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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

C.L.T,                                       :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                           Appellant         :
                                             :
                      v.                     :         No. 1341 WDA 2019
                                             :
J.S.T.                                       :


                  Appeal from the Order Entered August 7, 2019,
                  in the Court of Common Pleas of Butler County
                       Civil Division at No. F.C. No. 18-90307


BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED FEBRUARY 14, 2020

         C.L.T. (“Mother”) appeals from the August 7, 2019 final custody order

that awarded sole legal custody of A.T., female child born in January 2009,

and K.T., female child born in July 2011 (collectively, the “Children”), to

Mother and 50-50 shared physical custody of the Children to Mother and

J.S.T. (“Father”). We affirm.

         The trial court set forth the following:

               [Mother and Father] were married in 2007 but are
               currently separated, with their divorce matter
               pending. The parties continued to reside in the
               marital residence at the time that the divorce and
               custody complaints were filed by Mother in May 2018.
               However, since October 2018, Mother has moved out
               of the marital residence. On October 19, 2018, an
               interim Custody Order was entered whereby the
               parties were given shared physical custody on a
               5/5/2/2 schedule, whereby the [C]hildren are with
               Mother on Monday and Tuesday overnight and with
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             Father on Wednesday and Thursday overnight. The
             parties alternate weekends with the [C]hildren from
             Friday until Monday. A four-day custody trial was held
             on April 9th, 11th, and 12th, 2019, and concluded
             with additional testimony from Dr. [Eric] Bernstein on
             May 6, 2019.

Trial court opinion, 7/19/19 at 1-2.

      The record reflects that on July 19, 2019, the trial court filed an opinion

and an order. In the opinion, the trial court conducted a best-interest analysis

pursuant to 23 Pa.C.S.A. § 5328(a). In the order, the trial court awarded sole

legal custody of the Children to Mother and 50-50 shared physical custody of

the Children to Mother and Father.            Both parties filed motions for

reconsideration. On August 6, 2019, the trial court heard oral argument on

the motions for reconsideration. On August 7, 2019, the trial court entered

its final custody order wherein it awarded sole legal custody of the Children to

Mother and 50-50 shared physical custody of the Children to Mother and

Father.    Mother filed a timely notice of appeal, together with a concise

statement     of   errors    complained      of   on   appeal     pursuant    to

Pa.R.A.P. 1925(a)(2)(i). Thereafter, the trial court filed a Rule 1925(a)(2)(ii)

opinion.

      Mother raises the following issues for our review:

             1.    Did the trial court commit an abuse of discretion
                   and/or error of law when it ordered that the
                   parents should share physical custody on a
                   50-50 basis, even though it found that each of
                   the     sixteen      custody    factors    under
                   23 Pa.C.S.A. § 5328(a) weighed in favor of
                   Mother or were neutral?


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            2.    Did the trial court commit an abuse of discretion
                  and/or error of law when it ordered that the
                  parties should share physical custody on a
                  50-50 custody basis, even though it awarded
                  Mother sole legal custody and found that
                  Father’s behavior was “appalling”, detrimental
                  to the children, and not likely to change?

            3.    Did the trial court commit an abuse of discretion
                  and/or error of law when it ordered that the
                  parties should share physical custody on a
                  50-50 basis when it found that Father’s inability
                  and lack of desire to communicate with Mother
                  precluded a shared legal and physical custody
                  arrangement?

            4.    Did the trial court commit an abuse of discretion
                  and/or error of law when it ordered that the
                  parties should share physical custody on a
                  50-50 basis without considering evidence
                  related to Father’s travel and work schedule and
                  ability to make arrangements for child care?

Mother’s brief at 34.

            In reviewing a custody order, our scope is of the
            broadest type and our standard 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. We defer to the credibility
            determinations of the presiding trial judge, who
            viewed and assessed the witnesses first-hand. We,
            however, are not bound by the trial court’s deductions
            or inferences from its factual findings, and ultimately,
            the test is whether the trial court’s conclusions are
            unreasonable as shown by the evidence of record. We
            may reject the trial court’s conclusions only if they
            involve an error of law, or are unreasonable in light of
            the sustainable findings of the trial court.

            When a trial court orders a form of custody, the best
            interest of the child is paramount. A non-exclusive list


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          of factors a court should consider when awarding
          custody are set forth at 23 Pa.C.S.A. § 5328(a).

          (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 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


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                  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(a).

P.J.P. v. M.M., 185 A.3d 413, 417-418 (Pa.Super. 2018) (internal citations,

quotation marks, and brackets omitted).

      Following consideration of the factors set forth in Section 5328(a), the

trial court may award any of the following types of custody, so long as it is in

the best interest of the child:

            (1)   Shared physical custody.



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            (2)    Primary physical custody.

            (3)    Partial physical custody.

            (4)    Sole physical custody.

            (5)    Supervised physical custody.

            (6)    Shared legal custody.

            (7)    Sole legal custody.

23 Pa.C.S.A. § 5323(a).

      Here, the trial court found that Factors 1, 3, 9, and 10 weighed in

Mother’s favor. The trial court further determined that Factors 2, 4, 5, 8, 11,

12, 14, and 15 weighed in favor of neither party and that Factor 6 was

irrelevant. With respect to Factor 7, which is the well-reasoned preference of

the child, the trial court noted that it

            received [A.T.’s] testimony in-camera. She at first
            described the current custody arrangement as “pretty
            OK[.”] Later she did an about-face, informing the
            [trial c]ourt that she would like to spend her weekdays
            with Mother and spend every other weekend with
            Father.

            [A.T.’s] “pretty OK” opinion was taken by the [trial
            c]ourt as a statement which would allow her to tell
            everyone (including Father) that she told the judge
            that things were alright as they are now. The [trial
            c]ourt finds the desire that Father have only alternate
            weekend[s] is [A.T.’s] real desire. The [trial c]ourt
            finds that her reason for primarily wanting to live with
            Mother is because she can better, more openly
            express herself to Mother.

            The [trial c]ourt notes that Dr. Bernstein reported that
            Mother



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                  “. . . presents a caring, nurturing figure
                  who devotes time and attention to the
                  [Children]. The [Children] identified her
                  as an integral support figure in their
                  young lives and upon whom they rely for
                  their needs.”

            The evaluator also reported that Father

                  “. . . presents as a well-intentioned and
                  actively supportive father to whom [the
                  Children] are attached.”

            Dr. Bernstein’s reports are, of course, both positive.
            However, his perception of Mother buttresses [A.T.’s]
            reason as to why she wants to primarily live with
            Mother.

            Lastly, [A.T.] expressed her opinion to Dr. Bernstein
            (in her second interview) that she wants to live
            primarily with Mother.

Trial court opinion, 7/19/19 at 9-10.

      With respect to Factor 13, which is the level of conflict between the

parties, the trial court concluded that

            [t]his factor will play a major role in the [trial c]ourt’s
            decision.

            Father has an “unequivocally (sic) and unrelenting
            bitterness”    towards Mother.          So     concludes
            Dr. Bernstein in his written evaluation. This conclusion
            is more than amply supported by the evidence. The
            [trial c]ourt does not mean to suggest that there is no
            cause for his bitterness or that his bitterness has no




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            justification. Such a suggestion would be contrary to
            the evidence.

            Father has at all times pertinent hereto essentially not
            spoken to Mother about the [C]hildren and has limited
            his communication to the use of Our Family Wizard.
            Noteworthy is the fact that Father, during his direct
            examination at trial, advised the [trial c]ourt that he
            generally wants to limit Mother’s communication to
            Our Family Wizard messages; that such messages be
            limited to one per day; and that each message must
            be thirty words or fewer!

            Father’s rancor, as stated above, was more than
            amply proven by the evidence. Several incidents are
            illustrative of how Father’s attitude toward Mother can
            affect the [C]hildren.

Id. at 13-14 (citation to Dr. Bernstein’s report omitted). The trial court then

set forth three illustrative incidents, including an example of how “Father’s

hesitancy to communicate with Mother (and possibly his hesitancy to agree to

anything that she suggested)” caused a delay in the Children receiving

counseling, which delay was detrimental to the Children. (Id. at 14-15.)

      With respect to Factor 16, which permits the trial court to consider any

other relevant factor, the trial court found the following relevant:

            [A.T.] was interviewed by Dr. Bernstein on two
            different occasions. Concerning the second interview,
            [Dr.] Bernstein wrote that [the Children] had been
            rude to each other in his presence before the interview
            commenced. During the interview [A.T.] told him that
            if [M]other, rather than [F]ather, had accompanied
            the two girls that day, “she (Mother) would have found
            a way for us to compromise or something . . . pretty
            quickly instead of [Father] letting me do what I want.”
            [Dr.] Bernstein considered [A.T.’s] acknowledgement
            to be insightful.



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                                     *****

             [K.T.] on several occasions tried to act as a
             peacemaker between Father and Mother.

                                     ****

             Father and Mother attended three co-parenting
             sessions   together.      Their   counselor     was
             James Shamlin. Father twice walked out of two of the
             sessions. The co-parenting sessions ceased, and
             Shamlin began to implement a parallel parenting
             strategy in order to better the situation of [this]
             family.

Id. at 17.

      Mother’s first three issues challenge the trial court’s award of

50-50 shared physical custody based on her claims that the trial court erred

because (1) it found that the 16 factors in the best interest analysis either

weighed in Mother’s favor or were neutral; (2) it “found that Father’s behavior

was ‘appalling’”; and (3) it further found that “Father’s inability and lack of

desire to communicate with Mother precluded a shared legal and physical

custody arrangement.” (See Mother’s brief at 34.) Mother also claims that

the trial court “offered no discussion or analysis as to why Father should share

physical custody.”    (Id. at 45.)    The trial court, however, set forth the

following:

             Father’s testimony and exhibits, as well as the custody
             evaluator’s testimony and report, necessarily lead the
             [trial c]ourt to conclude Father is well-bonded with
             both [A.T.] and [K.T.], and vice-versa.          Father
             obviously is well-intentioned and actively supportive
             of both [C]hildren. He is quite capable of meeting the



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          day-to-day physical and educational needs of the
          children.

          The evidence established that Mother was the primary
          caretaker of the [C]hildren before the parties’
          separation. She is a caring and nurturing figure who
          has always devoted time and attention to her two
          daughters. Mother has been the more nurturing of
          the two parties over the years, and [A.T.] finds it
          easier to talk to Mother about things than she does
          with Father.

          The parties have had a 50-50 physical custody
          arrangement in place for a substantial period of time.
          The [C]hildren appear to have adapted well to it. The
          [trial c]ourt acknowledges that [A.T.], at age 10,
          expressed her desire of spending most time with
          Mother.

          What has thus far been stated in this Discussion would
          seem to indicate that a shared legal and shared
          physical custody arrangement is “doable” by the
          parties. However, the inability and lack of desire of
          Father to communicate with Mother precludes such an
          arrangement.

          The [trial c]ourt believes the Father’s unwillingness to
          communicate with Mother about her proposal to have
          the [C]hildren counseled for the separation/divorce
          stress that they experienced was appalling. Instead
          of talking to Mother about her proposal (the correct
          option), he talked to the [C]hildren about it (the
          incorrect option). He appeared to be playing a game
          with Mother by not timely responding to her
          reasonable proposal.

          Behavior like this is very likely to continue to the
          detriment of the [C]hildren. Father’s desire to limit
          Mother’s Our Family Wizard communication to him to
          thirty words and to no more than once daily supports
          this conclusion. Of course, no improvement in this
          area will ever occur until Father resolves his own
          anger and bitterness problems.



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            The [trial c]ourt’s Order will provide for a shared
            physical custody arrangement, but Mother will have
            sole legal custody. She has demonstrated that she is
            more capable than Father of identifying certain needs
            of the [C]hildren. The [C]hildren are more likely to
            have their problems addressed more promptly in a
            sole legal custody arrangement than in a shared legal
            custody situation. The stress to everyone in [this]
            family will be reduced by minimizing the
            communications between Father and Mother.

Id. at 17-18.

      A reading of Mother’s brief on her first three issues clearly demonstrates

her dissatisfaction with the shared physical custody award. Mother sets forth

each of the 16 best-interest factors and highlights portions of the trial court’s

analysis of these factors in an effort to convince this court to reweigh the

evidence and reach a different result. It is well-settled that this court cannot

reverse a trial court’s decision merely because the record could support a

different result. See In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.

2003). When we review a custody order, “the test is whether the trial court’s

conclusions are unreasonable as shown by the evidence of record.” P.J.P.,

185 A.3d at 417 Our thorough review of the record in this case demonstrates

that competent record evidence supports the trial court’s factual findings and

its award of shared physical custody is reasonable in light of those findings.

      Mother finally complains that the trial court erred in awarding shared

physical custody because it failed to consider Father’s travel schedule.

      Before making an award of custody, the Child Custody Act requires trial

courts to consider all 16 factors set forth at Section 5328(a) to the extent the


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

Moreover, “there is no required amount of detail for the trial court’s

explanation [of the Section 5328(a) factors]; 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).

Additionally, “[i]t is within the trial court’s purview as the finder-of-fact to

determine which factors are most salient and critical in each particular case.”

Id. at 339.

      Here, the trial court considered all of the enumerated factors set forth

in Section 5328(a), which the Child Custody Act required it to do. Nothing

supports Mother’s contention that the trial court was required to include

Father’s travel schedule in its Section 5328(a) analysis in order to conduct a

sufficient best-interest analysis. We discern no error of law and no abuse of

discretion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2020




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