Opinion
J-S38031-15 No. 295 MDA 2015
07-17-2015
H.M.M.H., Appellee v. C.E.A., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered on January 14, 2015 in the Court of Common Pleas of Lancaster County, Civil Division, No. CI-09-15535 BEFORE: WECHT, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
C.E.A. ("Father") appeals from the Order granting shared legal custody of L.A.M.-H. ("Child"), born September 11, 2008, to Father and H.M.M.H. ("Mother"), and primary physical custody of Child to Mother. We vacate the Order and remand for further proceedings.
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt herein for purposes of this appeal. See Trial Court Pa.R.A.P. 1925(a) Opinion, 3/16/15, at 1-5.
On appeal, Father raises the following issues for our review:
1. Whether the [trial] court erred in its application of the factors under 23 Pa.C.S.A. § 5328 in determining the best interest of [C]hild when it reduced [Father's] custodial time with [C]hild?Brief for Father at 6.
2. Whether the [trial] court erred in its application of the factors under 23 Pa.C.S.A. § 5328 when it did not properly review the factors to determine whether the individual factors weighed in favor of a party?
3. Whether the [trial] court erred in determining that [Father] could not properly pick up [] Child because of his back problems and wrist problems?
In custody cases,
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.C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Additionally,
[t]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.Ketterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
In any custody case decided under the Child Custody Act ("Act"), the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5328(a), which sets forth a list of sixteen factors that the trial court must consider when making a "best interests of the child" analysis for a custody determination, provides as follows:
See 23 Pa.C.S.A. §§ 5321 et seq. Because the custody trial was held in December 2014, the Act applies to this case. See C.R.F., 45 A.3d at 445 (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).
§ 5328. Factors to consider when awarding custody23 Pa.C.S.A. § 5328(a).
(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.
(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 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.
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. Id.; see also E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011). When deciding a petition to modify custody, a court must conduct a thorough analysis of the best interests of the child based on the relevant section 5328(a) factors. E.D., 33 A.3d at 73, 80. "All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order." J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).
Moreover, section 5323(d) mandates that, when the trial court awards custody, it "shall delineate the reasons for its decision on the record in open court or in a written opinion or order." 23 Pa.C.S.A. § 5323(d). The trial court may not merely rely upon conclusory assertions regarding its consideration of the section 5328(a) factors in entering an order affecting custody. See M.E.V. v. F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014).
As Father's first and second issues are related, we will address them together. Father contends that the trial court's analysis of the section 5328(a) factors does not support a reduction of his custodial time with Child. Brief for Father at 13. Rather, Father asserts, the trial court's analysis suggests that (1) it had no concerns regarding the appropriateness or level of care provided by Father; and (2) both parents provide an equal level of care for Child during their respective custodial periods. Id. at 13-14. Father claims that the trial court's decision to reduce his custodial time with Child is inconsistent with its analysis of the section 5328(a) factors. Id. at 14. Although Father concedes that the trial court articulated its "perceived concern" regarding his drowsiness when taking prescription medications, and his inability to pick up Child due to his wrist and back problems, Father contends that the trial court's analysis does not include a determination that these issues affect Father's ability to adequately care for Child, or that Child is unsafe in Father's care. Id. Father argues that the trial court's decision to grant him custodial time in the summer, in an amount equal to Mother's custodial time, rebuts any presumption that he is unfit to care for Child because of his use of prescription medication and his wrist and back problems. Id. Finally, Father contends that the trial court did not explain the application of the section 5328(a) factors to the specific facts and circumstances of the case, and failed to provide any meaningful explanation for its decision to decrease Father's custodial time with Child. Id. at 15-16.
Our review of the record discloses that the trial court entered a custody Order on January 22, 2013, wherein it granted Father partial physical custody of Child on alternating weekends from Saturday at 9:00 a.m. until Monday at 9:00 a.m., with an additional two and one half days of physical custody of Child per week. See Trial Court Order, 1/22/13, at 2 (unnumbered). On July 2, 2014, Father filed a Petition for Modification of the January 22, 2013 custody Order, seeking additional custodial time with Child. On October 6, 2014, the trial court entered a temporary custody Order in which it modified Father's partial physical custody of Child to "alternate weekends [] from Wednesday after school until Sunday at 6:00 p.m." See Trial Court Order, 10/6/14, at 2. On January 14, 2015, following a custody trial, the trial court modified Father's physical custody during the school year to "every other weekend from Friday after school until Monday at school[,]" and during the summer "on a weekly rotating basis from Sunday at 6:00 p.m. to the following Sunday at 6:00 p.m." See Trial Court Order, 1/14/15, at 2.
The Order defined a "day," for purposes of custody, as 9:00 a.m. to 8:00 p.m., but also specified that "Father shall have two (2) overnight periods of weekday custody." See Trial Court Order, 1/22/13, at 2 (unnumbered).
The trial court made no ruling at the conclusion of the custody trial, nor did it discuss the section 5328(a) factors on the record. See N.T., 12/19/14, at 145. Rather, the trial court indicated that it would issue an order setting forth its custody determination. See id.
Troublingly, in relation to its most recent modification of Father's custodial time with Child, the trial court indicated that it was "not bound to address the sixteen [section 5328(a)] factors in determining [Child's] best interest." See Trial Court Opinion 1/14/15, at 3 (unnumbered); see also Trial Court Pa.R.A.P. 1925(a) Opinion, 3/16/15, at 6. In arriving at this determination, the trial court relied on A.V. v. S.T., 87 A.3d 818, 823-24 (Pa. Super. 2014).
In contrast to these statements, the trial court entered a pretrial Order on November 20, 2014, in which it acknowledged that, during the upcoming custody trial scheduled for December 19, 2014, "[t]he [trial c]ourt is required to consider all of the relevant child custody factors as set forth in 23 Pa.C.S.A. § 5328(a)."
Here, Father's Petition for Modification compelled the trial court to decide which physical custody arrangement was in Child's best interest, squarely implicating an award of a form of custody under section 5323(a), and requiring the trial court to consider all of the section 5328(a) factors. See S.W.D. v. S.A.R., 96 A.3d 396, 406 (Pa. Super. 2014) (holding that a father's petition to ratify the informal custody arrangement between the parents constituted a request to change the form of physical custody and, therefore compelled the trial court to consider all the section 5328(a) factors). The trial court's reliance upon A.V. implicates its mistaken belief that, because the January 14, 2015 custody Order did not change the type of custody previously awarded to Father (i.e., partial physical custody), the trial court was not required to consider the factors set forth in section 5328(a). Such an interpretation is incorrect, and contravenes the plain language of section 5328(a), which requires the trial court to determine the best interest of the child by considering all relevant factors "[i]n ordering any form of custody[.]" 23 Pa.C.S.A. § 5328(a) (emphasis supplied); see also E.D., 33 A.3d at 73, 80 (holding that, when deciding a petition to modify custody, a trial court must conduct a thorough analysis of the best interests of the child based on the relevant section 5328(a) factors).
Section 5323(a) identifies the types of custody that a trial court may award "after considering the factors set forth in section 5328 ." 23 Pa.C.S.A. § 5323(a) (emphasis supplied).
The trial court also relied on M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super. 2014), wherein the Court held that the trial court's modification of the existing custody order, which did not change the underlying award of custody but merely provided that father was permitted to work during three of his summer vacation weeks with children, did not directly implicate section 5328(a) or require the trial court to address the section 5328(a) factors. We conclude that M.O. is inapposite, as the modification at issue in that case did not involve any award of custody. See A.V., 87 A.3d at 824 n.4.
Because the trial court was ruling on Father's "request to change the form of physical custody[, it was,] therefore, bound to decide whether the prior [O]rder remained in Child's best interest." S.W.D., 96 A.3d at 406. Accordingly, the trial court's failure to address the 5328(a) factors constitutes an abuse of discretion. Id. at 407. We are therefore constrained to vacate the trial court's January 14, 2015 Order, and remand for application of the section 5328(a) best interest factors, and further proceedings, if necessary.
Due to our disposition of Father's first two issues, we need not address his remaining issue.
Order vacated; case remanded for further proceedings; jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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