J-A03032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.E.C.,                                  :       IN THE SUPERIOR COURT OF
                  Appellee               :             PENNSYLVANIA
                                         :
                    v.                   :
                                         :
C.C.C.,                                  :
                  Appellant              :           No. 1387 MDA 2014

                  Appeal from the Order entered July 23, 2014,
               in the Court of Common Pleas of Lancaster County,
                       Civil Division, at No(s): CI-1215695

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                             FILED MAY 12, 2015

        C.C.C. (“Father”) appeals, pro se, from the order entered in the

Lancaster County Court of Common Pleas, denying Father’s petition for

contempt against J.E.C. (“Mother”), and directing that the custody order

entered on May 6, 2013, regarding their male children, I.G.C., born in

November of 2004, and R.D.C., born in July of 2007, (“Children”), shall

remain in full force and effect, subject to enumerated limited revisions. We

affirm.

        The trial court set forth the factual background and procedural history

of this case, which we adopt herein.         See Trial Ct. Op., 9/12/14, at 1-5.

Importantly, on October 17, 2012, Mother filed a custody complaint against

Father. On December 3, 2012, the trial court memorialized an agreement of

the parties into a custody order, under which the parties shared legal

*
    Former Justice specially assigned to the Superior Court.
J-A03032-15


custody of Children, Mother retained primary physical custody, and Father

exercised partial physical custody, in accordance with a schedule. The trial

court entered the order on December 5, 2012. By agreement of the parties,

on March 13, 2013, the trial court entered a custody order, dated March 11,

2013, directing that legal custody remained shared, primary physical

custody remained with Mother, and partial physical custody remained with

Father, in accordance with a schedule.

     On May 3, 2013, the trial court held an evidentiary hearing. On May

7, 2013, the trial court entered an order, dated May 6, 2013, directing that

legal custody would remain shared by the parties, Mother would maintain

primary physical custody, and Father would exercise partial physical

custody, in accordance with a schedule.

     On September 20, 2013, Father filed a pro se petition for modification

of the custody order. The parties were unable to reach an agreement at a

custody modification conference held on November 12, 2013. On December

20, 2013, the trial court entered an order, based on the recommendation of

the custody conference officer, directing that the May 6, 2013 order would

remain in effect, pending a custody hearing scheduled to occur on February

27, 2014.

     On December 13, 2013, Father filed a pro se petition for contempt

against Mother.   The trial court consolidated the hearing on the contempt

petition with the modification hearing. On December 31, 2013, Father filed



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a pro se petition for special relief requesting emergency custody of the

Children, and indicating that Father would present the matter in a Family

Business Court session on January 6, 2014.        Father did not present the

petition. At Father’s request, on February 6, 2014, the trial court held a pre-

trial conference.   On February 26, 2014, the hearing was re-scheduled to

June 4, 2014.

        On February 27, 2014, Father filed another pro se petition for special

relief requesting emergency custody of the Children, and indicating that he

would present the matter in a session of Family Business Court on March 7,

2014.    Father presented the petition, pro se, on March 7, 2014 in Family

Business Court. On that same date, the trial court denied the petition, and

entered its order on March 10, 2014.

        On June 4, 2014 and June 5, 2014, the trial court held an evidentiary

hearing on Father’s modification and contempt petitions.       The trial court

entered its opinion and order on July 23, 2014, denying Father’s petition for

contempt, and directing that the custody order entered on May 6, 2013,

shall remain in full force and effect, subject to the enumerated limited

revisions.     On August 1, 2014, Father filed a         pro se motion for

reconsideration.

        On August 15, 2014, Father filed a pro se notice of appeal, along with

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.




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1925(a)(2)(i) and (b). The trial court denied reconsideration on August 18,

2014.

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

           1. DID THE TRIAL COURT FOLLOW THE PROMPT
           DISPOSITION OF CUSTODY CASES AS OUTLINED IN 23
           PA.C.R. 1915.4 [SIC]?

           2. DID THE TRIAL COURT INCORRECTLY NOTE FACTUAL
           EVIDENCE AND TESTIMONY THROUGHOUT IT’S [SIC]
           OPINION?

           3. DID THE TRIAL COURT IMPROPERLY INDICATE THAT
           [FATHER] WAS DEFICIENT IN ENCOURAGING THE
           CHILDREN TO HAVE A RELATIONSHIP WITH THEIR
           MOTHER DURING HIS VISITATION?

           4. WAS THE TRIAL COURT IN ERROR WHEN IT
           DETERMINED THAT THE LACK OF SUPERVISION BY
           [MOTHER] WAS AN ISOLATED INCIDENT?

           5. DID THE TRIAL COURT COMMIT AN ERROR BY GIVING
           CONSIDERATION TO TESTIMONY GIVEN BY [MOTHER’S
           WITNESS, C.C.]?

           6. WAS THE TRIAL COURT IN ERROR WHEN IT
           DETERMINED THAT [FATHER] INFLICTED AN EXCESSIVE
           AMOUNT OF CORPORAL PUNISHMENT?

           7. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
           RECOGNIZED [MOTHER] TO BE THE PRIMARY CARETAKER
           OF THE CHILDREN SINCE BIRTH?

           8. DID THE TRIAL COURT COMMIT AN ERROR BY VIEWING
           THE CURRENT CUSTODY ORDER AS AN ACCEPTABLE
           STANDARD OF LIVING DUE TO THE DURATION IN WHICH
           THE CURRENT ORDER HAS BEEN IN EFFECT?

           9. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
           MISTOOK [MOTHER’S] MANIPULATIVE ACTIONS TO SEIZE
           SOLE CUSTODY OF THE CHILDREN TO BE A DIRECT
           RESULT OF [FATHER’S] CONDUCT?


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       10. DID THE TRIAL COURT RECOGNIZE TESTIMONY GIVEN
       REGARDING THE ENCOURAGEMENT OF RELATIONSHIPS
       WITH THE MATERNAL SIDE OF THE FAMILY BY [FATHER]?

       11. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
       FAILED TO UPHOLD THE RIGHTS OF THE CHILDREN TO
       HAVE MORE ACCESS TO [FATHER] AS WAS REQUESTED
       BY [I.G.C.] DURING TESTIMONY?

       12. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
       CONSIDERED THAT BOTH PARENTS ARE ABLE TO SIMPLY
       ATTEND     THE    DAILY   PHYSICAL,   EMOTIONAL,
       DEVELOPMENTAL, EDUCATIONAL, AND SPECIAL NEEDS OF
       THE CHILDREN RATHER THAN CONSIDERING EACH
       PARTY’S ACTUAL PERFORMANCE OF SAID NEEDS?

       13. DID THE TRIAL COURT COMMIT AN ERROR IN
       DETERMINING THAT TRANSFERRING CUSTODY TO THE
       CHILDREN’S FATHER [ ] WOULD BE MORE DISRUPTIVE
       THAT [SIC] TRANSFERRING CUSTODY TO A CHILD CARE
       GIVER?

       14. WAS THE TRIAL COURT IN ERROR WHEN IT CLAIMED
       THAT IT IS A FACT THAT THERE WAS CORROBORATED
       MANIPULATIVE BEHAVIOR BETWEEN [FATHER] AND
       WITNESS [T.F.] TO REMOVE [MOTHER’S WITNESS, C.C.]
       FROM A RESIDENTIAL FACILITY?

       15. DID THE TRAIL [SIC] COURT COMMIT AN ERROR
       WHEN IT MADE THE DETERMINATION THAT THERE WAS
       NO EVIDENCE TO SUPPORT THE CONTEMPT ALLEGATIONS
       MADE BY [FATHER] AND TO FURTHER COMMENT THAT IT
       IS VIEWED THAT SUCH CLAIMS WERE PUNITIVE IN
       NATURE AND WERE BEING USED TO MANIPULATE THE
       TRIAL COURT TO GAIN FAVOR?

       16. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT’S
       [SIC] DETERMINATION THAT THE CURRENT LEVELS OF
       THE CHILDREN’S STRESS WERE NOT EXCESSIVE ENOUGH
       TO WARRANT A CHANGE IN VISITATION[,] WHICH
       SUGGESTS THAT LIVING WITH THESE SYMPTOMS, WHICH
       WERE NOT A CONCERN PRIOR TO SEPARATION, ARE NOW
       AN ACCEPTABLE STANDARD OF LIVING?


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J-A03032-15



         17. WAS THE TRIAL COURT IN ERROR WHEN, ON MORE
         THAN   ONE   OCCASION,   IT  RUSHED  [FATHER’S]
         TESTIMONY   AND    QUESTIONING  OF  WITNESSES,
         WARNING OF EXCESSIVE DELAYS IN SCHEDULING THE
         CONTINUANCE?

         18. DID THE TRIAL COURT COMMIT AN ERROR NOT ONLY
         WHEN IT FAILED TO RECOGNIZE THE MULTIPLE
         INSTANCES WHERE [MOTHER] HAS TAKEN SOLE ACTION
         TO MAKE MAJOR MEDICAL AND EDUCATION DECISIONS
         FOR THE CHILDREN WITHOUT INFORMING OR OBTAINING
         INPUT FROM [FATHER], BUT ALSO BY CONFUSING THE
         SITUATIONS WHICH WERE PRESENTED BY [FATHER] TO
         SUPPORT SUCH ALLEGATIONS?

         19. DID THE TRIAL COURT COMMIT AN ERROR WHEN IT
         DETERMINED THAT THE MISINFORMATION PROVIDED BY
         [MOTHER] ON MEDICAL INTAKE FORMS TO THREE (3)
         DIFFERENT MEDICAL PROVIDERS WAS GIVEN IN GOOD
         FAITH?

Father’s Brief at 5-11.

      As the custody trial in this matter was held in June of 2014, the Child

Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321 to 5340, is applicable. C.R.F.

v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the custody

evidentiary proceeding commences on or after the effective date of the Act,

i.e., January 24, 2011, the provisions of the Act apply).

      We apply the standard of review, as follows, in matters involving a

trial court’s decision on a contempt petition.

         When we review a trial court’s finding of contempt, we are
         limited to determining whether the trial court committed a
         clear abuse of discretion. This Court must place great
         reliance on the sound discretion of the trial judge when
         reviewing an order of contempt. This [C]ourt also has



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        stated that each court is the exclusive judge of contempts
        against its process.

G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013), (citations and quotation

marks omitted).

        To sustain a finding of civil contempt, the complainant
        must prove certain distinct elements by a preponderance
        of the evidence: (1) that the contemnor had notice of the
        specific order or decree which he is alleged to have
        disobeyed; (2) that the act constituting the contemnor’s
        violation was volitional; and (3) that the contemnor acted
        with wrongful intent.

P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012), appeal denied,

94 A.3d 1010 (Pa. 2014), (citation omitted).

     In custody cases, our standard of review is as follows:

           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.

           With any child custody case, the paramount concern is
        the best interests of the child. This standard requires a
        case-by-case assessment of all the factors that may
        legitimately affect the physical, intellectual, moral and
        spiritual well-being of the child.

G.A., 72 A.3d at 268-69 (quotation marks and citations omitted).


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J-A03032-15



      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

         Although we are given a broad power of review, we are
         constrained by an abuse of discretion standard when
         evaluating the court’s order. An abuse of discretion is not
         merely an error of judgment, but if the court’s judgment is
         manifestly unreasonable as shown by the evidence of
         record, discretion is abused. An abuse of discretion is also
         made out where it appears from a review of the record
         that there is no evidence to support the court’s findings or
         that there is a capricious disbelief of evidence.

Id. at 18-19 (quotation and citations omitted).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child. 23 Pa.C.S. § 5338.

Section 5328(a) sets forth the best interest factors that the trial court must

consider. 23 Pa.C.S. § 5328(a).

      Section 5323 of the Act provides for the following types of awards:

             (a) Types of award.—After considering the factors set
         forth in section 5328 (relating to factors to consider when
         awarding custody), the court may award any of the
         following types of custody if it in the best interest of the
         child:

            (1) Shared physical custody.

            (2) Primary physical custody.

            (3) Partial physical custody.

            (4) Sole physical custody.


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           (5) Supervised physical custody.

           (6) Shared legal custody.

           (7) Sole legal custody.

23 Pa.C.S. § 5323(a)(1)-(7).

     Section 5328(a) of the Act provides 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 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.

               (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. § 5328(a)(1)-(16).

      In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained

the following: “All of the factors listed in section 5328(a) are required to be

considered by the trial court when entering a custody order. . . . The record




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must be clear on appeal that the trial court considered all the factors. Id. at

822-23 (emphasis omitted).

      Section 5323(d) provides that a trial court “shall delineate the reasons

for its decision on the record or in open court or in a written opinion or

order.” 23 Pa.C.S. § 5323(d). Additionally, “section 5323(d) requires the

trial court to set forth its mandatory assessment of the sixteen [Section

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

notice of appeal.”    C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super.), appeal

denied, 70 A.3d 808 (Pa. 2013). Section 5323(d) applies to cases involving

custody and relocation.    A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super.

2013).

              In expressing the reasons for its decision, “there is no
          required amount of detail for the trial court’s explanation;
          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), appeal denied, [ ] 68 A.3d 909 ([Pa.] 2013).
          A court’s explanation of reasons for its decision, which
          adequately addresses the relevant factors, complies with
          Section 5323(d). Id.

A.V., 87 A.3d at 822-23.

      In Ketterer v. Seifert, 902 A.2d 533 (Pa. Super. 2006), this Court

stated,

          “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


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J-A03032-15


         preference must be based upon good reasons and his or
         her maturity and intelligence must also be considered.

Id. at 540 (citations omitted). In Johns v. Cioci, 865 A.2d 931 (Pa. Super.

2004), this Court opined: “We are mindful that the child’s preference is not

controlling . . . .” Id. at 943.

      Here, the trial court addressed all of the section 5328(a) factors in its

opinion entered on July 23, 2014. After a careful review of the entire record,

including the notes of testimony and exhibits, the applicable law, as well as

the arguments of the parties, we conclude that the thorough opinion by the

Honorable Merrill M. Spahn, Jr., entered on September 15, 2014 pursuant to

Pa.R.A.P. 1925(a), addresses the issues raised by Father and supports the

reasons for the trial court’s decision denying Father’s petition for contempt,

and denying his petition for modification of the existing custody order,

subject to the enumerated limited revisions.      We find ample, competent

evidence in the record to support the trial court’s decision regarding the

contempt and custody modification petitions. G.A., 72 A.3d at 269; P.H.D.,

56 A.3d at 706 n.7; C.R.F., 45 A.3d at 443. Thus, we find no error of law or

abuse of discretion. Accordingly, we adopt the trial court’s opinions entered

on September 15, 2014 and July 23, 2014 as our own.

      Order affirmed.




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J-A03032-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2015




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