J. S37042/19



NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

L.G. N/K/A L.H.,                         :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :          No. 569 EDA 2019
                                         :
S.T.                                     :


               Appeal from the Order Entered January 22, 2019,
                in the Court of Common Pleas of Lehigh County
                       Civil Division at No. 2017-FC-0550


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 19, 2019

       L.G. n/k/a L.H. (“Mother”) appeals from the January 22, 2019 custody

order1 that denied Mother’s petition for modification; that denied the petition

for contempt filed on October 4, 2018, and the petition for special relief and

petition for contempt filed on November 15 2018 by S.T. (“Father”); that

denied Mother’s December 5, 2018 petition for contempt; and that awarded

shared legal custody of J.T., male child, born in September 2014 (“Child”) to




1 We note that the trial court executed the order on January 18, 2019, but the
order was not entered on the docket until January 22, 2019. As an appeal is
properly taken from an order that has been entered on the docket, we have
corrected the caption to accurately reflect the date that the order from which
Mother appeals was entered on the docket. See Pa.R.A.P. 903(a) (requiring
that a notice of appeal must be filed within 30 days after “entry of the order
from which the appeal is taken”).
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Mother and Father, primary physical custody of Child to Father, and partial

physical custody of Child to Mother.2 We affirm.

      The record reflects that Mother and Father lived together for several

years prior to Child’s birth but never married. Mother and Father ended their

relationship in March 2017.    In November 2017, Mother married.       Mother

attends a beauty school, where she also teaches. She also works as a hair

stylist from her home.   Father resides with his paternal grandmother, two

nephews, and a niece. Father works for a transportation company. Child is

four years old. Mother and Father agree that he has behavioral problems.

      Mother and Father have engaged in extensive litigation for several years

with respect to custody of Child. Mother has filed numerous protection from

abuse (PFA) petitions against Father, the first of which caused him to be

evicted from the parties’ residence in December 2015. During the pendency

of that petition, Mother filed her first complaint for custody. Although Mother

obtained temporary protection orders after filing her PFA petitions, the

petitions were ultimately dismissed for failure to appear or insufficient

evidence. Mother’s first complaint for custody was also dismissed when she

failed to appear at a custody conference.

      Mother filed her second complaint for custody on April 18, 2017 seeking

sole legal and physical custody of Child. Mother continued to file unsuccessful




2 We note that the order also made Mother solely responsible for providing
transportation to effectuate the custodial schedule.


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PFA petitions against Father. On May 15, 2017, Father filed a response to

Mother’s custody complaint, as well as a counterclaim for custody in which he

sought sole legal and physical custody. During this period, Mother relocated

several times. On May 23, 2017, the trial court entered a temporary custody

order granting shared legal and physical custody. Mother continued to file

unsuccessful PFA petitions.    She also continued to relocate.        Prior to the

custody trial, the parties filed petitions for contempt alleging violations of the

temporary custody order against each other. Father also filed a petition for

special relief wherein he alleged that Mother was preventing him from seeing

Child and that it would be in Child’s best interest to be with Father.

      Following a two-day custody trial, the trial court entered its January 22,

2019 custody order. 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).   The trial court filed a Rule 1925(a)(2)(ii) opinion

wherein it incorporated its January 22, 2019 opinion.

      Mother raises the following issues for our review:

            [1.]   Whether the trial court erred in failing to
                   appropriately address and weigh each of the
                   sixteen custody factors as required by
                   § 5328(a)?

            [2.]   Whether the trial court erred in failing to file its
                   decision within fifteen days of the date upon
                   which the trial concluded as required by
                   Pa.R.C[iv].P. 1914.5(d)?




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              [3.]   Whether the trial court erred by considering
                     evidence outside of the record in making its
                     decision?

Mother’s brief at 6.3

        Mother first complains that the trial court failed to adequately consider

the 16 custody factors set forth in the Child Custody Act, 23 Pa.C.S.A.

§§ 5301-5366.

        With respect to our standard of review, it is well settled that

              [w]e review a trial court’s determination in a custody
              case for an abuse of discretion, and our scope of
              review is broad.          Because we cannot make
              independent factual determinations, we must accept
              the findings of the trial court that are supported by
              the evidence. We defer to the trial judge regarding
              credibility and the weight of the evidence. The trial
              judge’s deductions or inferences from its factual
              findings, however, do not bind this Court. We may
              reject the trial court’s conclusions only if they involve
              an error of law or are unreasonable in light of its
              factual findings.

C.A.J. v. D.S.M., 136 A.3d 504, 506 (Pa.Super. 2016) (citation omitted).

        Section 5328 of the Child Custody Act sets forth the 16-factor

best-interest test, 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


3   We note that Father did not file a brief.


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               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.




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               (7)   The well-reasoned preference
                     of the child, based on the
                     child’s     maturity     and
                     judgment.

               (8)   The attempts of a parent to
                     turn the child against the
                     other parent, except in cases
                     of domestic violence where
                     reasonable safety measures
                     are necessary to protect the
                     child from harm.

               (9)   Which party is more likely to
                     maintain a loving, stable,
                     consistent   and   nurturing
                     relationship with the child
                     adequate for the child’s
                     emotional needs.

               (10) Which party is more likely to
                    attend to the daily physical,
                    emotional,    developmental,
                    educational and special needs
                    of the child.

               (11) The    proximity     of    the
                    residences of the parties.

               (12) Each party’s availability to
                    care for the child or ability to
                    make appropriate child-care
                    arrangements.

               (13) The level of conflict between
                    the     parties    and       the
                    willingness and ability of the
                    parties to cooperate with one
                    another. A party’s effort to
                    protect a child from abuse by
                    another party is not evidence
                    of unwillingness or inability to
                    cooperate with that party.



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                  (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).

      Mother complains that the trial court “fail[ed] to provide any in-depth

analysis” on Factors (a)(2), (a)(3), (a)(6), (a)(8), (a)(9), (a)(10), (a)(11),

(a)(12), and (a)(13) and that it placed “exorbitant emphasis” on Mother’s PFA

filings. (See Mother’s brief at 17-18.) In its opinion supporting its custody

order, the trial court set forth a detailed factual and procedural history,

properly recognized its statutory duty to give weighted consideration to the

custody factors that affect the Child’s safety, and determined that

            [o]f the 16 factors, there has been nothing
            substantiated in the record as to a history of drug or
            alcohol abuse by a party or any member of a
            parties [sic] household. 23 Pa. C.S.A. § 5328(a)(14).
            Also, there has been no evidence of a mental or
            physical condition of a party or member of a party’s
            household. 23 Pa.C.S.A. § 5328(a)(15). Each party
            has raised safety concerns regarding the other parent.
            Mother, however, has filed six Petitions for Protection
            from Father. Four of the Petitions were dismissed
            because she failed to appear for the final hearing and
            two    were     denied   for   insufficient  evidence.
            Consequently, this factor is neutral as to each party.
            23 Pa.C.S.A. § 5328(a)(2). Given the tender age of
            the [C]hild, the court did not conduct an interview as
            to the preference of the Child.           23 Pa.C.S.A.
            § 5328(a)(7). The Child is Mother’s only child. Father


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          has a son, age 7, with whom he has regular periods
          of partial custody and extended periods of custody
          during the summer; the child’s mother resides in
          New Jersey. 23 Pa.C.S.A. § 5328(a)(4).

          Each of the parties has extended family involved
          regularly in the Child’s life.          23 Pa.C.S.A.
          § 5328(a)(5). Maternal Grandmother, who provides
          child care, and Maternal Great Grandmother reside
          near Mother at her current address.           Maternal
          Grandfather, [J.G.], who testified on behalf of Mother,
          resides in Allentown with his wife and family. Mother
          and Child regularly visit with them. Father resides
          with paternal Grandmother and his niece and
          nephews. Father has siblings who reside in the Lehigh
          Valley area and who visit with the Child. Based upon
          the parties’ current addresses, they reside
          approximately sixty-one miles apart; drive time
          one-way is a minimum of an hour and twenty minutes
          on a toll road. 23 Pa.C.S.A. § 5328(a)(11).

          The court is permitted to consider any other relevant
          factor. 23 Pa.C.S.A. § 5328(a)(16). Mother moved
          from the Lehigh Valley without consent or prior court
          order. Father filed an objection to her relocation. In
          May 2017 the parents agreed to a shared physical
          custody schedule requiring an exchange every few
          days. In doing so, each of the parties acknowledged
          that the other parent is fit and able to care for the
          Child. Since that time, except those periods precluded
          by a protection order, both parents have performed
          parental duties on behalf of the Child. 23 Pa.C.S.A.
          § 5328(a)(3). Mother purports that she does the
          lion’s share of the care of the Child, but the Court does
          not find her credible. Each party has demonstrated
          that they are equally able to attend to the daily
          physical, emotional, developmental, educational and
          special needs of the Child.                23 Pa.C.S.A.
          § 5328(a)(10). Similarly, each party is available to
          care for the Child and has provided appropriate
          child-care      arrangements.            23     Pa.C.S.A.
          § 5328(a)(12).




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          Furthermore, the May 2017 Order, although it was as
          agreed, did not realistically take into consideration the
          logistics of such a frequent exchange, an 8:00 P.M.
          exchange for a toddler, and the three hour total round
          trip drive.    It was inevitable, given their work
          schedules and other commitments, that the drive time
          and transportation expense would create problems for
          the parties who are of limited means. Moreover,
          disputes were inevitable because there was no
          agreement as to where the Child would schedule
          doctor and dentist visits, and ultimately school.

          To further complicate matters, the parties are unable
          to effectively communicate with one another.
          23 Pa.C.S.A. § 5328(a)(13). Although Mother has
          been married for more than a year, Father had only
          recently met Mother’s wife and perhaps the first time
          was at the custody trial. In the court’s interim order,
          the parties were ordered to communicate through
          Talking Parent. At the time of the trial, Father had yet
          to register for Talking Parent.

          For nearly two years, the parties have had a roller
          coaster ride in parenting due to their agreed custody
          arrangement and Mother’s action. At Mother’s hand,
          the stability of this family residing in separate homes
          has been disrupted, diminishing the ability of each
          parent to maintain a loving, stable, stable [sic] and
          consistent and nurturing relationship with the Child.
          23 Pa.C.S.A. § 5328(a)(9).           Mother has taken
          measures that ultimately have not been in her own
          best interests or that of the Child. The first custody
          factor for the court to consider is which party is more
          likely to encourage and permit frequent and
          continuing contact between the [C]hild and another
          party. 23 Pa.C.S.A. § 5328(a)(1). Clearly, Mother
          has not encouraged this Child’s relationship with
          Father. Although the parties reached an agreement
          that they would share physical custody, Mother has
          engaged in conduct that has precluded Father from
          contact with the Child.        Of the six petitions for
          protection from abuse, she has never been granted a
          final order for protection from abuse from Father on
          behalf of the Child nor herself. However, she has used


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          the issuance of the temporary order for no contact as
          a means to preclude Father’s access to the Child. All
          of Mother’s protection from abuse petitions have been
          denied for insufficient evidence or dismissed at her
          request or due to her failure to appear.[Footnote 1]
          Most recently and most alarming, the temporary order
          of protection denied Father his periods of shared
          custody for more than sixty days. Mother’s petition
          included shocking allegations of Father’s sexual
          assault of the Child which Mother later simply
          withdrew. She has attempted to sabotage Father’s
          relationship with his son. 23 Pa.C.S.A. § 5328(a)(8).
          Mother has not been forthcoming with Father as to the
          address of her residence.        Mother’s testimony
          regarding Father’s withholding the Child was
          contradicted by her own witness, her wife. The record
          demonstrates Mother’s willingness to engage the
          courts in her falsehoods and Mother’s commitment to
          the manipulation of the system at all costs.

                [Footnote 1] The Lehigh County Office of
                Children and Youth Services has been
                involved on multiple occasions; all
                investigations have gone unfounded.

          In filing a petition for modification of custody, Mother
          has opened the door for the court to review the
          current circumstances of the Child and determine a
          schedule in the Child’s best interests. Her request for
          primary custody is denied; primary custody is granted
          to Father. Transportation has been an ongoing issue
          between the parties; timely pick up and drop off is a
          source of much conflict between the parties. Mother
          has consistently complained that Father has been late
          in the pick-up and drop off of the Child. Mother chose
          to move; according to her, it was because she needed
          a change of scenery and Father was overwhelming.
          Father has been actively involved with the Child,
          sharing physical custody. The Child is near school age
          and is eligible for Head Start pre-school. A custody
          order shifting custody every few days between
          households located sixty miles apart and outside the
          same school district is no longer in the Child’s best
          interests.    Modification of the custody order is


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            necessary at this time for stability, consistency and
            the Child’s education.

            The court is required to consider the need for stability
            and continuity in the Child’s education, family life and
            community life.     Overall, Father has established
            himself as the more stable of the two parents.
            23 Pa.C.S.A. § 5328(a)(4). Each of the parties has
            moved multiple times. Most recently Father moved
            twice within a few months. He testified that the move
            was due to the collapse of the roof, circumstances out
            of his control. An eviction action was filed and
            judgment was entered against him for non-payment
            of rent. Mother has made several moves over the past
            eighteen months. She relocated from Allentown to
            Glenolden, Pennsylvania; four months later she
            moved to Philadelphia, Pa [sic] and then several
            months later she moved to Upper Darby,
            Pennsylvania. The moves have been the source of
            frustration to Father as Mother has not provided
            Father with timely proper notice of her moves. While
            Father has had similar changes in his address,
            however[,] all have occurred within the city of
            Allentown, not likely to impact the Child’s education
            or sense of community.

Trial court opinion, 1/22/18 at 13-17 (record citations omitted).

      Mother’s claim that the trial court failed to appropriately address and

weigh each of the custody factors is belied by the trial court’s opinion that

demonstrates that it fulfilled its statutory duty to determine the best interest

of the Child by giving weighted consideration to all relevant factors that affect

the Child’s safety. Based on our review of the record, the evidence supports

the trial court’s factual findings. Moreover, in light of those factual findings,

the trial court’s conclusions are not unreasonable. We discern no error of law.




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      Mother next complains that the trial court violated Pa.R.Civ.P. 1915.4(d)

because it failed to file its custody determination within 15 days of the

conclusion of the custody trial. Rule 1915.4 sets forth rules regarding the

prompt disposition of custody cases. Subsection (d) provides:

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

Pa.R.Civ.P. 1915.4(d) (emphasis added).

      Here, the    record reflects that the      custody trial   concluded on

December 21, 2018. Therefore, the 15th day after the trial concluded was

January 5, 2019, which fell on a Saturday. Consequently, in the absence of

an order extending the date for filing the decision, the trial court had until

Monday, January 7, 2019, to file its decision. See Pa.C.S.A. § 1908 (omitting

Saturdays, Sundays, and legal holidays from the computation of a filing

deadline). The record reflects that by order dated January 4, 2019, and filed

on January 7, 2019, the trial court extended the time for it to file its decision

to January 18, 2019, because of its “current court caseload.” (Order of court,

1/7/19.)   The record further reflects that although the custody order was

dated January 18, 2019, it was not entered on the docket until January 22,

2019, which was four days after the extension deadline and 33 days after the



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conclusion of trial. Although the order was not filed until four days after the

extension deadline, the extension itself was entered for good cause, and the

custody order was entered within 45 days of the conclusion of trial.

      Nevertheless, Mother claims that she suffered prejudice

             by the delay in the filing of the trial court’s Order and
             Decision because custody was overturned effective
             Monday, January 28, 2019. Mother had no notice of
             the trial court’s decision until the Order was retrieved
             by her counsel once it became available on the
             electronic docket on Thursday, January 24, 2018. A
             hard copy from the court was not received until even
             later in the week.

             Being provided with only one day’s notice to the
             change in custody was extremely prejudicial to Mother
             because it limited the relief she was able to seek from
             the trial court. With only one day before custody was
             overturned and provided to Father, she was unable to
             seek a stay of the Order or other remedies that may
             have been available to her due to the limited time
             constraints.

Mother’s brief at 27-28.

      Mother’s claim of prejudice lacks merit. Pa.R.Civ.P. 1915.10 prohibits a

party in a custody action from filing a motion for post-trial relief to an order

of legal or physical custody.       Therefore, because Mother has failed to

demonstrate that she suffered prejudice by the minor filing delay, Mother is

not entitled to relief.

      Mother finally complains that the trial court erred by considering

evidence not of record in the custody proceeding when it decided legal and

physical custody. Mother contends that



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            the trial court considered Mother’s past filings of
            protection from abuse petitions in making the decision
            to change custody. In the trial court’s memorandum
            it is clear that the court sua sponte conducted an
            in-depth analysis of the protection from abuse filings
            despite none of those coming in as evidence during
            trial.

Mother’s brief at 30.

      Mother’s claim is unfounded. The record reflects that at the custody

trial, both Mother and Father testified as to the various PFA petitions Mother

filed against Father.   (Notes of testimony, 12/11/18 at 47-49, 73, 95-99,

129-130, 135; 12/21/18 at 7, 18, 26).        Additionally, during a colloquy,

Mother’s counsel acknowledged the dismissal of the PFA petition that Mother

filed against Father in Lehigh County and had no objection to the trial court’s

reviewing the transcript of those proceedings. (Notes of testimony, 12/11/18

at 97-98.) Mother’s counsel also had no objection to the trial court’s taking

judicial notice of a PFA petition Mother filed against Father in March 2017.

(Id. at 99.) Indeed, Mother’s counsel had no objection to the trial court’s

reviewing the PFA docket in Delaware County and taking judicial notice of all

of the PFA petitions that Mother filed against Father in Delaware County. (Id.)

Clearly, Mother’s claim that evidence of Mother’s PFA filings against Father

was improperly considered by the trial court because they were outside of the

record is belied by the record and warrants no relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/19/19




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