J-A04027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    G.M.I.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    A.M.I.                                     :
                                               :
                       Appellant               :   No. 1415 MDA 2017

                Appeal from the Order Entered August 14, 2017
      In the Court of Common Pleas of Huntingdon County Civil Division at
                             No(s): 2014-01474


BEFORE:      STABILE, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED APRIL 18, 2018

        Appellant A.M.I. (Mother) appeals from the final custody order, which

awarded G.M.I. (Father) primary physical custody and Mother partial physical

custody of the parties’ minor son, J.L.I., who was born in March of 2011

(Child). The trial court also awarded the parties shared legal custody. Mother

claims that she is entitled to relief because the trial court failed to (1) decide

her petition to modify custody promptly, (2) make required findings under 23

Pa.C.S. § 5328(a), and (3) consider adequately her evidence that she was

more proactive in scheduling Child’s medical appointments and that Father

interfered with her ability to parent Child. We affirm.

        The parties are the biological parents of Child. Mother and Father were

married, but separated in November 2014 after Father filed a complaint for

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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divorce. In his divorce complaint, Father included a request for custody. The

trial court scheduled a custody conference on December 15, 2014, after which

the court entered an interim custody order based upon the stipulations of the

parties. On March 2, 2015, the parties entered into a final custody agreement,

which the trial court adopted in a memorandum of understanding. On June

3, 2015, the parties modified their consent agreement, although the trial court

did not enter an updated order of court.

      On July 17, 2015, Father filed a petition to modify custody. The trial

court held a hearing on Father’s petition on September 29, 2015. On October

5, 2015, the trial court entered an order of court awarding the parties shared

legal custody of Child.   Father was awarded primary physical custody and

Mother partial physical custody.

      On June 20, 2016, Mother filed the instant petition to modify the October

5, 2015 custody arrangement. The parties appeared for a custody conference

on August 22, 2016, during which the trial court, after taking limited

testimony, granted Mother’s request that Child attend her choice of school in

the Huntingdon Area School District. A hearing on Mother’s petition to modify

custody was held on December 9, 2016, and March 28, 2017. At the hearing,

Mother testified on her own behalf. Father also testified on his own behalf and

also called Mother’s same-sex partner, S.S.

      On August 14, 2017, the trial court awarded Father primary physical

custody of Child and awarded Mother partial physical custody. The parties




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were ordered to share legal custody of Child. The agreement also detailed a

custody schedule for Child’s summer vacation and holidays.

       In its opinion accompanying the order, the trial court assessed each of

the factors enumerated in 23 Pa.C.S. § 5328(a). The court found that the

majority of the factors were either inapplicable to this case, or did not weigh

in favor of either parent.        Trial Ct. Op., 8/14/17, at 2-4 (unpaginated).

However, the court found that section 5328(a)(4), (5), (10) and (15) weighed

in favor of Father.         The court placed particular emphasis on section

5328(a)(4), finding that Father is more likely than Mother to provide Child

with stability. Specifically, the court concluded:

       Father has a stable job and has family support in the Huntingdon
       area. Mother’s housing situation at the current time is stable,
       however, there seems to be some question as to how she will
       financially be able to maintain her housing based on her lack of
       income. The [c]ourt also questions Mother’s stability considering
       her depression issues and the mental health issues of her partner.
       ...

Id. at 3.

       Mother filed a timely notice of appeal and concise statement of errors

complained of on appeal on September 12, 2017.1

       Mother raises the following issues for our review, which we have

reordered for this decision:

____________________________________________


1 Prior to filing her notice of appeal, Mother filed a motion for reconsideration,
requesting that the trial court reconsider the evidence presented at trial and
grant her shared legal and physical custody of Child. The trial court declined
to rule on Mother’s motion for reconsideration due to Mother filing her notice
of appeal. Trial Ct. Op., 9/26/17, at 2 n.1

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      1. Whether the [t]rial [c]ourt violated the Rules of Court by failing
         to adhere to Pa.R.[C.]P. 1915.4(c) and (d)[?]

      2. Did the [t]rial [c]ourt ma[k]e an error of law by failing to make
         a finding on the factor set forth by the custody statute 23
         Pa.[C.S.] § 5328[(a)](1)[?]

      3. Did the [t]rial [c]ourt abuse[ ] its discretion by failing to
         consider credible testimony and documentary evidence about
         [Father’s] behavior which is undermining and interfering with
         [Mother’s] parenting of the child[?]

Mother’s Brief at 11.

      In her first issue on appeal, Mother argues that the trial court erred by

failing to comply with the prompt disposition rules set forth in Pa.R.C.P.

1915.4(c) and (d). Mother notes that 420 days passed between the time she

filed her petition to modify custody and the trial court’s decision. Id. at 33.

She states that she “point[s] out this violation and do[es] so only because it

caused a detriment to Mother and [C]hild and does not comport with the intent

behind the creation of the rules.” Id. at 59.

      Mother’s issue involves a pure question of law. Therefore, “our standard

of review is de novo, and our scope of review is plenary.”           Harrell v.

Pecynski, 11 A.3d 1000, 1003 (Pa. Super. 2011) (citations omitted).

      Rule 1915.4, in relevant part, provides:

      Rule 1915.4. Prompt Disposition of Custody Cases

                                     ***

      (b) Listing Trials Before the Court. Depending upon the
      procedure in the judicial district, within 180 days of the filing of
      the complaint either the court shall automatically enter an order

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      scheduling a trial before a judge or a party shall file a praecipe,
      motion or request for trial, except as otherwise provided in this
      subdivision. If it is not the practice of the court to automatically
      schedule trials and neither party files a praecipe, motion or
      request for trial within 180 days of filing of the pleading, the court
      shall, sua sponte or on motion of a party, dismiss the matter
      unless a party has been granted an extension for good cause
      shown, or the court finds that dismissal is not in the best interests
      of the child. . . .

      (c) Trial. Trials before a judge shall commence within 90 days of
      the date the scheduling order is entered. Trials and hearings shall
      be scheduled to be heard on consecutive days whenever possible
      but, if not on consecutive days, then the trial or hearing shall be
      concluded not later than 45 days from commencement.

      (d) Prompt Decisions. The judge’s decision shall be entered and
      filed within 15 days of the date upon which the trial is concluded
      unless, within that time, the court extends the date for such
      decision by order entered of record showing good cause for the
      extension. In no event shall an extension delay the entry of the
      court’s decision more than 45 days after the conclusion of trial.

Pa.R.C.P. 1915.4(b)-(d) (emphasis added). The Explanatory Comment to Rule

1915.4 states:

      A new rule requiring prompt custody trials was recommended by
      a special committee established by the Pennsylvania Superior
      Court. That committee concluded that the interests of children
      who are the subjects of custody litigation would best be served by
      a requirement that the litigation be concluded within specific time
      frames.

Pa.R.C.P. 1915.4 cmt.

      Notably, Rule 1915.4(b) permits a court to dismiss a matter if it is not

listed for trial in a timely fashion.    See Pa.R.C.P. 1915.4(b).       However,

subdivisions (c) and (d) do not provide for the dismissal of a matter for failures

to commence trial or render a decision in a prompt manner. See Pa.R.C.P.

1915.4(c)-(d).


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      Instantly, Mother filed her petition to modify custody on June 20, 2016.

On June 21, 2016, the trial court ordered the parties to appear for a custody

conference on August 22, 2016. At the custody conference, the parties were

unable to reach an agreement as to custody.         Accordingly, on August 23,

2016, the trial court entered an order scheduling a hearing on Mother’s

petition for December 9, 2016. At the end of the hearing, it became apparent

that an additional day of testimony would be necessary. After noting that the

hearing would not resume until March 2017, the trial court stated on the

record, “[i]t is very unlikely that I would have changed custody during the

school year anyways. It is my policy that I don’t. So a hearing in March

[2017] really isn’t going to change anything.” N.T., 12/9/16, at 102.

      After the custody trial concluded on March 28, 2017, on May 12, 2017,

the trial court issued an order requesting that the parties file proposed findings

of fact and conclusions of law within thirty days. On May 18, 2017, counsel

for Father filed a motion for extension of time to file his memorandum. The

trial court granted Father’s motion and ordered that the findings of fact and

conclusions of law be filed by June 19, 2017. Thereafter, on August 14, 2017,

the trial court issued its order and opinion awarding Father primary physical

custody of Child.

      Although the trial court did not conduct trial or issue its decision

consistent with Rule 1915.4(c) and (d), dismissal of the matter was not

required. Mother failed to request a more timely trial date or decision and did

not object to the delays. Moreover, Mother did not assert any prejudice by

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the delay, nor does the record suggest that any occurred. Thus, it appears

Mother is only raising this issue now, after the trial court entered its final

custody order awarding Father primary physical custody and based on her

disagreement with the trial court’s rulings. As such, we discern no basis to

conclude that Mother is entitled to relief under Rule 1915.4(c) or (d).

Accordingly, Mother’s first issue fails.2

       Mother’s final two issues challenge the trial court’s findings under 23

Pa.C.S. § 5328(a).3

       Our scope and standard of review of a custody order are 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, or are unreasonable in
       light of the sustainable findings of the trial court.

____________________________________________


2 Although Mother’s issue does not warrant her relief in this case, we caution
the trial court to comply with the relevant rules for prompt disposition of
decisions in custody cases.

3 We note that despite Mother listing three issues on appeal, the argument
section of her brief consists of only two subheadings, in violation of Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued . . . .”). Because we do not find Mother’s defect to be
substantial, however, we will address the merits of her claims.


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

         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 well-being.” Saintz v. Rinker, 902 A.2d 509,

512 (Pa. Super. 2006) (citation omitted)). The factors to be considered by a

court when awarding custody are set forth at 23 Pa.C.S. § 5328(a).

         (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.




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        (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.

        (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).

     This Court has stated that trial courts are required to consider “[a]ll of

the factors listed in section 5328(a) . . . when entering a custody order.”

J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).

     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

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      opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section
      5323(d) requires the trial court to set forth its mandatory
      assessment of the sixteen [Section 5328 custody] factors prior to
      the deadline by which a litigant must file a notice of appeal.” C.B.
      v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, . . .
      70 A.3d 808 ([Pa.] 2013).

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014).

      However,

      The Custody Act requires only that the trial court articulate the
      reasons for its custody decision in open court or in a written
      opinion or order taking into consideration the enumerated factors.
      23 Pa.C.S.A. §§ 5323(d), 5328(a). . . . [T]here 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). A court’s explanation

of reasons for its decision, which adequately address the relevant factors,

complies with section 5323(d). Id.

      Mother initially argues that the trial court erred in its analysis of section

5328(a)(1) when it concluded that both parents have “the ability to”

encourage and permit frequent contact.         Specifically, Mother argues that the

trial court finding was flawed because the court “did not find whether a party

actually does or does not encourage and permit contact, despite ample

testimony on this.” Mother’s Brief at 38.

      In the opinion accompanying its order, the trial court conducted a more

than sufficient analysis of section 5328(a)(1), stating:

      (1) Which party is more likely to encourage and permit
      frequent and continuing contact between the child and
      another party.



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       The parties have extremely different parenting styles. We are,
       however, of the opinion that both parents have the ability to
       encourage and permit frequent contact between the child and the
       other party. Especially encouraging is that paternal grandmother
       is utilized to the fullest extent possible to enhance communication
       between the parties. Although Mother raises perceived past
       issues to attempt to sway the [c]ourt regarding this factor, we find
       that the past issues stem from heightened sensibilities between
       the parties early in the conflict. Despite the vastly different
       parenting styles, both parents work together to ensure that the
       child will be raised by both parents. This factor does not favor
       either party.

Trial Ct. Op., 8/14/17, at 2.

       Based on those observations, the trial court concluded that it was in the

best interests of Child to reside primarily with Father.     As the trial court’s

findings and determinations regarding the custody factors set forth in section

5328(a)(1) are supported by competent evidence in the record, we will not

disturb them. See C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012)

(stating that we are bound by the trial court’s deductions and/or inferences if

the trial court’s findings are supported by competent evidence of record).

       Mother also asserts that the trial court failed to consider credible

testimony and evidence in considering section 5328(a)(3), (4), (8)-(10), and

(13).4 Essentially, Mother contends that the trial court should have afforded

____________________________________________


4 In her Rule 1925(b) statement and in the questions presented section of her
brief, Mother does not specifically challenge the trial court’s determinations as
to any section other than section 5328(a)(1). Rather, Mother frames her issue
as a general challenge to the trial court’s weight and credibility
determinations. Pennsylvania Rule of Appellate Procedure 1925 provides that
a Rule 1925(b) statement “shall concisely identify each ruling of error that the



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additional weight to the fact that she has been more proactive in scheduling

doctor’s appointments for Child after Child fainted at an arcade. Mother’s Brief

at 40-42.     Mother also contends that the trial court relied too heavily on

Father’s relatively better financial situation when favoring Father as a source

of stability for Child. Id. at 42-44.

       Mother further emphasizes that there is “ample evidence of Father’s

inability and downright refusal to support [C]hild’s emotional wellbeing,

Father’s attitudes towards Mother and her paramour, and his rigidity towards

gender conformity.”        Id. at 50.          In support, Mother references several

incidents. First, Father did not permit child to attend the civil ceremony for

Mother and her paramour, S.S. during his custodial time. Mother emphasizes

that Father provided inconsistent explanations for doing so, until he was

confronted with his text message to Mother that read: “I prayed on it. The

answer is no. You can celebrate your event with him on the days you have

him.” Id. at 46 (quoting N.T., 3/28/17, at 38). Second, Mother asserts that

Father refused to distribute invitations to Child’s birthday party because they


____________________________________________


appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the
Statement and/or not raised in accordance with the provisions of this [Rule]
are waived.” Pa.R.A.P. 1925(b)(4)(vii). In the interest of justice, however,
we decline to find Mother’s issues waived and will review the merits of her
claims. See generally Pa.R.A.P. 1925(b)(4)(v) (“Each error identified in the
Statement will be deemed to include every subsidiary issue contained therein
which was raised in the trial court”).



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had “girl-influences.”5 Id. at 47. Third, Mother states that Father accused

her of dressing Child in “girl-clothes” and refers to Father’s angry reaction to

Mother and S.S.’s purchase of a pink “Pinkie Pie”6 sweatshirt for Child, which,

S.S. testified, Child saw and liked.7          Id.   Mother also notes that Father

explained:

         My opinion is nothing should be forced on a child. If [Child] is
         interested in something, he is. If he’s not, he is not. My concern
         with that issue in general was she was forcing it, influencing him
         at that time, which was over a year ago. I do not believe it’s of
         that severity as of now. I am just keeping an eye on it more or
         less.

Id. at 48 (citing N.T., 3/28/17, at 63). Mother, in turn, concludes that Father

is attempting to impose his views on Child and turning Child against her. Id.

at 50.

         Again, Mother is requesting this Court to disturb the trial court’s weight

determinations with regard to these issues. As the trial court, noted Mother

and Father have “extremely different” parenting styles. Trial Ct. Op., 8/14/17,

at 1. Although Mother was more active in seeking a doctor’s appointment

after Child fainted, there was no indication that Child’s health or welfare were


____________________________________________


5 The invitations bore characters from “Monster High.” We note that Mother
also alleged that Father accused her of trying to turn Child into the “gayest
boy ever.” Mother’s Brief at 47. However, the citation for this quote is to
Mother’s own petition to modify custody.

6   “Pinkie Pie” is a “My Little Pony” character. N.T., 3/28/17, at 25.

7The trial court, however, found S.S. not credible. Trial Ct. Op., 8/14/17, at
2.

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put at risk. Additionally, it is apparent that the trial court did not find in favor

of Father in terms of stability based solely on economic factors. See Trial Ct.

Op., 8/14/17, at 3 (discussing non-economic factors bearing on the trial

court’s determination).     Lastly, although the specific incidents raised by

Mother portray Father’s traditional views regarding gender issues, the record

contained conflicts in the evidence on whether Father’s views have impacted

the Child’s best interests or whether Father has attempted to turn Child

against Mother.

      This Court’s role does not include making independent factual

determinations, and, 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. See V.B., 55 A.3d at 1197. Here, we find that the

trial court’s conclusions are not unreasonable as shown by the evidence of

record, and we find no error of law on the part of the trial court. Thus, we will

not disturb the trial court’s determinations as to the factors set forth in section

5328(a)(3), (4), (8)-(10), and (13). See C.R.F., 45 A.3d at 443.

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

its discretion by awarding primary physical custody of Child to Father and

partial physical custody of Child to Mother.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/18/18




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