 2, 4-5.    The trial court acknowledged that Mother

testified during the custody hearing that she would try to be more

cooperative in the future, but it rejected this testimony as incredible. Id. at

3.   The trial court also explained that it believed Father would be able to

provide a more loving and stable environment for X.S. because Father

“appears to be more level[-]headed and truthful” than Mother, and because

Father’s wife can assist him in caring for X.S. Id. at 4-5.

      In response, Mother discusses the trial court’s analysis with respect to

the Section 5328(a) factors, and offers her own interpretation as to how the

trial court should have evaluated the evidence presented during the custody

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hearing. The crux of Mother’s argument appears to be that it was improper

to award primary physical custody to Father because X.S. has spent the

majority of his life residing with Mother, and because Mother is not

employed and has more time than Father to care for X.S. Mother’s Brief at

18, 22-25.     Mother insists that she did not maliciously attempt to prevent

Father from exercising partial physical custody of X.S.      Id. at 21-22, 25.

Mother also asserts that there was little evidence presented during the

hearing which indicated that Father’s home in Alabama is an appropriate

place for X.S., and that there was no evidence indicating that intellectual

limitations would prevent anyone in Mother’s home from caring for X.S. Id.

at 21-26.     Mother suggests that the trial court awarded primary physical

custody to Father because the trial court wanted to punish Mother, and that

the trial court acted harshly by making this award when there were less

“punitive” measures available.4 Id. at 22, 27.

       After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion or commit an error of law. During

the custody hearing, Father testified concerning Mother’s refusal to
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4
  Mother also states in her brief that the trial court’s analysis of the Section
5328(a) factors “seems to hearken back to the previous orders that had
been rendered in this case. This would be error, based on cases such as
M.E.V. v. F.P.W., 100 A.3d 670, [(Pa. Super. 2014)], which require a
contemporaneous review of the circumstances.” Mother’s Brief at 20-21.
We find no support for this claim, as our review of the trial court’s opinion
makes clear that the trial court based its decision on the circumstances as
they existed at the time it entered the subject custody order.



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cooperate with Father and Mother’s efforts at preventing Father from having

any sort of relationship with X.S. Most notably, Father described an incident

that took place during the previous summer, when Father drove from

Alabama to Pennsylvania to pick up X.S. for his court-ordered period of

partial physical custody. Father explained that he and his wife, S.S., were

driving through Kentucky when Mother sent a text message stating that she

would not permit Father to have custody of X.S., due to X.S. having medical

appointments. N.T., 10/21/15, at 27. Mother stated that Father and S.S.

could visit X.S. at Mother’s home, but that they could not leave with X.S.

Id. After arriving at Mother’s home, Father asked Mother if he could take

X.S. to KFC for mashed potatoes, and then to Walmart to purchase a

birthday present. Id. at 28. Father told Mother that he would bring X.S.

back to Mother’s home afterward, and Mother consented to this plan.      Id.

Instead, Father and S.S. drove back to Alabama with X.S. Id.

     During her direct examination, Mother denied sending Father a text

message stating that he would not be permitted to exercise his period of

partial physical custody. Id. at 50. Mother stated, “I didn’t say I was going

to cancel [the period of partial physical custody]. I asked him if he wanted

to work with me around his appointment time, like, if I can get him today for

his appointment, or if I have to cancel his appointment.”       Id.   Mother

insisted that she intended to allow Father to take X.S. that day. Id. at 51.

Mother testified that Father told her he would bring X.S. back to her home


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after taking him to KFC and Walmart.          Id.   Instead, Father departed for

Alabama without taking any of the clothing that Mother had packed for X.S.,

or his medications. Id. at 51-52.

         On   cross-examination,    Father   confronted   Mother   with   the   text

message in question.         According to Father, the message contained the

following content.

               [T]hey told me at the courthouse I do not have to
               give him to you and that you can take me for
               contempt of court, but as long as I have proof that
               he had to be in Wexford in two weeks, the Judge will
               not do anything…. I talked to the courthouse
               themselves. I cannot afford them hospitals out of
               state and his insurance does not cover down there,
               so he cannot go with you because he has to be in
               Wexford in two weeks. I am sorry, [Father]. You
               can come visit him while you’re up here, but you’re
               not taking him. He is staying here. I am taking it
               back to court.

Id. at 54-55. Mother admitted that she sent the text message as described

by Father. Id. at 55. However, Mother continued to claim that she did not

refuse to allow Father to exercise his period of partial physical custody. Id.

at 57.

         Additionally,   Father   cross-examined    Mother   concerning    alleged

criminal activity. Father asked Mother if she had any recent “run-ins” with

the police, and Mother denied that this was the case.         Id. at 11.    Father

attempted to impeach Mother using a copy of a police report, but the trial

court sustained the objection of Mother’s counsel, reasoning that the report

was hearsay. Id. at 11-12. Later, the trial court asked Mother if she had

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been convicted of any crimes, and Mother replied that she had. Id. at 71.

When asked what crime she was convicted of, Mother replied, “I was

supposed to throw a pot at [A.F.] and hit him in the face.” Id. at 72. Upon

further questioning by the trial court, Mother stated that she believed she

was convicted of simple assault.5 Id.

       Thus, the record supports the trial court’s decision to award primary

physical custody to Father. While it is true that Mother has cared for X.S. for

the majority of his life, and that Mother has more time to care for X.S.

because she is unemployed, it was reasonable for the trial court to conclude

that these considerations were outweighed by other evidence presented

during the custody hearing.         Awarding primary physical custody of X.S. to

Father will allow X.S. to establish a relationship with Father, while also

allowing X.S. to maintain his existing relationship with Mother. In contrast,

allowing Mother to maintain primary physical custody of X.S. would be

potentially disastrous, as Mother has demonstrated that she is unwilling to

permit a healthy relationship between X.S. and Father.

       In reaching this conclusion, the trial court emphasized the following.

              [W]e note that when the Order was entered on
              December 8, 2014 we found that [M]other was not
              particularly cooperative in providing [F]ather with
              custodial time with [X.S.] At that time it was a very
              close call as to who should have primary physical
____________________________________________


5
  A.F. testified that Mother was mistaken, and that she actually pled guilty to
disorderly conduct. N.T., 10/21/15, at 94.



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            custody of [X.S.] and we granted [M]other primary
            physical custody, mainly because [X.S.] had been
            with her during his lifetime leading up to that
            hearing.

                   It is obvious from the many aspects of the
            [October 21, 2014] testimony at [the] De Novo
            hearing that [M]other has continued to make it
            difficult for [F]ather to have custody with [X.S.] and
            to communicate with [X.S.] and we did not find
            [M]other’s testimony to be particularly credible.

Trial Court Opinion, 11/4/15, at 2.

      In light of the foregoing reasoning, as well as the trial court’s

discussion of the custody factors, it is abundantly clear why the trial court

concluded that Father will be able to provide a more loving and stable

environment for X.S.    Mother’s testimony during the custody hearing was

confusing and inconsistent, which supports the trial court’s determination

that Father is “more level[-]headed and truthful” than Mother, and Mother’s

relationship with A.F. appears to be unstable and possibly violent given her

recent criminal conviction.    While Mother contends that the trial court

awarded primary physical custody to Father because the court wanted to

punish Mother, our review of the record belies this assertion, and confirms

that the court based its decision on the best interests of X.S.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion or commit an error of law. Accordingly, we affirm the trial court’s

November 4, 2015 order.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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