J-A04044-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

K.W., N/K/A, K.S.,                           :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                    Appellee                 :
                                             :
                       v.                    :
                                             :
J.J.W.,                                      :
                                             :
                    Appellant                :     No. 1459 WDA 2014

                 Appeal from the Order Entered August 12, 2014,
                 in the Court of Common Pleas of Greene County,
                    Civil Division, at No(s): A.D. No. 385, 2004

BEFORE:        BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED MAY 06, 2015

      J.J.W. (Father) appeals from the order entered August 12, 2014,

which, inter alia, reduced Father’s partial physical custody of his minor sons.

Father also challenges the trial court’s July 31, 2014 order which sealed the

record of the children’s interviews with the trial court and prohibited both

parties’ counsel from any discussion of the interviews.         Upon review, we

affirm.

      The trial court summarized the underlying facts of this case as follows:

               This action involves twin boys, R.J. and T., born [in March
          of] 2004. The parents are K.L.S., [formerly K.L.W., (Mother)]
          and … Father, who were married at the time of the boys’ birth,
          but separated shortly thereafter. [The trial court] last discussed
          this case at length in June of 2012. At that time [the trial
          court] continued the pattern that was first established in July of
          2008, providing that the parties had joint legal custody and that
          primary physical custody would be with Mother. Father would
          have in-custody visits from the first to the sixth day of each


*Retired Senior Judge assigned to the Superior Court.
J-A04044-15


       month and from the fifteenth to the twenty-first day of each
       month. When this regime was initiated Mother lived in the
       Jefferson Morgan School District and Father lived in the Central
       Greene School District.     When the boys started school,
       transportation was not much of a problem. At some point,
       Father began working in Wheeling, West Virginia and in 2011,
       moved to Valley Grove, West Virginia, a few miles west of the
       Pennsylvania line, near interstate 70. The custody schedule
       continued with someone, usually the paternal grandmother, []
       driving the boys to and from school in Jefferson, Greene
       County. The trip takes about 50 minutes one way.

            In 2010, Father petitioned for modification, but this
       request was later withdrawn. In September of 2011, Mother
       requested modification. Her request came to be heard by [a]
       Child Custody Hearing Officer and on November 3, 2011, [the
       Child Custody Hearing Officer] recommended that the existing
       custody order remain unchanged. Mother requested a hearing
       de novo. After several continuances [the trial court] heard the
       evidence and on June 25, 2012, [the trial court] issued
       essentially the same order. In March of 2014, Mother again
       requested modification. On May 7, 2014, the Hearing Officer
       denied the request, leaving in place the June 2012 order.
       Mother again requested a hearing de novo and [the trial court]
       heard the matter on July 31 and August 1, 2014. [The children
       were interviewed in chambers during the course of the hearing.]

Trial Court Opinion, 8/12/2014, at 1-2.

      The trial court issued the order regarding the children’s interviews on

July 31, 2014, and the custody order on August 12, 2014.           Father then

timely filed the instant appeal.

      Father sets forth several issues for our review, which can be reduced

to the following: whether the trial court erred and abused its discretion in

(1) sealing the record of the children’s interviews and prohibiting the parties’

counsel from any discussion of the interviews, and (2) reducing the




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J-A04044-15


children’s overnight visits with Father from eleven per month to six per

month.

      Father first argues that, in entering the July 31, 2014 order, “the

[t]rial [c]ourt denied Father a due process right to be aware of and

appreciate all testimony and evidence offered against him.”       Father’s Brief

at 20. Father further argues that the order restricted the ability of counsel

to inform and consult with Father regarding the proceedings in contravention

of Pennsylvania Rule of Professional Conduct 1.4 and, because Father could

not be made aware of the children’s testimony, Father was not afforded the

opportunity to offer evidence in response to it.1

      Upon review, we discern no reversible error with respect to the trial

court’s July 31, 2014 order.    Even assuming arguendo that the order was

improper, we note the following.

      When the court has come to a conclusion by the exercise of its
      discretion, the party complaining of it on appeal has a heavy
      burden; it is not sufficient to persuade the appellate court that it
      might have reached a different conclusion if, in the first place,

1
  The parties do not dispute that the trial court acted in accordance with
Pa.R.C.P. 1915.11(b), which governs the procedure a court is to use in
questioning children in custody actions:

      The court may interrogate a child, whether or not the subject of
      the action, in open court or in chambers. The interrogation shall
      be conducted in the presence of the attorneys and, if permitted
      by the court, the parties. The attorneys shall have the right to
      interrogate the child under the supervision of the court. The
      interrogation shall be part of the record.

Pa.R.C.P. 1915.11(b).


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J-A04044-15


      charged with the duty imposed on the court below; it is
      necessary to go further and show an abuse of the discretionary
      power. An abuse of discretion is not merely an error of
      judgment, but if in reaching a conclusion the law is overridden or
      misapplied,   or    the   judgment      exercised    is   manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will,
      as shown by the evidence or the record, discretion is abused.

Joselit v. Joselit, 544 A.2d 59, 61 (Pa. Super. 1988) (quotation marks

omitted) (quoting In re Garett’s Estate, 6 A.2d 858, 860 (Pa. 1939)).

      Here, the findings of the trial court concerning what the children stated

during their interviews were set forth in its opinion. Father fails to indicate

in his brief any specific evidence he would have submitted, in light of the

trial court’s findings, to rebut or support the children’s testimony had his

attorney been able to apprise him of it earlier. Accordingly, Father has not

persuaded us that the trial court’s order resulted in prejudice to him and that

he is entitled to relief on this basis.

      In his second issue, Father argues that the trial court erred and

abused its discretion in reducing the children’s overnight visits with Father

from eleven per month to six per month. We consider this issue mindful of

the following.

             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



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J-A04044-15


           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.

                                   ***

           [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.

            The primary concern in any custody case is the best
     interests of the child. The best-interests standard, decided on a
     case-by-case basis, considers all factors that legitimately have
     an effect upon the child’s physical, intellectual, moral, and
     spiritual wellbeing.

            We must accept the trial court’s findings that are
     supported by competent evidence of record, and we defer to the
     trial court on issues of credibility and weight of the evidence.
     Additionally,

           [t]he parties cannot dictate the amount of weight the
           trial court places on evidence. Rather, the
           paramount concern of the trial court is the best
           interest of the child. Appellate interference is
           unwarranted if the trial court’s consideration of the
           best interest of the child was careful and thorough,
           and we are unable to find any abuse of discretion.

R.L.P. v. R.F.M., __ A.3d __, 2015 WL 548639, *5 (Pa. Super. filed

February 11, 2015) (citations and quotation marks omitted).




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J-A04044-15


      Father argues that, as demonstrated by the evidence at the custody

trial, the children were thriving under the prior custody arrangement and

both parents exhibited a sufficient amount of cooperation such that a

reduction in Father’s custody was improper. Father also claims that the trial

court’s analysis of the factors in 23 Pa.C.S. § 5328(a) does not support a

reduction in Father’s custody of the children, as only one factor—the well-

reasoned preference of the children—appeared to weigh in favor of Mother.

In this regard, Father further maintains that the trial court placed too much

weight on the children’s preference, which was not in fact “well-reasoned,”

given that the trial court found their testimony not credible with respect to

the negative things they said about Father. Moreover, Father contends that

the trial court failed to find that Mother has discouraged a meaningful

relationship   between   the   children   and    Father,   despite   evidence

demonstrating that to be the case. Finally, Father argues that the trial court

improperly considered the children’s participation in horse shows with

Mother and a traffic violation committed by their paternal grandmother as

independent factors for reducing Father’s custody time.

      Upon analyzing the factors in section 5328(a), the trial court, who has

lived with this case since 2004, explained that a reduction in Father’s

custody was proper because the implementation of the existing schedule

was not working.    Trial Court Opinion, 8/12/2014, at 9.     The trial court

observed that the relationship between Father and the children continues to



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J-A04044-15


deteriorate and that the children want nothing to do with him. Id. at 9-10.

Moreover, the trial court explained that, although it did not find their

statements painting Father in a negative light to be credible, it was

significant that the children made the statements at all. Id. at 10. The trial

court further suggested that counseling was the only possible way to mend

the relationship between Father and the children.2 The trial court concluded

that it was time to reduce the contact between Father and the children, as

doing so would not harm their relationship, which could “hardly get worse,”

and it was in everyone’s best interest to reduce the time spent commuting.

Id. at 11.

      In light of the above analysis, we discern no abuse of discretion.

Moreover, Father’s arguments largely amount to a contention that the trial

court should have interpreted certain evidence in his favor or otherwise

challenge the weight the trial court attributed to the evidence and its

credibility determinations, which we may not disturb on appeal.3 See R.L.P.




2
  The trial court explained that the parents and children were in counseling
previously, “but that arrangement died away, apparently because of a lack
of interest by Father.” Trial Court Opinion, 8/12/2014, at 10.
3
   Further, we reject Father’s argument that the trial court improperly
considered the children’s participation in horse shows with Mother and a
traffic violation committed by their paternal grandmother as factors for
reducing Father’s custody time. The trial court included these considerations
in the context of its analysis of the factors enumerated in section 5328(a).
The trial court did not abuse its discretion in so doing.


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J-A04044-15


v. R.F.M., __ A.3d __, 2015 WL 548639, at *5.   Thus, Father is not entitled

to relief on this issue.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 5/6/2015




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