J-A23023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.C.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

A.C.,

                          Appellee                    No. 360 WDA 2014


                Appeal from the Order entered January 31, 2014,
              in the Court of Common Pleas of Armstrong County,
                    Civil Division, at No(s): 2009-0713-CIVIL


BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED AUGUST 25, 2014



inter alia, granted parties shared legal custody of their three children



affirm.

        The trial court convened a one-day custody trial on November 19,

2013. The trial court detailed its factual findings as follows:

              Mother and Father are the parents of three minor children:
        [B.C. (DOB: 9/01), J.C. (DOB: 3/04), and L.C. (DOB 12/06)]

        marriage, which ended by a decree of divorce entered December
        4, 2012. The parties physically separated in March 2009 and

        about April 17, 2009. The Consent Order provides that Mother
        shall have primary physical custody of the Children, and Father
        shall have partial physical custody three weekends each month
        from Friday at 6:00 p.m. until Sunday at 8:00 p.m. Each party
        also is entitled to one uninterrupted week of custody during the
        summer, and the holidays are shared equally. Father filed his
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     Petition for Modification of Custody on or about January 18,
     2013, but the parties continue to follow the terms of the Consent
     Order.

          Mother is 31 years old and currently resides with her

     Heights, Pennsylvania, where Mother and the Children have
     resided since 2010. Mother also has a child with Mr. U[.]
     ([C.U.]). Mother is employed at the Get Go convenience store in
     Sarver, Pennsylvania, where she works approximately 32 hours
     per week, mostly at night.      She also works weekends on

     does not have a vehicle. If she is working at a time when she
     has custody of the Children, Mr. U[.] provides childcare. Mother
     is content with the current custody schedule, although she would
     like the option to have custody of the Children when Father is at
     work. Mother has driven on several occasions without a dr
     license, including to transport the Children, but this has not
     occurred for a year or more. Mother drinks alcoholic beverages
     only on occasion. She and Mr. U[.] are living together but are
     not married or engaged.

                                               her moved with the
     Children to Ford City to stay with her mother, [K.K.]. She then
     resided in an apartment in Ford City and enrolled the school-
     aged Children at Lenape Elementary School. Mother then moved
     to Natrona Heights to reside with Mr. U[.] and enrolled the
     Children in school in the Highlands School District. Mother and
     Mr. U[.] then separated, and Mother moved with the Children to
     the Marion Center area, enrolling the Children in that school
     district. Mother moved in with her then-
     she resided for 2 months. While the Children were enrolled in


     matters. In 2010, Mother then moved back to Natrona Heights
     to her current residence with Mr. U[.].

          Mother left the marital residence in March 2009 because of


     threatened her with a hunting rifle. She later withdrew the
     action to permit Father to keep his hunting firearms. She also
     filed a PFA action immediately after leaving the residence in
     2009.    Mother alleged that Father had choked her in the


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J-A23023-14


                                                          her has had
     suicidal tendencies in the past.

            Mother has encouraged the Children to become involved in
     extra-curricular activities in the Highlands School District, but
     reports that Father would not transport the Children to weekend
     activities because it interfered with his custody time.        The
     Children are involved in band and chorus, but do not participate
     in sports or other activities. [B.C.] was enrolled in boy scouts at
     one point, but ceased participation because he could not attend
     a Saturday activity d

           Both [B.C.] and [J.C.] have Individualized Education

     [J.C.] also has a speech impediment and has been diagnosed
     with ADHD.     Mother has resisted medicating [J.C.] for the
     condition because she believes that ADHD is overly-diagnosed.

     that [J.C.] was having increased difficulty in school, she agreed
     to have him re-evaluated.

           J[.U.] is 51 years old. He resides with Mother in Natrona
     Heights, Pennsylvania with the Children and his own child to
     Mother, [C.U.]. Mr. U[.] works at Allegheny Steel Distributors,
     where he has been employed for many years. His working hours
     generally are from 8:00 a.m. to 5:00 p.m., Monday through
     Friday. He has a step-son and a biological daughter from his
     previous marriage. Mr. U[.] smokes cigarettes on a regular

     believe that he drinks excessively. He was arrested in 2011 for
     Driving Under the Influence.         He received Accelerated
     Rehabilitative Disposition, the terms of which he completed in
     2012. Mr. U[.] currently is married to another woman, but their
     divorce is pending.

                                                         s childcare
     abilities are his anger-management problems and the fact that
     he reportedly has been emotionally unstable in the past,
     threatening suicide in front of Mother on at least one occasion.
     She also believes that Father is emotionally distant from the
     Children.


     former marital residence in Homer City, Pennsylvania with his
     fiancée, K[.S.]. Father and Ms. S[.] plan to get married on June
     7, 2014. Father has no other children. [B.C.] and [J.C.] share a

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     Father is employed with Rosebud Mining Company, where he
     works during the week and every other Saturday.


     He believes that Mo
     schoolwork and educational development. Father introduced
     progress reports of the Children indicating that they have
     difficulty completing assignments. Both [B.C.] and [J.C.] have
     IEPs and Mother has, on at least one occasion, not attended the
     IEP meetings and was not available by telephone. Father also
     believes that Mother has been negligent in making sure that the
     Children regularly attend doctor and dentist appointments.
     Father contends that he has taken the Children to all of their eye
     doctor and dental appointments because Mother would not do
     so. He also claims that Mother failed to ensure that the Children
     received all of their regularly-scheduled immunizations.

            Father further contends that Mother lacks sufficient
     discipline skills with the Children. Father believes that Mother
     uses corporal punishment too often and leaves the Children

     ADHD should be medicated. He denies having ever choked
     Mother or held a gun to her head and does not believe that any



     all parenting duties along with his fiancée, Ms. S[.]. Father
     cooks, does laundry, cleans, helps the Children with their
     schoolwork when they bring it, and engages in sporting activities

     and they assist him in providing childcare on a regular basis.

             K[.S.] is 31 years old an
     with Father at his residence in Homer City, Pennsylvania. She
     initially moved in with Father in July 2009, and then moved out
     in 2010. She completed post-secondary education at Indiana
     University of Pennsylvania and graduated with a degree in
     sociology in 2007. She has never been married and has no
     children.     She reports having a good relationship with the
     Children and is willing to significantly modify her lifestyle if
     Father is awarded primary physical custody. Ms. Smail works at

     been employed for over 10 years. She currently is a front-end
     manager and generally works during the week and occasionally

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J-A23023-14


     on Saturdays.     She provides childcare for the Children when

     will provide childcare.

           [B.C.] is 12 years old and resides primarily with Mother in
     Natrona Heights, Pennsylvania. He attends Highlands Middle
     School in Natrona Heights. He enjoys hunting with Father and
     boy scouts. [B.C.] stated Mr. U[.] often smokes in the same
     room with him and that the smoke affects his asthma. He
     currently uses an inhaler to help with his respiratory problems.
     [B.C.] gets along moderately well with Mr. U[.], but admits that
     he gets along better with Ms. S[.]. [B.C.] would rather spend a
     majority of his time with Father.      [B.C.] cannot recall any
     incidents of violence or abuse between Mother and Father.

          [J.C.] is nine years old and is in the fourth grade at
     Grandview Elementary School in Tarentum, Pennsylvania. [J.C.]

     [J.C.] also likes Ms. S[.] better than Mr. U[.]. [J.C.] stated that
     Mother uses her belt as a form of discipline when the boys are
     misbehaving.

           The [trial c]ourt did not interview [L.C.].

Trial Court Memorandum, 1/31/14, at 1-8.

     On January 31, 2014, the trial court issued its memorandum and order

awarding the parties shared legal custody, with Father having primary

physical custody.   Mother filed a timely appeal and concise statement of

matters complained of on appeal, in which she presents the following issues:

        1. DID THE TRIAL COURT ERR IN FINDING THAT THE
           BEST INTEREST OF THE MINOR CHILDREN WAS FOR
           FATHER TO HAVE PRIMARY CUSTODY?

        2. DID THE TRIAL COURT ERR IN APPLYING THE SIXTEEN
           FACTORS SET FORTH IN §5328 OF THE PENNSYLVANIA
           CHILD CUSTODY LAW?

        3. DID THE TRIAL COURT ERR IN RENDERING DECISIONS
           NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE
           AND FINDINGS OF RECORD?


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J-A23023-14




     Withi

                                                                            Id. at

6. Although Mother has three sections in the argument portion of her brief,

the second and third sections merely incorpo

                       Id

issues together.

     This Court has summarized our scope and standard of review in

custody cases as follows:

        [O]ur scope is of the broadest type and our standard of
        review is abuse of discretion. This Court 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,
        this Court must defer to the trial judge who presided over
        the proceedings and thus viewed the witnesses first hand.

        or inferences from its factual findings. Ultimately, the test

        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.

E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (citation omitted).

     Further, with any child custody case, the paramount concern is in the

best interests of the child. J.R.M. v. J.E.A., 33 A.2d 647, 650 (Pa. Super.

2011)   (citation                                                         -by-case

assessment of all the factors that may legitimately affect the physical,


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J-A23023-14



intellectual, moral and spiritual well-                      Id. Several such

factors are enumerated at 42 Pa.C.S.A. section 5328(a)

listed in section 5328(a) are required to be considered by the trial court

                                      J.R.M., 33 A.2d at 652. As noted above,

the weight accorded each of these factors is for the trial court. E.D., supra.

      Here, Mother takes issue with the weight the trial court assigned to

                                              -15. Mother further asserts that



            Id. at 15. We disagree.

      Our review of the 188 pages of the notes of testimony from the



memorandum supporting its custody award, the trial court properly

observed:

            The primary concern in any custody case is the best
      interests of the child. This standard considers all factors that

      moral and spiritual well-
      custody arrangements has the burden to show that modification


      an obligation to consider all relevant factors that could affect the
                 -

Trial Court Memorandum, 1/31/14, at 8-9 (citations omitted).

      The trial court then discussed its factual findings as they relate to each

custody factor enumerated at 23 Pa.C.S.A. § 5328(a).          After considering

each of these factors, the trial court concluded:


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J-A23023-14


           Considering all of these factors together, and giving

        best interest would be served by the parties continuing to
        share legal custody of the Children. We further find that it
                                        est interest for Father to
        maintain primary physical custody, with liberal partial
        custody to Mother.

Trial Court Memorandum, 1/31/14, at 15.

     The trial court explained:

           Although we do not doubt that Mother cares deeply for the
     Children, and can provide for their basic daily needs, we believe
     that Mother has demonstrated a pattern of conduct over the past
     several years that is fraught with poor decision-making. Mother
     has not provided the Children with a stable, consistent, secure
     living environment.     Instead, she seems to make decisions
     involving the Children based on how it will affect her personal

     doubt are due in no small part to their having been exposed to
     several different schools, school districts, and father-figures over
     the past several years. Moreover, Mother currently is living with
     Mr. U[.], who is married himself. Mother has a child with Mr.
     U[.], but is neither engaged nor planning to marry him.

            Father, on the other hand, has lived in the former marital
     residence consistently and has maintained a constant
     relationship with Ms. S[.], who he will marry in just a few
     months. Father also is gainfully employed. The two Children
     who the Court interviewed expressed a preference to reside with

     not perfectly clear in articulating their reasons for preferring to
     live with Father, but they were very clear in indicating that they
     have a much better relationship with Ms. S[.] than with Mr. U[.].


     to provide additional childcare during times when Father works
     or is otherwise unavailable.

           Neither party presents a direct physical, psychological, or

     gainful employment, stable and functional household, and
     consistent lifestyle will provide the Children with a living


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J-A23023-14


     arrangement in which their behavioral, educational, and
     emotional needs can be better served. Moreover, Mother does

     own her home.     Father has demonstrated a willingness and
                                         everyday needs, including
     their medical care, which it seems was neglected at times by
     Mother.

           In sum, we find that Father is more capable going forward
     of providing the Children with the consistent, supportive,
     financially-secure living environment that they will need to


     educational and medical needs as they grow older. We do not
     make any findings that either parent is incapable of providing
     childcare for the Children or poses a threat to them. We simply
     find that an analysis of the relevant custody factors supports an
     award of primary physical custody to Father.

Trial Court Memorandum, 1/31/14, at 16-18.

     Our review of

stability and continuity for the Children in awarding Father primary custody.

Although Mother takes issue with the weight the trial court accorded the

evidence, we may not substitute our judgment for that of the trial court.

E.D., supra

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014



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