J-A27027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.A.S.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                    Appellant

                          v.

M.L.S.,

                    Appellee                    No. 695 WDA 2015


                   Appeal from the Order entered April 1, 2015,
               in the Court of Common Pleas of Lawrence County,
                   Family Court, at No(s): 10871 of 2014, C.A.

BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                   FILED: OCTOBER 30, 2015

         M.A.S. (“Father”) appeals from the trial court order dated March 31,

2015, and entered on April 1, 2015, that granted the motion for special relief

filed by M.L.S., (“Mother”), and suspended Father’s overnight visitation with

the parties’ minor child, M.A.S. (“Child”), who has Down Syndrome and

sleep apnea, until Child has adjusted to using her continuous positive airway

pressure machine (“CPAP”) on a nightly basis. We quash the appeal, as it is

interlocutory.

         On August 26, 2014, Father filed a custody complaint against Mother,

requesting shared legal custody and reasonable partial physical custody of

Child.    On that same date, the trial court entered an order scheduling a

custody conciliation conference for September 26, 2014. On September 9,
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2014, the trial court continued the custody conciliation conference to

October 1, 2014.

      The parties appeared before the custody conciliation officer on October

1, 2014. Thereafter, on October 20, 2014, the trial court entered an order,

dated October 17, 2014, scheduling a review conference before a custody

conference officer for December 15, 2014, and awarding the parties shared

legal custody, Mother primary physical custody, and Father unsupervised

partial physical custody as set forth in the order. The order further provided

that, if all went well pending the review conference, the court would address

Father’s request for partial physical custody every Wednesday evening and

every other Monday evening, in addition to any other issues raised by the

parties at that time.

      On December 5, 2014, Mother filed a petition for special relief, alleging

that Child suffers from obstructive sleep apnea and Down Syndrome.

Mother asserted that Child must adjust to CPAP therapy, and that overnight

partial physical custody with Father is disruptive to the needs and medical

concerns presented by Child’s conditions.     Mother alleged that her home

environment provided Child regularity and consistency necessary for Child to

adjust to CPAP use.     Mother claimed that Father is not certified in proper

First Aid and cardiopulmonary resuscitation (“CPR”) techniques.        Mother

alleged that the court could provide Father regular and more frequent partial

physical custody without awarding him overnight custody. Mother claimed


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that she had concerns regarding Father’s ability to care for Child, generally,

for an entire weekend, and has further concerns as to Child’s safety and the

supervision that Father will provide.

      On December 5, 2014, the trial court entered an order that directed

the parties to appear at a hearing on Mother’s petition for special relief on

February 13, 2015. The order further directed that the custody order issued

on October 7, 20141 would remain in full force and effect, and directed

Father to obtain certification for First Aid and CPR training.     The order

provided that Father was encouraged to obtain the certificates prior to the

hearing scheduled for February 13, 2015.

      On December 22, 2014, the trial court entered a custody order, dated

December 19, 2014, providing that, after the custody conciliation conference

on December 15, 2014, the trial court was directing that Father’s periods of

partial physical custody would continue every other weekend, from Friday at

6:00 p.m. until Sunday at 6:00 p.m.

      On February 13, 2015, the trial court held the first day of the

evidentiary hearing on Mother’s December 5, 2014 petition for special relief.

At the hearing on February 13, 2015, Mother testified, and had the trial

court admit several exhibits into evidence. On February 18, 2015, the trial


1
  The December 5, 2014 order stated that the custody order issued on
October 7, 2014, would remain in effect. This, however, was apparently a
typographical error, as the previous custody order was issued on October
17, 2014.


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court entered an order, dated February 13, 2015, scheduling the second day

of hearing to occur on March 26, 2015.           On March 26, 2015, Mother

presented the testimony of her mother, Child’s maternal grandmother

(“Maternal Grandmother”).      Father testified on his own behalf.      Father’s

counsel then cross-examined Mother.       Mother had the trial court admit an

exhibit into evidence.

      On April 1, 2015, the trial court entered an order, dated March 31,

2015, that granted Mother’s petition for special relief, and directed that

Father would not have overnight visits with Child. The trial court explained

its decision to grant Mother’s request for special relief as follows:

            The [trial court] is obligated to analyze the custody
      standards on a subjective basis and apply the best interest
      analysis to the particular facts of this case. If this case involved
      a seven-year-old child who was adjusting to the typical changes
      that children face when parents are in the process of a divorce,
      the [trial court’s] analysis would be relatively elementary.
      However, this case poses a unique set of facts, in that [Child]
      has been diagnosed with Down [S]yndrome and sleep apnea.
      [Child’s] disposition tends to promote anxious tendencies, and
      the [trial court] believes that [Child’s] anxiety is not subdued by
      her parents’ recent separation. [Child] is additionally adjusting
      to an alternative bedtime routine that currently requires constant
      management.

             The [trial court] finds Mother’s argument that any
      advancement she is making is undone after a weekend visitation
      with Father credible. Father’s approach to [Child’s] bedtime
      routine seems less regimented, which is a negative
      characterization in dealing with a child like [Child]. Typically, the
      [trial court] would find the concerns expressed by Mother to be
      deminimus [sic], but the [trial court’s] determination must be
      considerate of the unique circumstances of this case. Therefore,
      the [trial court] believes that it is appropriate to grant Mother’s
      Petition for Special Relief, and suspend Father’s periods of

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      overnight visitation. In reaching this determination, the [trial
      court] is not trying to penalize Father, but rather, ensure that
      [Child] is able to progress through this difficult time in her life.
      The [trial court] believes [Child] has to become adjusted and
      comfortable with using her c-PAP machine with Mother, who
      serves as her primary custodian. [Child’s] diagnosis mandates a
      disciplined routine, and the [trial court] believes that the c-PAP
      machine is vital to [Child’s] health. Therefore, the [trial court]
      will schedule a custody conciliation conference so that the parties
      can implement an alternative custody schedule that permits
      Father to have custody with [Child] more frequently than every
      other weekend. Father’s custody schedule must occur on a more
      frequent basis, but without overnight visitation, at least until
      [Child] becomes adjusted to using the c-PAP machine on a
      nightly basis.

Trial Court Opinion, 4/1/15, at 5-6.

      The trial court order further provided that an expedited custody

conciliation conference was scheduled to occur on April 8, 2015. The order

stated:

      The parties shall endeavor to work out a new [custody
      agreement] that provides Father with visitation on a more
      frequent basis, but without overnights. If the parties cannot
      reach an agreement, the custody conciliation officer shall issue a
      proposed order consistent with the determination set forth in this
      opinion.

Trial Court Order, 4/1/15, at 1.

      On April 23, 2015, Father timely filed a notice of appeal from the order

entered on April 1, 2015, along with a concise statement of errors

complained of on appeal.

      In his brief on appeal, Father set forth the following issues:

      1. Whether the Trial Court erred or abused its discretion in
      suspending Father’s overnight partial custody where the clear,


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      convincing and credible evidence of record did not support the
      same[?]

      2. Whether the Trial Court erred and/or abused its discretion in
      finding that any progress Mother made in getting the [c]hild
      adjusted to her bedtime routine, including the use of the C-PAP
      machine, is undone after Father’s weekend visitation where the
      clear, convincing and credible evidence of record did not support
      such a finding or any reasonable inference thereof[?]

      3. Whether the Trial Court erred and/or abused its discretion as
      the clear, convincing and credible evidence of record did not
      establish a nexus between Mother’s Complaint about Father’s
      conduct and the [trial court’s] factual findings[?]

Father’s Brief, at 5.

      Father       argues    that   the   trial   court’s   finding,    that    Mother’s

advancements with Child’s sleep apnea were undone after Father’s exercise

of his weekend custody of Child, is not supported by the evidence of record.

Father alleges that the evidence clearly contradicted such a finding, and that

the evidence established that Child had not regressed, but had progressed.

      Father claims that the evidence established that Child’s average daily

use   of     the   CPAP     machine   doubled,     including   the     time    after   the

commencement of Father’s overnight weekend custody. Father asserts that

there was no significant drop off in the amount of Child’s usage of the C-PAP

machine after Father’s weekend exercise of his custody.

      Moreover, Father contends that the record is devoid of any evidence to

establish:

           (a) Child’s lack of use of the C-PAP during Father’s
           weekend caused any harm to Child;


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            (b) Father’s weekends caused any regression in adjusting
            to the bedtime routine; or

            (c) what amount of progress Mother would have made
            but for [Child’s] weekends with Father.

Father’s Brief, at 8.

      Additionally, Father argues that the evidence in the record did not

support the trial court’s finding that Father’s bedtime approach for Child was

less regimented than Mother’s routine. Father asserts that Mother did not

present any evidence of her bedtime routine for Child. Father urges that the

evidence did not establish any nexus between Mother’s complaints and

Father’s conduct, or the trial court’s findings and inferences concerning

Father’s conduct. Father’s Brief, at 8. Father seeks for this Court to vacate

the April 1, 2015 order, and reinstate his overnight custody of Child.

      In response, Mother argues that Father must demonstrate that the

trial court erred in its findings in applying the best interest of the child

standard.      She asserts that, in suspending Father’s overnight partial

custody, the trial court paid particular attention to Child’s medical conditions

and her special needs. Thus, Mother contends that this Court should affirm

the trial court order.

      Initially, we observe that, as the hearings in this matter were held on

February 13, 2015 and March 26, 2015, the Child Custody Act, (“the Act”),

23 Pa.C.S.A. §§ 5321 to 5340, is applicable. C.R.F. v. S.E.F., 45 A.3d 441,

445 (Pa. Super. 2012) (holding that, if the custody evidentiary proceeding


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commences on or after the effective date of the Act, i.e., January 24, 2011,

the provisions of the Act apply).

      In custody 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,
      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

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     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.A. §§ 5328, 5338. 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.A.

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

the trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa.

Super. 2011).

     Section 5323 of the Act 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
     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.


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23 Pa.C.S.A. § 5323.

     Section 5328(a) of the Act provides as follows.

     § 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)(1) and
     (2) (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.


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           (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.A. § 5328.2

     Preliminarily, we must determine whether this appeal is properly

before us “because such a question goes to this [C]ourt’s jurisdiction and

may be properly raised by the court sua sponte.” Mensch v. Mensch, 713

A.2d 690, 691 (Pa. Super. 1998); Wagner v. Wagner, 887 A.2d 282, 285

2
   Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services). Although
applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor.
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(Pa. Super. 2005). “Generally, appeals lie only from a ‘final order.’” In re

J.S.C., 851 A.2d 189, 190 (Pa. Super. 2004) (citing 42 Pa.C.S.A. § 742).

This Court has held “a custody order will be considered final and appealable

only after the trial court has completed its hearings on the merits and the

resultant order resolves the pending custody claims between the parties.”

G.B. v. M.M.B., 670 A.2d 714, 715 (Pa. Super. 1996).           “Generally, a

custody order will be considered final and appealable only if it is both: (1)

entered after the court has completed its hearings on the merits; and (2)

intended by the court to constitute a complete resolution of the custody

claims pending between the parties.”    In re F.B., 927 A.2d 268, 271 (Pa.

Super. 2007).

      It is apparent from the language in the April 1, 2015 order that the

trial court entered the order before the court had completed its hearings on

the merits, and that the trial court did not intend that the order would

constitute a complete resolution of the custody claims pending between the

parties.   The trial court included language in the April 1, 2015 order

regarding the custody conciliation conference scheduled to occur on April 8,

2015, and directing the parties to reach an agreement, and, if they were

unable to reach an agreement, for the custody conciliation officer to file a

proposed order.   We, therefore, find that the appeal is interlocutory, and




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that we must quash it.     G.B., 670 A.2d at 715; In re F.B., 927 A.2d at

271.3

        Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2015




3
  The trial court docket in the certified record in this matter reflects that,
after a custody conciliation conference before a custody conciliation officer
on April 8, 2015, the trial court, in fact, entered a custody order on April 15,
2015.
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