J-A16045-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

W.F.S.,                                   :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
A.C.C.,                                   :
                                          :
                 Appellant                :     No. 230 WDA 2016

                  Appeal from the Order January 19, 2016
                in the Court of Common Pleas of Erie County
                     Civil Division at No(s): 11448-2014

BEFORE:     SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED AUGUST 25, 2016

      A.C.C. (Mother) appeals from the order of January 19, 2016, which

failed to set forth terms to modify W.F.S’s (Father’s) periods of custody

around K.C.S.’s Boy Scout activities and mandated K.C.S. and K.J.S.

(collectively Children) enroll in a traditional “bricks and mortar” school.

Upon review, we affirm the trial court’s order in part and vacate in part.

      This case began in May 2014 when Father filed a complaint for

custody. Pursuant to an initial agreement entered by the parties on June 27,

2014, Mother and Father were to share legal and physical custody of

Children.   Specifically, Mother exercised primary residential custody with

“Father exercising partial custody two overnights each week.” Trial Court

Opinion (TCO), 3/8/2016, at 1 (unnumbered).




*Retired Senior Judge assigned to the Superior Court.
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         Since then, Father’s court-ordered custodial times with Children have

fluctuated, with Mother having sole legal and physical custody of Children for

a period of time.      Additionally, both parties have filed several petitions,

including Mother’s request for Father’s visitation to be supervised and

numerous contempt and modification petitions.

         The aforementioned petitions culminated in a January 15, 2016

custody trial and a January 19, 2016 order issued by the trial court.        The

order provided “Father periods of partial custody and, in relevant part,

further order[ed] that following the 2015-2016 school year, [C]hildren shall

be enrolled in a traditional bricks and mortar school, rather than the

Pennsylvania Cyber Charter School.” Id. at 4.

         Mother timely filed a notice of appeal.   Mother raises the following

issues for our review, which we have reordered for ease of disposition.

   I.      Whether the [trial c]ourt abused its discretion in failing to
           provide terms for the attendance of [K.C.S.] to participate in
           his Boy Scout meetings and activities, where he has been
           enrolled in and participating in the Scouts, and [Father]
           presented no objection to the continued involvement in the
           Scouts or to [Mother’s] request that [Father’s] periods of
           partial custody be modified based upon the schedule of
           meetings and events.

   II.     Whether the [t]rial [c]ourt acted beyond the scope of its
           authority and committed an error of law and/or abused its
           discretion in sua sponte raising a choice of school issue after
           the conclusion of the testimony and evidence and ordering
           that [C]hildren would no longer be permitted to attend their
           school (the Pennsylvania Cyber Charter School), and instead
           would be required to be enrolled in a “traditional bricks and
           mortar” school, where due process requires that the litigants
           receive notice of the issues before the court and an

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          opportunity to present their case in relation to those issues,
          and where neither party raised choice of school as an issue or
          objected to the choice of [C]hildren’s school.

   III.   To the extent that the issue of choice of school is determined
          to have been properly before the [trial c]ourt, whether the
          [trial c]ourt committed an error of law and/or abused its
          discretion where there was no testimony or evidence
          presented to support a finding that [C]hildren’s present school
          is not appropriate, nor was the choice of school contested by
          the [Father].

Mother’s Brief at 8-9 (suggested answers omitted).

      We set forth our well-settled standard of review when considering a

child custody order.

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion. We must accept findings
      of the trial court that are supported by competent evidence of
      record, as our role does not include making independent factual
      determinations. In addition, with regard to issues of credibility
      and weight of the evidence, we must defer to the presiding trial
      judge who viewed and assessed the witnesses first-hand.
      However, we are not bound by the trial court’s deductions or
      inferences from its factual findings. Ultimately, the test is
      whether the trial court’s conclusions are unreasonable as shown
      by the evidence of record. We may reject the conclusions of the
      trial court only if they involve an error of law, or are
      unreasonable in light of the sustainable findings of the trial
      court.

E.R. v. J.N.B., __ A.3d __, 2015 WL 8717198, at *5 (Pa. Super. 2015)

(quoting V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations

omitted)).

      “When a trial court orders a form of custody, the best interest of the

child is paramount. The factors to be considered by a court when awarding




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custody are set forth at 23 Pa.C.S. § 5328(a).” E.R., 2015 WL 8717198, at

*5-6 (citations and quotations omitted).

        First, Mother complains the trial court abused its discretion by failing

to include provisions within the custody order that would require flexibility in

scheduling periods of partial custody with Father around K.C.S.’s Boy Scout

activities. Mother’s Brief at 38-39. Regarding K.C.S.’s involvement in this

“beneficial activity,” Mother “proposed that Father be given notice of the

days and times that [the activities] would conflict with his custodial periods

and that he be given make up time.” Id.

        In rejecting this proposal, the trial court stated it was

        unable to accommodate the request to arrange Father’s custodial
        time around the activity. [K.C.S.’s] meetings and activities do
        not occur on a set day and time. As the [trial court] noted in its
        reasons on the record, there is extreme conflict between the
        parties and the ability of these parties to cooperate is extremely
        limited.   In this regard, a specific order of custody was
        necessary. Mother’s proposal of she [sic] and [F]ather working
        together to establish make-up time will not work for these
        parties.

TCO, 3/8/2016, at 8.

        After a review of the record, we discern no abuse of discretion.

Specifically, we find the trial court’s decision not to accommodate Mother’s

request to schedule K.C.S.’s activity around Father’s partial custody was

based upon its familiarity of the parties and the contentious relationship that

exists between them.1       Based on the history of this case, the trial court’s


1
    See G.A. v. D.L., 72 A.3d 264, 268 (Pa. Super. 2013) (citations removed).

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finding that Mother’s proposal was impractical is reasonable.       No relief is

due.

       Mother’s second and third issues involve the trial court’s holding that

Children should attend a traditional school instead of the Pennsylvania Cyber

Charter School that K.C.S has been attending and K.J.S. will soon begin.

Mother avers the trial court’s decision violated her due process rights,

because the law “requires the parties be given notice of the issues to be

determined, in order to allow the parties the opportunity to prepare and

advocate their respective positions.” Mother’s Brief at 25. Mother contends

the “choice of school did not go to the custody decision itself, [Children’s]

schooling was not raised in any matter by Father as an issue, and Mother

therefore had no notice that this was an issue to be determined in

connection with Father’s petition.”   Id. Mother further argues that, even if

the issue were properly before the trial court, the court abused its discretion

when “determining that it was not in [Children’s] best interest to remain at

their current school.” Id.

       The trial court responded to Mother’s argument as follows.




       In reviewing a custody order … [w]e 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.


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            With regard to Mother’s allegation that there was no
     testimony or evidence to support a finding that cyber school is
     not in the best interests of [] Children, this issue is [] without
     merit. First, there was fairly extensive testimony regarding []
     Children’s education. Of greater relevance, the Court had before
     it a custody dispute involving two very young children, ages 7
     and 5, with parents completely unable to work together for their
     best interest. This case is not even two years old, yet there
     have been five contempt petitions, two modification petitions,
     and a motion for special relief. The one time that the parties
     reached an agreement, Mother, just four days later, requested a
     custody trial to void the agreement and to limit Father to
     supervised visitation. Ultimately, Mother obtained sole legal and
     physical custody when Father failed to appear for either the
     conciliation conference or the custody trial due to his
     incarceration. As a result, Mother ended up in a position of
     control, which she is clearly working hard to maintain. This
     adversarial history, combined with the information below,
     convinces the [trial c]ourt that leaving [] Children’s education
     set up and controlled by Mother in her home will only serve to
     exclude Father completely from this most fundamental of
     aspects of [] Children’s lives.

           During Mother’s period of sole control, she placed her
     domestic partner, [T.R.] in the position of a parent. [T.R.,]
     whom Mother refers to as a “stay-at-home mother,” even quit
     her job to stay at home with [] Children and supervise their
     education through the PA Cyber Charter School. The decision to
     educate [] Children at home is a decision that Mother and [T.R.]
     made with no input from Father. [T.R.] has taken on such a
     large caregiver role in [] Children’s lives that she testified
     “[Children] seem to think my last name is their last name.”
     While it is commendable that [T.R.] has taken on an active role
     in [] Children’s lives, the [trial c]ourt is concerned that []
     Children are struggling with adjusting to the reintroduction of
     Father as a parent in their lives.

            As the [trial c]ourt noted on the record, [C]hildren’s
     behavior after visits with Father indicates that they are
     struggling with issues of loss, sadness[,] and confusion with
     regard to the parental roles that each of the parents plays in
     their lives. Mother has established a family unit for [] Children,
     of which Father is not a part. Albeit partially due to Father’s own
     poor decisions, [] Children have been isolated from Father for

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     several months. Nevertheless, Father remains their parent, he
     has engaged in parenting classes and he indicates a desire and
     willingness to engage in parental duties. Considering the parties’
     inability to cooperate and the procedural history of this case, the
     [trial c]ourt is not convinced that Father can have any role in []
     Children’s education if it remains controlled by Mother and her
     domestic partner. After all, subsequent to Father’s release from
     incarceration and his success in obtaining orders to regain
     contact with [] Children, Mother ended up in contempt for failure
     to provide [C]hildren for scheduled visits with their [F]ather.
     This was just weeks prior to the custody trial.

            It is further noteworthy that attendance via the PA Cyber
     Charter School nearly precludes peer interaction. Meanwhile,
     such peer support has the potential to demonstrate to [C]hildren
     that their non-traditional family is not all that unique in today’s
     society; they are not alone in their struggle to adjust to having
     divorced parents and a non-biological parental figure in their
     lives.

           The Court considered Mother’s reasons of not wanting
     [C]hildren to be in the city schools where the classrooms were
     not aesthetically pleasing and were full. Nevertheless, Mother’s
     domestic partner, a former phlebotomist and paramedic, offers
     no higher degree of competency or benefit in overseeing []
     Children’s education. Accordingly, with the above considerations
     in mind, the [trial c]ourt did not find it in the [C]hildren’s best
     interests to remain isolated in Mother’s home to receive their
     cyber school education.      Instead, it is in [C]hildren’s best
     interests to attend school in the community, with their peers, in
     an environment within which their Father may play an active
     role.

TCO, 3/8/2016, at 6-8 (citations removed).

     We disagree with the trial court’s assessment of this issue.       At the

onset, we note that on orders of custody, our scope of review is broad.

Helsel v. Puricelli, 927 A.2d 252, 254–55 (Pa. Super. 2007).


     [This Court] is not bound by the deductions or inferences made
     by the trial court from its findings of fact, nor must the reviewing


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     court accept a finding that has no competent evidence to support
     it. However, this broad scope of review does not vest in the
     reviewing court the duty or the privilege of making its own
     independent determination.        Thus, an appellate court is
     empowered      to    determine    whether     the   trial  court’s
     incontrovertible factual findings support its factual conclusions,
     but it may not interfere with those conclusions unless they are
     unreasonable in view of the trial court's factual findings; and
     thus, represent a gross abuse of discretion.

Id. citing Liebner v. Simcox, 834 A.2d 606, 609 (Pa. Super. 2003).

     We find our decision in Langendorfer v. Spearman, 797 A.2d 303

(Pa. Super. 2002), instructive.    While we are cognizant of the factual

distinctions, our holding in Langendorfer is pertinent to the assessment of

this issue. In Langendorfer we concluded that

     [w]ithout notice to the parties that custody was at issue, the trial
     court could not “assume that the parties ha[d] either sufficiently
     exposed the relevant facts or properly argued their significance.
     Consequently neither we nor the trial court can make an
     informed, yet quintessentially crucial judgment as to whether it
     was in the best interests of the [child] involved to give sole legal
     [and physical] custody to the mother.”

797 A.2d at 309 (quoting Choplosky v. Choplosky, 584 A.2d 340, 343 (Pa.

Super. 1990)) (some brackets in original)).

     In this case, a review of the record does not provide any indication

that Children’s school was an issue. To the contrary, the custody trial was

set after a prior hearing was held and an order was filed granting Mother

and Father shared legal and physical custody of Children, with Mother still

maintaining primary custody. Mother, who avers she was not able to attend

the hearing, requested the order be voided by the trial court.      The court



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agreed and voided the order, entering a new order which granted less

custodial time to Father. A new custody trial was set, which resulted in the

order at issue. Mother then filed a pre-trial statement, indicating that she

wished to continue to have sole legal custody of Children. Notably, Father

did not file a court-ordered pre-trial statement to indicate an issue with

Children’s education, nor did he object to Children’s education during the

hearing.

     While we recognize that testimony was elicited from Mother and her

domestic partner, T.R. regarding Children’s school, such testimony did not

go beyond K.C.S.’s progress and why he was enrolled in cyber school after a

year in one of the city’s public elementary schools. See N.T., 1/15/2015, at

16-20.

     We cannot reconcile how a trial set to determine Father’s partial

custody of Children would make Mother aware that schooling was an issue.

Had she known, she could have advocated to keep Children in the cyber

charter school system by providing “inter alia, testimony and/or information

from a school district representative as information regarding the [c]harter

[s]chool, a comparison of [c]harter [s]chool versus public school which

[C]hildren would otherwise attend, and evidence of an ability of the non-

custodial parent to be involved in such schooling.” Mother’s Brief at 33-34.

     Furthermore, we find that the trial court’s conclusion that Children’s

best interest would be served by no longer attending cyber school lacking



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the necessary competent evidence needed to support such a decision.

Specifically, the trial court found that having Children’s schooling set up in

Mother’s home “will only serve to exclude Father completely” from a

“fundamental” aspect of Children’s lives and would not allow him to have

“any role” in Children’s education.       TCO, 3/8/2016, at 7-8.          Because

schooling was not raised by either party as an issue, no testimony was heard

regarding how a non-custodial parent can become involved in a child’s cyber

schooling.     Importantly, there was no testimony from Father that he ever

requested and was rejected the opportunity to engage in Children’s

education or that he had shown interest in learning more about Children’s

schooling and was disallowed from receiving this information from Mother.

      The court also concluded that Children’s behavior after visits with

Father “indicates that they are struggling with issues of loss, sadness[,] and

confusion.”2    Id. at 7.   However, we find a dearth of evidence to suggest

that their behavior results from attending cyber school and being supervised

by Mother’s domestic partner T.R. Such behavior is more likely due in part

to, as the trial court characterized it, Father’s “poor decisions.” Id.

      Lastly, the record fails to support the trial court’s finding that

attendance to the cyber school system “nearly precludes peer interaction”


2
 It appears this conclusion was made by the trial court based on information
provided by T.R., who testified that when Children return from visits with
Father “they’re more sheltered” and they “seem more frightened [and] they
seem scared.” N.T. , 1/15/2016, at 39. Notably, the trial court stated it had
not “heard” from Children. Id. at 50.

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and Children’s best interests would not be served by remaining “isolated” in

Mother’s home. Id. From the limited testimony taken regarding this aspect

of Children’s life, Mother indicated that both Children are enrolled in

activities outside the home and that the cyber school offers extracurricular

activities. See N.T., 1/15/2016, at 18, 20-21. Neither party indicated, nor

did the trial court inquire into, how cyber school may be affecting their peer

interaction.   We find the court’s conclusion to be based more on an

assumption that because K.C.S. is not attending a “bricks and mortar”

school, he is isolated and unable to interact with children his age. Because

we find no evidence in the record to support this, we cannot agree with the

trial court’s supposition.

      For these reasons, we vacate the part of the trial court’s order

mandating Children attend a bricks and mortar school. We affirm the court’s

order in all other respects.

      Order affirmed in part and vacated in part.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/25/2016




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