J-S74030-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

D.L.D.,                                    : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellant              :
                                           :
             v.                            :
                                           :
C.L.B.,                                    :
                                           :
                    Appellee               : No. 1598 EDA 2014

                  Appeal from the Order entered April 30, 2014,
                  Court of Common Pleas, Philadelphia County,
                     Domestic Relations at No. 0C0707383

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED JANUARY 14, 2015

      Appellant, D.L.D. (“Mother”), appeals from the order entered on April

30, 2014 by the Philadelphia Court of Common Pleas that granted C.L.B.

(“Father”) primary physical custody of their child, J.C.B. (the “Child”),

following the conclusion of the 2014-2015 school year. After careful review,

we affirm.

      A summary of the relevant procedural history and facts is as follows.

Mother and Father married in 2000. The Child was born in November 2002.

Mother and Father subsequently separated in 2006.

                   The instant custody case commenced on April
             11, 2007 when Mother filed a complaint for primary
             physical and legal custody of [the Child]. On July
             18, 2007, Mother’s complaint was dismissed for lack
             of prosecution.

                  On September 5, 2008, Father filed a
             complaint for shared physical and legal custody of



*Retired Senior Judge assigned to the Superior Court.
J-S74030-14


          [the Child], which was dismissed         for   lack   of
          prosecution on August 3, 2009.

                On July 10, 2009, Father filed a new complaint
          for shared physical and legal custody.            On
          September 8, 2009, the Honorable Margaret Murphy
          entered an interim order granting Mother and Father
          shared physical and legal custody of [the Child]
          pending a full hearing scheduled for February 12,
          2010.    On February 12, 2010, the matter was
          continued to July 7, 2010 with the temporary order
          to remain in effect. The Honorable Doris Pechkurow
          entered a final order on July 7, 2010 granting Mother
          primary physical custody of the [C]hild during the
          school year with Father to follow a specific partial
          physical custody schedule. During the summer, the
          parties were ordered to follow the shared physical
          custody schedule of the September 8, 2009 Order.

                 On April 19, 2012, Father filed a petition to
          modify requesting shared physical custody and a
          petition for contempt stating that Mother failed to
          consult him on several decisions concerning the
          [C]hild. Father also filed a motion for expedited
          relief on August 6, 2012. On September 7, 2012,
          Father’s motion for expedited relief was granted in
          part, and the Honorable Peter Rogers ordered home
          investigations on Mother’s and Father’s residences.
          Following a hearing on February 13, 2013, the
          Honorable Holly Ford dismissed Father’s contempt
          petition and entered a final order confirming primary
          physical custody with Mother and partial physical
          custody with Father.      The parties were granted
          shared legal custody and ordered to attend family
          counseling.

                 On August 19, 2013, Mother filed a petition to
          modify requesting a change in the pick-up and drop-
          off location of the [C]hild and that [the Child] attend
          school in Philadelphia. Mother also filed a petition
          for contempt on August 26, 2013 stating that Father
          moved and enrolled the [C]hild in school in
          Collegeville (Perkiomen) without her consent. After



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J-S74030-14


            a hearing on January 31, 2014, the Honorable Holly
            Ford held the matter in abeyance until the [C]hild
            could be interviewed by the court. On February 6,
            2014, Judge Ford interviewed [the Child] and
            entered an interim order directing both parties to
            submit information to Chambers regarding their
            respective choices of school for the [C]hild to attend
            the following academic year.       Mother’s contempt
            petition and petition to modify were relisted for
            status on April 30, 2014.

                  After a hearing on April 30, 2014, Judge Ford
            entered a final order awarding Mother primary
            physical custody of [the Child] during the school year
            with Father to have partial physical custody every
            weekend, and the parties were directed to keep the
            [C]hild enrolled at Holmes [(the Child’s current
            school)] through the end of the 2014-2015 school
            year. The order transfers primary physical custody
            to Father during the 2015-2016 school year with
            partial physical custody to Mother, and [the Child] is
            to attend Perkiomen. The parties were awarded
            shared legal custody.

                  On May 30, 2014, Mother filed a timely notice
            of appeal of the April 30, 2014 [o]rder and a
            statement of errors complained of on appeal []
            simultaneously.

Trial Court Opinion, 7/11/14, at 1-3 (internal citations omitted).

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

            A. Whether the [trial] court committed an abuse of
            discretion when it ordered that during the 2015-2016
            school year that Father shall receive primary physical
            custody of the minor child and Mother shall have
            partial physical custody of the minor child without
            any analysis of the sixteen [sic] custody factors
            pursuant to 23 Pa[.C.S.A.] § 5328 and/or
            23 Pa[.C.S.A.] § 5323(d)?




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            B. Whether the [trial] court committed an abuse of
            discretion when it issued an order to change the
            custody, living accommodations, and school districts
            for the minor child that will take effect approximately
            a year and five months after the court’s order was
            entered?

            C. Whether the [trial] court committed an abuse of
            discretion when it ordered that during the 2015-2016
            school year that the minor child shall attend
            Perkiomen School without determining how this
            change serves the best interest of the child pursuant
            to 23 Pa[.C.S.A.] § 5328?

            D. Whether the [trial] court committed an abuse of
            discretion when it ordered that during the 2015-2016
            school year that the minor child shall attend
            Perkiomen School sans testimony or evidence from
            current school officials or school officials affiliated
            with the Perkiomen School to determine minor child’s
            best interests, needs, and how or if those needs
            could be addressed at the Perkiomen School?

            E. Whether the [trial] court committed an abuse of
            discretion when it ordered that Father shall receive
            primary physical custody of the minor child without
            any examination of Father’s current household
            members pursuant to 23 Pa[.C.S.A.] §[§] 5329 and
            5329.1?

Mother’s Brief at 5.

      We begin with our well-settled standard of review for custody cases:

            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-S74030-14


            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.

D.K. v. S.P.K., __ A.3d __, 2014 WL 4923111, at *11 (Pa. Super. Oct. 2,

2014) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).

      For her first issue on appeal, Mother asserts that the lower court

committed an abuse of discretion when it entered its April 30, 2014 order

“without any analysis of the [seventeen] custody factors pursuant to

23 Pa[.C.S.A.] §§ 5328 and/or 5323(d).”1          Mother’s Brief at 8.   Mother

argues that “Judge Ford failed to mention in open court, via written opinion,

or in an order[,] her analysis of the [seventeen] factors delineated in

23 Pa[.C.S.A.] § 5328(a)[,]” and that the trial court’s “failure to do so

constitutes an abuse of discretion.” Id. at 12.

      This Court recently explained:

            With any child custody case, the paramount concern
            is the best interests of the child. The legislature


1
   We note that although it is not relevant to the disposition of this case,
neither of the parties nor the trial court recognizes that the legislature
amended section 5328(a) and added a seventeenth factor, which became
effective on January 1, 2014. The statute now includes 23 Pa.C.S.A.
§ 5328(a)(2.1), which requires consideration of child abuse and involvement
with child protective services.      Although Mother filed her modification
petition prior to the effective date of the amended version of section 5328,
the proceeding on the petition occurred after the effective date, so the
amended version applies.        See C.R.F. v. S.E.F., 45 A.3d 441, 445
(Pa. Super. 2012).


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J-S74030-14


           enacted section 5328(a) of the Child Custody Act in
           order to delineate the factors the trial court must
           consider when awarding any form of custody.
           Section 5328(a) sets forth a list of [seventeen]
           factors that trial courts must consider in a best
           interests of the child analysis in making any custody
           determination.

D.K., 2014 WL 4923111, at *6-7 (internal citations and quotations omitted).

     The seventeen factors enumerated in section 5328(a) include:

           (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.

           (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




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J-S74030-14


             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.

42 Pa.C.S.A. § 5328(a).

      Not only are courts required to consider the aforementioned factors,

but “[s]ection 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.’”

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014); see also 23 Pa.C.S.A.

§ 5323(d).    This Court has established that “section 5323(d) requires the




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J-S74030-14


trial court to set forth its mandatory assessment of the [seventeen] [section

5328 custody] factors prior to the deadline by which a litigant must file a

notice of appeal.” A.V., 87 A.3d at 823 (quoting C.B. v. J.B., 65 A.3d 946,

955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013)).

     In C.B., this Court noted that “[s]ection 5323(d) does not contemplate

a specific time period for compliance with section 5328.” C.B., 65 A.3d at

952. We nonetheless concluded:

           To interpret section 5323(d) so as to permit a trial
           court to forego addressing the factors until it issues
           its Pa.R.A.P. 1925(a) opinion – i.e., after a party has
           filed an appeal and a concise statement – renders
           that section’s language mere surplusage.         Under
           such an interpretation, if a party decides not to
           appeal the custody order, and the trial court does
           not address the factors contemporaneously with the
           custody order, the court may never address the
           factors.   However, the [Custody] Act’s language
           requiring the trial court to do so is clear and
           unequivocal. See 23 Pa.C.S.[A.] §§ 5328 (“[T]he
           court shall determine the best interest of the child
           by considering all relevant factors …”) (emphasis
           added); 5323(d) (The court “shall then delineate the
           reasons for its decision on the record in open court
           or in a written opinion or order.”) (emphasis added).
           Such an interpretation would all but guarantee that,
           in many cases, compliance with the [Custody] Act
           would never occur. This result clearly is not what
           the General Assembly intended in promulgating the
           new [Custody] Act, because it would render the
           mandatory language in section 5328 and section
           5323 meaningless.

Id. at 952-53 (emphasis in original).




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J-S74030-14


      In light of its holding, the C.B. Court directed trial courts to “address

the statutory factors, either orally in open court or in a written opinion,

contemporaneously with the issuance of the custody order[,]” providing that

              [i]f, because of the court’s substantial case load or
              other factors, compliance with the [Custody] Act is
              not possible contemporaneously with the order, the
              trial court should indicate in the custody order that
              its examination of the factors is forthcoming shortly,
              so as to not impede a litigant’s ability to pursue an
              appeal if the litigant so chooses.

Id. at 955.

      In the case at bar, the trial court failed to comply with the mandate

set forth in C.B., as the trial court neither discussed the seventeen factors

on the record in open court nor issued a written opinion contemporaneously

with its order detailing its analysis of the seventeen factors in this case.

Although the trial court provided a discussion in its 1925(a) opinion of its

“findings of fact with regard to the [seventeen] custody factors, which, in the

aggregate, form a basis for the [April 30, 2014 order,]” this discussion of its

assessment of the custody factors arose only after Mother filed the instant

appeal. Pursuant to the holding of C.B., the trial court committed an error

of law. See id. at 952-53.

      Nevertheless, although Mother argues that the trial court erred in

failing to provide its analysis of the seventeen factors prior to her filing an

appeal, she neither claims prejudice as a result of the trial court’s infraction

nor proposes a remedy. Moreover, Mother raised specific allegations of error



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J-S74030-14


in her 1925(b) statement relative to the trial court’s consideration of the

seventeen custody factors and presents arguments against the trial court’s

analysis of the seventeen factors in her brief on appeal. Thus, Mother had a

full opportunity to present a meaningful argument for appellate review. To

vacate the trial court’s April 30, 2014 order on such a procedural technicality

in the absence of prejudice to the appellant would be to elevate form over

substance. This is especially so because this is a children’s fast track appeal

and the purpose of this designation is to “expedite the disposition” of the

case. In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009). We therefore

address the merits of Mother’s claim.

      Mother challenges the trial court’s assessment of the section 5328(a)

factors, specifically assailing the trial court’s analysis with regard to factors

three, four, six, eight, twelve, and sixteen.    At the outset, we agree with

Mother that the record does not support the trial court’s findings of fact

made concerning the complained of factors.

      Regarding factor three, we agree with Mother that the record does not

support the trial court’s conclusion that “as [the Child] enters his teen years

it would be beneficial for him to spend more time with [] Father so as to

have a steady male role model.”      Id.   The trial court’s opinion belies this

notion as the trial court states that both Mother and Father are equally

capable of performing parental duties, of maintaining a “loving, stable,

consistent and nurturing relationship with the [C]hild adequate for the



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J-S74030-14


[C]hild’s emotional needs,” and of attending to the Child’s “daily physical,

emotional, developmental, educational and special needs of the child.” Id.

at 6, 8-9.

      We also agree with Mother that the trial court erred by emphasizing

the fact that the Child attended five different schools since he began

kindergarten in weighing factors four, eight, and sixteen in Father’s favor.

The record reflects that all but one of the school changes were the joint

decision of Mother and Father. See N.T., 4/30/14, at 24-25.

      Furthermore, we agree with Mother that the record contains no

evidence that the school changes negatively affected the Child.           See

Mother’s Brief at 15.    At the hearing, Father asked the Child’s teacher

whether changing schools several times would affect the Child’s learning

disability or potentially cause a learning disability.   N.T., 4/30/14, at 18.

Miss Johnson responded by stating, “I can’t answer based on what causes a

specific learning disability. That’s from a psychologist point of view with a

diagnosis.   I can say that basically what brings his levels low is missing

skills.” Id. In the absence of any testimony establishing that the change in

schools “had an ongoing negative effect on the [Child’s] welfare,” we

conclude that the trial court erred by basing the custody award on the fact

that the Child attended five different schools since he began kindergarten.

See In re Leskovich, 385 A.2d 373, 377 (Pa. Super. 1978) (“we could not

base a custody award on such a finding unless we could conclude that the



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J-S74030-14


past behavior had an ongoing negative effect on the children’s welfare.”);

see also Commonwealth ex rel. Jordan v. Jordan, 448 A.2d 1113, 1116

(Pa. Super. 1982) (reversing the lower court’s decision “where there was no

testimony at trial to support an inference that the changes in residence

adversely affected the child.”).

      Regarding factor six, which requires the trial court to consider the

child’s sibling relationships, the record reveals no support for the trial court’s

determination that living with Father “could potentially encourage [the Child

and J.R., Father’s fiancée’s son, who, like the Child, also has a learning

disability] to build a support network for one another at home and at school,

benefitting both children.” See Trial Court Opinion, 7/11/14, at 7. The only

testimony regarding the Child’s relationship with J.R. 2 occurred during the



2
    Mother also argued that Father’s fiancée’s son, J.R., is not the Child’s
sibling as he is neither a biological sibling nor a step-sibling. We find this
argument to be without merit. As the record reflects, Father “has been with
his fiancée and her son, J.R., for the past eight years.” Trial Court Opinion,
7/11/14, at 15 (citing N.T., 4/30/14, at 46). We are unaware of any case
law establishing that non-biological sibling relationships do not bear on a
child’s best interests. To the contrary, this Court has previously considered
step-sibling and quasi-sibling relationships in assessing a child’s best
interests in a variety of contexts. See M.E.V. v. F.P.W., 100 A.3d 670, 678
(Pa. Super. 2014) (“Plainly all of the sibling, step-sibling, and quasi-sibling
relationships in this case have either emerged or evolved since the trial
court’s 2012 order was entered in ways that bear materially on the
Children’s best interests.”); Fuehrer v. Fuehrer, 906 A.2d 1198, 1204 (Pa.
Super. 2006) (concluding that the trial court erred in granting relocation
without considering “how the children’s move to another country [would]
impact the relationship and the bond that must exist between the[] children
and their older step-sisters.”); Ketterer v. Seifert, 902 A.2d 533, 541
(Pa. Super. 2006) (“this Court’s concern must be centered upon whether the


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J-S74030-14


trial court’s in camera interview of the Child, wherein, the following

exchange occurred:

            Q. Let’s see what else, you have a stepbrother or
            kind of a stepbrother, [J.R.] at your dad’s house?

            A. Yes.

            Q. Do you get along with him?

            A. Sometimes.

            Q. You know that he has some reading problems
            too, don’t you?

            A. Yes.

            Q. Do you work with him at all?

            A. No.

N.T., 4/30/14 (child interview), at 12-13.        In the absence of any other

testimony or evidence, we conclude that there is no evidence in the record

to support the trial court’s finding in this regard.

      Finally, we agree with Mother that in considering the parties’

availability to care for the Child pursuant to factor twelve, the trial court

mischaracterized Mother’s testimony at trial regarding her willingness to



move is in S.K.’s best interests. A move across the country will not only
take S.K. away from his father and step siblings, with whom he shares a
close relationship, but also an educational plan.”). Moreover, the comment
to section 5328 provides that “[s]ubsection (a)(6) is intended to include full-
blood siblings, half-blood siblings, step-siblings and adoptive siblings.” Thus,
Mother’s argument that the trial court’s analysis of the Child’s relationship
with J.R. is flawed because J.R. “is in no way a sibling of [the Child]” is
without merit.


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make arrangements to travel to Perkiomen. In its analysis of this factor, the

trial court stated that “Mother definitively stated that it was ‘too far’ for her

to go when questioned as to whether she was willing to make arrangements

to travel to Perkiomen.”     See Trial Court Opinion, 7/11/14, at 10.        The

record, however, provides as follows:

            Q. Would you agree for [the Child] to attend school
            [at Perkiomen]?

            A. No.

            Q. Why?

            A. It’s too far for me to, you know, go to [sic] -- I
            feel as though he has special services, then I
            wouldn’t see [the Child]. I wouldn’t get to see him,
            you know, as much as I see him. And the services
            that he get [sic] now I think is more than enough.
            It’s adequate. Because he’s getting the services that
            he needs from both school and both from private
            tutoring.

N.T., 4/30/14, at 26.

      At no point did the trial court ask Mother whether she was willing to

make arrangements to travel to Perkiomen.           Mother’s testimony simply

expressed her preference regarding the Child’s school, stating that she did

not want the Child to attend Perkiomen because she felt he received

adequate services from the school he currently attended. Id. Thus, we find

the trial court’s statement to be unsupported by the record.

      The trial court’s erroneous findings notwithstanding, we conclude that

reversal is not warranted. Rather, as previously stated, this Court’s role is



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to determine “whether the trial court’s conclusions are unreasonable as

shown by the evidence of record.” D.K., 2014 WL 4923111, at *11 (quoting

J.R.M., 33 A.3d at 650).

      In addition to the unsupported considerations, the trial court relied

upon the Child’s preference to spend more time with Father; Father’s

testimony that he is the one that helps the Child with his school work and

projects; and that although the Child is doing well at Holmes with his special

education teacher, he will have to change schools for seventh grade and

Perkiomen is a better school and has special education programs to meet the

Child’s needs.    The record supports the trial court’s findings in these

respects.

      First, Mother argues that there is no evidence to support the trial

court’s finding that Father is more proactive in the Child’s education.

Mother’s Brief at 13.   The trial court, however, deemed credible, Father’s

testimony that he is the parent that helps the Child with school work and

projects. Trial Court Opinion, 7/11/14, at 6; see N.T., 4/30/14, at 41-42.

As the trial court is the sole arbiter of the credibility of witnesses, we are

unable to find that the trial court abused its discretion.    See Busse v.

Busse, 921 A.2d 1248, 1255 (Pa. Super. 2007) (“The fact-finder is in the

best position to assess credibility of witnesses and we do not disturb

credibility determinations on appeal.”).




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      Next, despite Mother’s assertion that the trial court’s statement that

Father found a school system equipped to address the Child’s needs “is in

opposition to the [n]otes of [t]estimony[,]”        Mother’s Brief at 18, we

conclude that the record supports the trial court’s conclusion that Perkiomen

is equipped to address the Child’s needs. The record reflects that Perkiomen

has a “Wilson Program which is specific for reading,” and has “a variety of

options within the district if a more or less intensive program is warranted.”

N.T., 4/30/14, at 52-53.     Mother presented no evidence to contradict the

trial court’s finding on this issue. The trial court also reviewed a packet of

information presented by Father regarding the offerings Perkiomen had for

the Child’s education, as well as a packet submitted by Mother regarding the

Child’s current school district. As our standard of review provides, it is not

this Court’s role to make independent factual determinations or disturb the

trial court’s determinations that are supported by the record.         See D.K.,

2014 WL 4923111, at *11.

      The trial court also properly considered the Child’s preference in

reaching   its   decision.   “The   Pennsylvania   Domestic      Relations   Code,

23 Pa.C.S.A. § 101, et seq., is clear that a trial court is required to consider

a child’s preference before entering an award of partial custody[.]”

Gianvito    v.   Gianvito,   975    A.2d   1164,   1170   (Pa.    Super.     2009);

23 Pa.C.S.A. § 5303(a)(1).




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            Although the express wishes of a child are not
            controlling in custody decisions, such wishes do
            constitute an important factor that must be carefully
            considered in determining the child’s best interest.
            The weight to be attributed to a child’s testimony can
            best be determined by the judge before whom the
            child appears. The child’s preference must be based
            upon good reasons and his or her maturity and
            intelligence must also be considered.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1239 (Pa. Super. 2009) (citing

Masser v. Miller, 913 A.2d 912, 920 (Pa. Super. 2006)).

      The record reflects that the trial court interviewed the Child, who was

eleven years old, and “found him to be a competent witness.” Trial Court

Opinion, 7/11/14, at 8.   The Child expressly stated that he wished to live

with Father because he did not get to see him enough and really missed

him. Id.

      In McMillen v. McMillen, 602 A.2d 845 (Pa. 1992), our Supreme

Court upheld the trial court’s determination that a child’s best interest would

be served by placing him in the custody of his father based on the child’s

stated preference. Id. at 848.

            Having reviewed the previous custody orders in this
            case, the trial court concluded that both the home of
            the mother and that of the father were equally
            acceptable. The trial court, therefore, was forced to
            look at other factors in making its decision. The only
            testimony taken at the most recent custody hearing
            was that of the child, Emmett, who was then almost
            11 years old. Emmett testified that he preferred to
            live with his father.

                                    ***



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            The record supports the trial court’s finding that both
            households were equally suitable. This being so,
            Emmett’s expressed preference to live with his father
            could not but tip the evidentiary scale in favor of his
            father. Thus, the trial court’s conclusion that it
            would be in Emmett’s best interest to modify the
            prior custody order by transferring primary custody
            from the mother to the father is supported by the
            record, and we find no gross abuse of discretion by
            the trial court in awarding primary custody to the
            father.

Id. at 847-48.

      Similar to McMillen, in this case, the record reflects that the trial

court determined that Mother and Father were equally capable of providing

for the Child, but found particularly important the Child’s expressed

preference to live with Father. Thus, as in McMillen, we find no error in the

trial court’s determination as the Child’s preference ultimately “tip[ped] the

evidentiary scale in favor of [] [F]ather.” See id. at 848.

      Following our review of the record, we conclude that the trial court’s

decision to award physical custody to Father after the 2014-2015 school

year is supported by the record. Accordingly, the trial court did not abuse

its discretion. Mother is not entitled to relief on her first issue.

      For her second issue on appeal, Mother argues that the lower court

committed an abuse of discretion by entering a custody order one year and

five months prior to the order taking effect. Mother’s Brief at 19. Mother




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contends that the matter is not ripe for consideration because it “fails to take

into account the circumstances at the time of the hearing.” Id. at 20.

      We note that Mother’s discussion of this issue is one paragraph and

that she does not develop her argument in support of her assertion that the

matter was not ripe for the trial court’s consideration. The argument portion

of Mother’s brief contains one citation to Hartman v. Hartman, 476 A.2d

938 (Pa. Super. 1984), which states that courts must “look at the parties’

circumstances existing at the time of the hearing.” Id. at 941 (quoting In

re Leskovich, 385 A.2d at 377).        Mother also provides one conclusory

statement that “[t]o project what will happen when the [C]hild is in seventh

grade, almost two years after the entry of the said order, fails to take into

account the circumstances at the time of the hearing and rules on a matter

that is not ripe for consideration.” Mother’s Brief at 19-20.

      Under Rule of Appellate Procedure 2119(a), the argument section of

an appellate brief must provide “discussion and citation of authorities as are

deemed pertinent.”      Pa.R.A.P. 2119(a).      As Mother fails to develop

meaningful argument on this issue, we conclude that Mother’s claim is

waived, as it is wholly inadequate to present an issue for our review. See

Butler v. Illes, 747 A.2d 943, 944 (Pa. Super. 2000) (“When issues are not

properly raised and developed in briefs, when briefs are wholly inadequate to

present specific issues for review, a court will not consider the merits

thereof.”).



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      Even if Mother had not waived the issue, we would conclude that

Mother’s claim is without merit.    Our review of the record reveals that,

contrary to Mother’s assertion, the trial court did “take into account the

circumstances at the time of the hearing,” and issued its determination

based on those considerations.     The trial court determined, based on the

Child’s progress at the school as well as the positive relationship the Child

had with his special education teacher, that he should remain at Holmes

until the end of the 2014-2015 school year. Trial Court Opinion, 7/11/14, at

13. The trial court further found that because the Child could only attend

Holmes through the sixth grade, the Child would have to transfer schools

after the 2014-2015 school year, and the evidence presented revealed that

the Child’s best interests would be served by thereafter attending Perkiomen

and living primarily with Father. Id. Accordingly, Mother’s second issue on

appeal is without merit.

      For her third and fourth issues, Mother argues that the trial court

committed an abuse of discretion when it ordered that the Child shall attend

Perkiomen School beginning in the 2015-2016 year. Mother’s Brief at 20-

21. Mother first argues that the trial court committed an abuse of discretion

when it entered this order without determining how it serves the best

interest of the Child pursuant to section 5328. Id. at 20.

      The trial court “maintains that it was not required to consider the

statutory factors under 23 Pa.C.S.[A.] § 5328(a) in deciding which school



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[the Child] should attend as it was not an award of custody.”      Trial Court

Opinion, 7/11/14, at 12.   The trial court cites to M.O. v. J.T.R., 85 A.3d

1058 (Pa. Super. 2014), wherein this Court held that where a trial court

“merely modifie[s] a discrete custody-related issue, it [is] not bound to

address the sixteen [sic] statutory factors in determining the Children’s best

interest.   However, under Section 5338, the trial court [is] required to

determine that the modification that it did order was in the Children’s best

interest.” Id. at 1063.

      In another recent decision, this Court further addressed this issue,

stating:

            It also is true that resolution of an otherwise
            ancillary matter may affect a form of custody and
            require consideration of the § 5328(a) factors. For
            instance, the choice of a child’s school may factor
            into a trial court’s decision to award a form of
            custody when the trial court is addressing a request
            to establish or change legal or physical custody in
            connection with the choice of school. One parent in
            a custody dispute may argue that he or she is
            entitled to primary physical custody because his or
            her residence has much better schools. On the other
            hand, many times – like here – these items may
            appear as independent, discrete issues advanced by
            motion or petition that does not require a change in
            the form of custody. Although any decision requires
            consideration of the child’s best interest, only the
            former     situation   requires   consideration  and
            application of the § 5328(a) factors.

S.W.D. v. S.A.R., 96 A.3d 396, 403 (Pa. Super. 2014).




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       Unlike S.W.D., the issue of what school the Child should attend is not

an “independent, discrete issue” in this case. Instead, the determination of

which school the Child attends simultaneously determines which parent

receives physical custody, as the two potential schools are located an hour

from each other, with Perkiomen being nearer to Father’s residence. In this

instance, the decision that the Child should attend Perkiomen required a

change in the award of physical custody from Mother to Father. As the trial

court’s order modified the custody order, it was required to consider the

statutory factors under section 5328(a).

       As we determined at the outset of this memorandum, however, the

trial court considered the statutory custody factors under section 5328 and

provided its analysis with respect to those factors.   Furthermore, we have

already concluded that the trial court considered the evidence presented by

the parties and properly concluded that the modification of the custody order

and the change in the Child’s school placement for the 2015-2016 school

year served the Child’s best interest.     Thus, these arguments are without

merit.

       For her fifth and final issue on appeal, Mother asserts that the lower

court committed an abuse of discretion by failing to examine Father’s current

household members pursuant to 23 Pa.C.S.A. §§ 53293 and 5329.14.



3
    Section 5329 provides, in relevant part:



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Mother’s Brief at 22. The trial court argues that Mother waived this issue,

stating:

             During the hearing on April 30, 2014, no evidence
             was presented to indicate that Father or any of his
             household members had been convicted of or had
             pled guilty to any enumerated offense or that any
             substantiated child abuse reports existed. In fact,
             counsel for Mother failed to address the issue
             altogether.

Trial Court Opinion, 7/11/14, at 15.




             Where a party seeks any form of custody, the court
             shall consider whether that party or member of that
             party’s household has been convicted of or has
             pleaded guilty to or no contest to any of the offenses
             in this section or an offense in another jurisdiction
             substantially equivalent to any of the offenses in this
             section. The court shall consider such conduct and
             determine that the party does not pose a threat of
             harm to the child before making any order of custody
             to that parent[.]

23 Pa.C.S.A. § 5329.
4
    Section 5329.1 provides, in relevant part:

             [W]here a party seeks any form of custody subject
             to the examination of the parties, the court shall
             determine:

                                       ***

               (1)(ii) Whether a party or a member of the
               party’s household has been identified as the
               perpetrator in an indicated or founded report of
               child abuse.

23 Pa.C.S.A. § 5329.1.


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      Rule 302(a) of the Pennsylvania Rules of Appellate Procedure states

that “[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). As Mother failed to raise this

issue at trial, this issue is waived.

      Order affirmed.

      Bender, P.J.E. joins the Memorandum.

      Strassburger, J. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/14/2015




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