Opinion
J-A03026-16 No. 1717 EDA 2015
04-25-2016
T.F.B., III Appellant v. A.L.B. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 6, 2015
In the Court of Common Pleas of Montgomery County
Domestic Relations at No(s): 2008-00570 BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J. MEMORANDUM BY MUNDY, J.:
Appellant, T.F.B., III (Father), appeals from the May 6, 2015 order granting in part, the petition for special relief filed by A.L.B. (Mother), wherein she requested, inter alia, that the parties' son, A.M.B.-B., be registered and enrolled in the Titus Elementary School in the Central Bucks School District effective the beginning of the 2015/2016 school year. After careful review, we affirm.
The trial court summarized the factual and procedural history relevant to this appeal, as follows.
The parties have been involved in custody proceedings since Father filed a divorce complaint in 2008. ... The most recent custody stipulation is dated March 3, 2010, and provides that the parties shall share legal and physical custody of [A.M.B.-B.] Specifically, Father has custody of [A.M.B.-B.] overnight on Mondays and Tuesdays, and Mother has
custody of [A.M.B.-B.] overnight on Wednesdays and Thursdays. The parties alternate custody of [A.M.B.-B.] on weekends from Friday after school through Monday morning.Trial Court Opinion, 8/13/15, at 1-2 (footnotes omitted).
The parties agreed to enroll [A.M.B.-B.] in Our Lady of Mercy School ("OLM") in Maple Glen, PA in January 2013 when [A.M.B.-B.] was in Kindergarten. At the time of [A.M.B.-B.]'s enrollment, Mother was living in Elkins Park, PA and Father lived in Harleysville, PA and OLM was roughly equidistant from both of their residences. Mother now resides in Warrington, PA and Father resides in Horsham, PA. Mother utilizes busing for [A.M.B.-B.]'s transportation to and from OLM on her custodial days, which involves [A.M.B.-B.] transferring to a second bus in the morning. Father or paternal grandmother drives [A.M.B.-B.] to and from OLM on Father's custodial days.
On March 18, 2014, Mother filed [pro se] a petition to modify [A.M.B.-B.]'s school requesting that [A.M.B.-B.] attend a "top rated public school." On June 16, 2014, upon obtaining counsel, Mother filed a petition for special relief which requested, inter alia, the [trial] court to permit [A.M.B.-B.] to attend the public school which serves Mother's residence, Titus Elementary School in the Central Bucks School District.
A.M.B.-B. attended kindergarten at OLM in the 2013/2014 school year. At the time of the subject proceedings, Child had nearly finished first grade at OLM in the 2014/2015 school year.
In her petition for special relief, Mother also requested that A.M.B.-B. undergo a developmental pediatric evaluation at the Children's Hospital of Philadelphia and be enrolled in individual counseling.
The trial court held a hearing on May 4 and 5, 2015, during which Mother, Mother's husband, C.R.D. (Stepfather), and Father testified. At the conclusion of the testimonial evidence, the trial court set forth its ruling and rationale on the record in open court. See N.T., 5/5/15 (p.m.), at 14-22. On May 6, 2015, by order, the trial court directed "that [A.M.B.-B.] shall be registered and enrolled in the Titus Elementary School in the Central Bucks School District effective the beginning of [the] 2015/2016 School Year." Trial Court Order, 5/6/15, at 1. Further, the order directed that Mother "shall cover the costs of any necessary before[] or after-school care during Father's custodial time." Id. at 1-2. The trial court denied Mother's request that A.M.B.-B. receive individual counseling. Id. at 2. On June 3, 2015, Father timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The trial court filed its Rule 1925(a) opinion on August 13, 2015.
In addition to Mother's petition for special relief, the hearing on May 4 and 5, 2015, was held with respect to Mother's and Father's cross petitions for contempt.
The trial court's ruling and rationale are by separate transcript in the certified record. Because they were made on the afternoon of May 5, 2015, we cite to them herein as N.T., 5/5/15 (p.m.).
The subject order also disposed of the parties' cross petitions for contempt. Specifically, the order granted, in part, and denied, in part, Father's petition for contempt against Mother. Father does not assert an error on appeal with respect to the court's denial of his petition.
On appeal, Father raises the following issues for our review.
I. Did the trial court abuse its discretion in entering an order requiring the child to cease attending a parochial school because of evidence outside the record; specifically that the [trial] court had heard news of parochial school closings?
II. Did the trial court abuse its discretion in considering evidence outside the record, specifically an internet search conducted by the [trial] court relating to the distance between the parties residences in determining whether to change [A.M.B.-B.]'s school[?]
III. Did the trial court abuse its discretion in considering evidence outside the record, specifically an internet search conducted by the [trial] court relating to potential child care services available at the proposed school, which ultimately became part of the court's order?
IV. Did the trial court abuse its discretion in entering an order changing the school [A.M.B.-B.] attends, where there was insufficient evidence to establish that a change of school is in [A.M.B.-B.]'s best interest?
V. Did the trial court abuse its discretion in entering an order changing [A.M.B.-B.]'s school, where the parents had agreed to the existing school selection and there was insufficient evidence to support an order to change the school?
VI. Did the trial court abuse its discretion in entering an order changing the school [A.M.B.-B.] attends without consideration of [A.M.B.-B.]'s success at the current school, the school's
credentials, and in the absence of evidence that the proposed school would better meet [A.M.B.-B.]'s needs?Father's Brief at 5.
We have reordered Father's issues for ease of disposition.
The scope and standard of review in custody matters is as follows.
[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing 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.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker , 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the
trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014)
R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court's conclusions. Ketterer v. Seifert , 902 A.2d 533, 539 (Pa. Super. 2006).
Instantly, we observe that the subject order did not affect the form of custody between the parties. Rather, it decided an independent and discrete issue raised by Mother in the petition for special relief. As such, the trial court was not required to consider and address the factors set forth in Section 5328(a) of the Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340. S.W.D. v. S.A.R., 96 A.3d 396, 403-404 (Pa. Super. 2014). Nevertheless, the trial court was required to consider A.M.B.-B.'s best interests. See generally id. at 403. We have explained, "[t]he best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child's physical, intellectual, moral, and spiritual wellbeing." Saintz v. Rinker , 902 A.2d 509, 512 (Pa. Super. 2006), citing Arnold v . Arnold , 847 A.2d 674, 677 (Pa. Super. 2004).
In this case, the trial court weighed the following factors in its determination: (1) the length of A.M.B.-B.'s bus ride between Mother's home and OLM; (2) the services provided by public schools; (3) the lack of importance Father placed on a "faith-based education" for A.M.B.-B.; and (4) the trial court's enrollment concerns at OLM. See N.T., 5/5/15 (p.m.), at 14-22.
In Father's first, second, and third issues, he argues that the trial court abused its discretion by considering evidence outside of the record in making its decision. Father's Brief at 29-34. It is well-established that "[a] trial court may not consider evidence outside of the record in making its determination." Ney v. Ney , 917 A.2d 863, 866 (Pa. Super. 2007) (citation omitted). Further, this Court may not "uphold a trial court's order on the basis of off-the-record facts." Id. (citation omitted).
Father first argues that the court erred to the extent it found that OLM does not have longevity based on news reports about the number of Catholic schools closing. Father's Brief at 29. Father references the trial court's inquiry during the hearing, as follows.
THE COURT: There's a lot of information on the news, as recently as this morning, about a number of Catholic schools that are being closed. Has there been any discussion about the longevity of this particular school?N.T., 5/4/15, at 242. Nevertheless, in its Rule 1925(a) opinion, the trial court responded that record evidence does exist "that OLM had recently faced the possibility of laying off teachers[.]" Trial Court Opinion, 8/13/15, at 15.
[FATHER]: [OLM] actually just closed registration. They're not one of the schools that are being discussed for closing.
It was just announced, actually, that they are adding another first grade to the school this year - or the class coming in; so that's positive for them, as well, because they are going from two to three first grades. The longevity of the school and its sustainability seem to be okay.
Indeed, the trial court provided the following rationale, in part, on the record in open court for its order changing A.M.B.-B.'s school. "[T]he information I received about concerns last year, enrollment changes, what that means for the school, was there going to be a decrease in teachers. If we're putting [A.M.B.-B.] in a place, we want him to have a place that he has longevity, that he is able to stay and grow." N.T., 5/5/15 (p.m.), at 17-18. The trial court further explained its rationale in its Rule 1925(a) opinion.
Father testified that although OLM was in its third year of operation, it had employed three different principals in that time span. Father also admitted that OLM sent correspondence home to parents informing them that if enrollment did not increase, teachers would be laid off and class sizes would be increased. Father further testified that [A.M.B.-B.]'s Kindergarten teacher had sent an email to all the parents in his class to inform them that enrollment was down and requesting the parents to write letters so she could maintain her employment. Father acknowledged that OLM did cut a few teachers but stated that enrollment had picked up and there were not any "significant" layoffs.Trial Court Opinion, 8/13/15, at 6-7 (internal citations omitted). Father's testimony on cross-examination supports the trial court's foregoing findings. See N.T., 5/5/15, at 41-47.
Significantly, Mother's counsel introduced into evidence a letter to parents from A.M.B.-B.'s kindergarten teacher, dated May 2, 2014, and a letter to all parents of children enrolled in the school from the OLM clerical staff, dated May 14, 2014, indicating enrollment concerns for the 2014/2015 school year, and the resulting potential need to lay off teachers. See N.T., 5/5/15, at Exhibits M-16, M-17. Father testified on cross-examination that OLM did "cut a few teachers." N.T., 5/5/15, at 45. However, on re-direct examination, Father testified that, to his knowledge, "one teacher had to be let go because of class numbers[,]" but "[a] few teachers left to pursue other careers or other job offerings." Id. at 100.
As such, the trial court's determination was based on enrollment concerns at OLM for the 2014/2015 school year that was acknowledged by Father in his testimony. We, therefore, reject Father's argument. Father's first issue fails.
In his second issue, Father argues the trial court erred in conducting a MapQuest calculation on the Internet relating to the driving distance and time between his home and OLM and Titus Elementary. Father's Brief at 31. However, the record reveals Father testified to the distance himself. On cross-examination by Mother's counsel, Father testified as follows.
Q. And so yesterday you testified it takes about five or ten minutes to get from your house to OLM?
A. Correct.
....
Q. So Titus is five and half miles from your house?N.T., 5/5/15, at 80, 82-82.
A. (No response).
Q. You Map Quested it?
A. I believe Map Quest said it was seven.
Q. Okay. So may be [sic] seven.
A. Right.
Q. If I told you I Map Quested it at five and a half, would you be surprised?
A. I'm sorry?
Q. If I told you that I Map Quested it and it was five and a half, would you be surprised?
A. No.
Q. Okay. So it's probably about a ten-minute ride?
A. Closer to 15.
Q. Okay. Closer to 15. But we recognize Titus starts later than OLM?
A. Correct.
Q. All right. So it's not so much the travel, it's the fact that it doesn't work so well with your work schedule? If you had to take him to Titus because Titus starts later, that would be a bigger problem for you on those days you take him?
A. I would be later to work, greatly later.
The trial court stated on the record in open court as follows.
The distance between your home according to a Map Quest check, Dad, your home and OLM and your home and Titus is very close. It is not a significant difference. One is 13 minutes, and one, I think is 11 minutes when I checked on Map Quest. Depending upon traffic, that can change probably 15 minutes for either one of them depending upon what the traffic is.N.T., 5/5/15 (p.m.), at 15. In its Rule 1925(a) opinion, the trial court further stated the following.
The record demonstrates that there was minimal dispute between the parties with respect to the distance and driving time from Father's home to Titus Elementary School. The parties agreed that the distance between Father's home and the two schools was very comparable.Trial Court Opinion, 8/13/15, at 13. Therefore, as Father's own testimony corroborated the trial court's finding, it was not in dispute, and the trial court did not err in considering the relative distances and length of travel times between schools.
In his third issue, Father argues that the trial court erred in gathering information on the Titus Elementary website regarding the school's before-care program. Father's Brief at 33. During the hearing, Father testified as follows on inquiry by the trial court.
THE COURT: Are you aware that Titus Elementary has a before-care program for early drop[-]offs?
[FATHER]: I'm not.
THE COURT: Understanding I went on their website that they have an early-care program where the child can be dropped off as early as seven o'clock in the morning. If you were able to drop [A.M.B.-B.] off earlier, would that assist with your transition?N.T., 5/5/15, at 103-104.
[FATHER]: If I had to drop [A.M.B.-B.] off, and that's what it took, and I could do it earlier, sure, but there would be expense figures into that, as well, though.
THE COURT: Let's presume you do not have any expense associated with that, would you still have the same objections?
[FATHER]: If I'm forced to put him in that school, I'd have no choice.
In its Rule 1925(a) opinion, the trial court responded to Father's assertion as follows, in part.
Although the availability of before[-]care for students would have assisted Father's transition, the [c]ourt did not consider this factor in its final determination. Thus, unlike Ney , [ supra ,] the [c]ourt's consideration of this information had no impact on the [trial c]ourt's ruling. The [trial] court was simply attempting to lessen the impact of the change upon Father, but always had to be mindful that the best interest of child was the paramount concern. Consequently, even if there was no before[-]care option, the [trial] court still would have made the same determination.Trial Court Opinion, 8/13/15, at 16 (citation omitted).
Upon thorough review of the trial court's rationale for the subject order placed on the record in open court, we agree that the existence of the before-care program at Titus Elementary was not a factor in the trial court's determination to change A.M.B.-B.'s school registration and enrollment. Therefore, we cannot conclude that the trial court committed reversible error. Father's third issue fails.
In his fourth issue, Father argues the record evidence is insufficient to establish that a change of school is in A.M.B.-B.'s best interests. Father's Brief at 9. Specifically, Father argues the trial court abused its discretion with respect to the factors, identified above, upon which the trial court based its decision. Id. at 12.
With respect to A.M.B.-B.'s bus ride between Mother's home and OLM, the trial court stated on the record in open court that a factor in its decision is that "it's a long bus drive" for A.M.B.-B. N.T., 5/5/15 (p.m.), at 14. The trial court further explained its reasoning as follows.
Mother testified that [A.M.B.-B.]'s bus ride in the morning is approximately one (1) hour and involves a transfer to another bus. Mother further testified that [A.M.B.-B.]'s bus ride home is approximately thirty (30) minutes. When asked by the [trial c]ourt why she did not simply drive [A.M.B.-B.] to school, she responded that her daughter's school schedule forces her to utilize bus transportation for [A.M.B.-B.].[] Father contended that the bus ride is only thirty (30) minutes in the morning, but acknowledged that [A.M.B.-B.] must transfer buses in the morning. Father drives [A.M.B.-B.] to school during his custodial periods and either he, his mother, or another party picks [A.M.B.-B.] up from
school. Father also testified that it takes him about five (5) to (10) minutes to drive to OLM and it would take about fifteen (15) minutes to drive to Titus Elementary School. Father explained that because the school Day at Titus Elementary starts about thirty (30) to forty-five (45) minutes later than OLM, dropping [A.M.B.-B.] off at Titus Elementary would severely impact his ability to get to work on time.Trial Court Opinion, 8/13/15, at 5 (citation to record omitted). Upon thorough review, Mother's and Father's testimony supports the trial court's findings.
Mother is remarried. She and Stepfather have one child, a female, who was age five and in kindergarten at Titus Elementary at the time of the subject proceedings. N.T., 5/4/15, at 13-14, 38.
We reject Father's assertion that the trial court abused its discretion to the extent it found that A.M.B.-B.'s bus ride in the morning from Mother's home to OLM is one hour. Indeed, the trial court did not make a finding with regard to the length of time of A.M.B.-B.'s morning bus ride. In addition, we discern no abuse of discretion by the trial court in finding that A.M.B.-B.'s bus ride during Mother's custodial periods is "long" based on the parties' testimony that A.M.B.-B. changes buses in the morning to OLM, and has, at a minimum, a 30-minute ride in both the morning and afternoon.
Father also asserts that the trial court "substituted a total one-hour bus ride and time in the gym at school on Mother's mornings at [OLM] for a total one-hour car ride and before-care program on Father's [custodial] mornings at Titus Elementary." Father's Brief at 15. We disagree.
Father testified that A.M.B.-B. arrives at OLM at approximately 7:30 a.m. during Mother's custodial days, and that the school day begins at 8:00 a.m. N.T., 5/4/15, at 201; N.T., 5/5/15, at 82. He testified that, on those mornings when A.M.B.-B. arrives approximately half an hour early, A.M.B.-B. waits in the gymnasium at OLM until the school day begins. N.T., 5/5/15, at 82. Father testified that bus transportation is not available from his neighborhood to Titus Elementary. N.T., 5/4/15, at 202. Further, Father testified that it would take him 15 to 20 minutes to drive A.M.B.-B. from his home to Titus Elementary. Id. He continued on direct examination as follows.
Q. [I]f [A.M.B.-B.] attended Titus and you had to drive him there in the morning, would you be able to with your work schedule?Id. at 203-204.
A. It would be very difficult. It would put a strain on the time I arrived at work.
When I take [A.M.B.-B.] to [OLM], it's on my way to work. I'm out the door quarter of eight, and I can drop him off. And pretty much where [OLM] is, ... It's central to a lot of roads. The Turnpike, 611, 309. I could be going anywhere from that point, and it works out well for me that way.
But to get to Titus at 8:30 or 8:45, that already has me way behind the eight ball, and I'm going North on 611. Depending on traffic, too, 611 can be a bear sometimes, but that would impact getting to work on time.
In his brief, Father states that he would need to drop A.M.B.-B. off at Titus Elementary approximately 45 minutes before the start of school so that he can get to work on time. Father's Brief at 15. We note that this would be at approximately 8:00 a.m., which is the time A.M.B.-B. started school at OLM. Based on the foregoing, we reject Father's assertion that the trial court "substituted a total one-hour bus ride and time in the gym at school on Mother's mornings at [OLM] for a total one-hour car ride and before-care program on Father's [custodial] mornings at Titus Elementary." Father's Brief at 15. We discern no abuse of discretion to the extent the trial court based its decision, in part, on a shorter commuting time for A.M.B.-B. in the morning and afternoon during Mother's custodial periods.
Further, we reject Father's assertion that the trial court abused its discretion by removing "[A.M.B.-B.] from a school where both parents had access to school bus transportation ... and ordered a new school for which Father does not have access to bus transportation." Id. Father relies on Fox v. Garzilli , 875 A.2d 1104 (Pa. Super. 2005), wherein this Court reversed an order denying the mother's request that the children, for whom she had primary physical custody, be permitted to attend school in her school district. In that case, bus transportation was not available from the mother's neighborhood to the school in the father's school district. We concluded in Fox that "since [the] [m]other has physical custody the majority of the time, we agree that the trial court should have given that factor weight when determining where the children should attend school." Id. at 1108. Instantly, we conclude that Fox is readily distinguishable where Father and Mother have equally shared physical custody for two overnights during every school week and on alternating weekends from Friday after school until Monday morning. As such, we discern no abuse of discretion by the trial court in not affording more weight to the lack of bus transportation from Father's neighborhood to Titus Elementary.
With respect to the services provided by public schools, the trial court stated on the record in open court as follows.
When I look at [A.M.B.-B.]'s evaluations, there's nothing in his evaluations - and I think it's important for you to hear this, mom - there's nothing in his evaluations that shows that he is anything but a
normal boy who sometimes has some focusing issues but is doing really well and has a great IQ and is doing well on his achievement tests.N.T., 5/5/15 (p.m.), at 15-17.
But when you look at his evaluations, [A.M.B.-B.] may have the need if the discrepancy gets more pronounced and his attention issues, instead of what happens with most little boys, begin to quell over time, and if they become more pronounced he may need services.
We know from the reports that dad showed us [A.M.B.-B.] was in an advanced reading group. They didn't have services for that directly at the school from school personnel [OLM]. They bring in someone from the MCIU [the Montgomery County Intermediate Unit] in order to provide those.
If you need help with attention issues, public schools have more resources to deal not only with small issues but if [A.M.B.-B.] continues to progress, if you look at his verbal scores, he had a 126 on his verbal IQ [Intelligence Quotient]. That's really high. I mean, automatically if your overall is a 130, it puts you in automatic range for most schools' gifted programs.
Those services are available to him in the public school, and your child seems to be the type of kid who will benefit from that access and the services that are available.
It concerns me that the availability of services through [OLM] are accessed through the MCIU, and while I give them credit for making sure they have services, because not every parochial or private school does that, it's not something - they don't have the same services the public school would have.
In its Rule 1925(a) opinion, the trial court explained as follows.
Mother acknowledged that [A.M.B.-B.] was excelling in many subjects but stated that he was also having difficulties in school. Report cards which [A.M.B.-B.] received from OLM consistently stated that [A.M.B.-B.]'s main weaknesses were "communication, active listening" and "effort and study skills." Mother testified that, to her knowledge, OLM was not doing anything to assist [A.M.B.-B.] in mastering those skills. Father testified that [A.M.B.-B.] excelled at reading and that although OLM did not have an in-house gifted reading program, they did provide [A.M.B.-B.] and other high-level readers with a reading specialist from the Montgomery County Intermediate Unit ("MCIU").Trial Court Opinion, 8/13/15, at 6. Upon review, we conclude the testimonial and documentary evidence supports the trial court's findings.
Specifically, Mother and Stepfather testified with respect to A.M.B.-B.'s inattentive behaviors while in their home during Mother's custodial periods. See N.T., 5/4/15, at 71-73, 159-161. Further, Mother introduced into evidence a developmental triage report from Einstein Healthcare Network dated August 8, 2014, which was shortly before A.M.B.-B. started first grade. The report noted that A.M.B.-B. had "mild attentional lapses." Developmental Triage Report, 8/8/14, at 1. In addition, Mother introduced into evidence an evaluation report from the Hatboro-Horsham School District dated March 9, 2015, when A.M.B.-B. was in first grade, which opined that A.M.B.-B. "exhibits some inattentive behaviors within the first grade classroom, but they do not adversely affect academic performance/achievement." Evaluation, 3/9/15, at 17.
Father rightly states that neither evaluation demonstrated that A.M.B.-B. required a gifted program or that he had a learning disability or developmental disorder. As such, Father argues the trial court's conclusion, that A.M.B.-B. will benefit from services at public school, is not supported by the record. Rather, Father argues the trial court's conclusion is impermissible speculation about A.M.B.-B.'s future needs. We disagree to the extent the trial court found that A.M.B.-B.'s current inattentive behaviors and high verbal IQ, which the record evidence adequately supports, would benefit from the services provided at public school as compared to OLM.
With respect to whether Father placed importance on a "faith-based education" for A.M.B.-B., the trial court stated as follows on the record in open court.
[Father], I understand and I, actually, agree with you that in light of everything [A.M.B.-B.] has in life, the fact that you're taking him to church and connecting him with God is probably going to be a thing that helps him or might be something that helps him moving forward.N.T., 5/5/15 (p.m.), at 17. The trial court further explained the following in its Rule 1925(a) opinion.
But I didn't hear you say that it was important for him to go to [OLM] because a faith-based education was important to you.
What I heard from you and mom is that it was convenient when you started putting him there...
With respect to the importance of a faith[-]based education for A.M.B.-B., Mother testified that she is
not Catholic and Father testified that he is Catholic, but stated that the academics were very important to him. Neither parent testified that they chose OLM due to an interest in faith[-]based education, nor did Father state this as a reason for [A.M.B.-B.] remaining at OLM. Instead, regarding faith, Father said that he thought it would be a good thing for [A.M.B.-B.] to have "a little bit of God in his life."Trial Court Opinion, 8/13/15, at 6 (citations to record omitted).
Father testified as follows on inquiry by the trial court.
THE COURT: Was your interest in having a faith-based school any consideration in choosing this school?N.T., 5/4/15, at 241-242. Based on the foregoing, we discern no abuse of discretion by the trial court in finding that Father chose OLM for A.M.B.-B. based primarily on the academics, and that faith, in general, is something that A.M.B.-B. enjoys and is beneficial for him. Based on the foregoing, Father's fourth issue fails.
[FATHER]: I liked [OLM.] [I]t was previously St. Alphonsus. I've known a lot of people. I grew up in the area. I knew a lot of people went to school there, a lot of people that belonged to the parish. Everybody spoke very highly of the school. The school and the academics are very important.
And the religious aspect of it, [A.M.B.-B.] is Catholic. He's baptized. He thoroughly enjoys his religion. He goes to church every Sunday ... that he's with me, he takes part in [M]asses. You know, he really likes it.
So that's a benefit to him, as well. It's a moral upbringing for him, and I honestly think, you know, I can look at a situation like this and say, well, Catholic, Christian, Jewish, whatever, a child in [A.M.B.-B.]'s situation and growing up with what he's dealt with this far and is probably going to have to deal with ... I think it's a great thing for him to have a little bit of God in his life, some direction.
We note, Father also argues that the record does not support the court's findings regarding enrollment concerns. Father's Brief at 22. We reject Father's argument based on our discussion related to Father's first issue on appeal.
In his fifth issue, Father argues the trial court abused its discretion in concluding that, "the totality of the factors considered outweighed any interest in school continuity." Father's Brief at 24. Father's argument is based on the following conclusion by the trial court in its Rule 1925(a) opinion.
The [trial c]ourt considered all of the evidence and testimony presented by both parties and made a judgment that it was in [A.M.B.-B.]'s best interest to attend Titus Elementary School. The [trial c]ourt considered [A.M.B.-B.]'s success at OLM, but in terms of [A.M.B.-B.]'s current and potential future needs, the [c]ourt determined that Titus Elementary School provides [A.M.B.-B.] the best opportunity to succeed. The totality of all the factors identified by the [trial c]ourt in making its decision outweigh any interest in maintaining continuity by keeping [A.M.B.-B.] enrolled in OLM.Trial Court Opinion, 8/13/15, at 10 (citation omitted). The crux of Father's argument is that the trial court abused its discretion by changing A.M.B.-B.'s school "due largely to the distance or bus ride duration on Mother's [custodial] mornings." Father's Brief at 26. Father relies on S.W.D., supra and R.S. v. T.T., 113 A.3d 1254 (Pa. Super. 2015), appeal denied, 117 A.3d 298 (Pa. 2015) in support of his argument.
In S.W.D., this Court affirmed an order directing that the child be enrolled in his mother's school district for kindergarten based on his father's school of choice, Harvest Baptist Academy, being a temporary arrangement. In addition, the trial court found that the distance from the father's home to the school in the mother's school district was the father's primary concern and was not "weighty enough to warrant attendance at Harvest Baptist Academy." S.W.D., 96 A.3d at 404. We conclude that S.W.D. is not controlling in the instant matter where the trial court based its decision on multiple factors, described above, in issuing the subject order and not only on the distance between Mother's home and OLM. Because the record evidence supports the trial court's findings, we discern no abuse of discretion. See A.V., supra at 820, citing R .M.G., Jr., supra at 1237 (stating that we defer to the trial court regarding the weight of the evidence).
In R.S., this Court vacated an order that modified an existing custody order that granted the parties shared physical custody during the week, by granting the mother primary physical custody and the father partial physical custody of the child during the school year, and the parties shared physical custody during the summer. The trial court based its physical custody decision on the amount of time the child would spend being driven to school by the father during his custodial periods. We concluded that the court abused its discretion by finding that the "[f]ather's time with [the] [c]hild should be limited based on the slight unpleasantness [the] [c]hild may experience as a result of a, at maximum, 35 to 45 minute car ride." R.S., supra at 1260. In contrast to R.S., the subject order in this case does not modify the existing physical custody order. Therefore, we conclude that R.S. is not applicable. Based on the foregoing, Father's fifth issue fails.
In his sixth issue, Father argues that the record does not support the court's conclusion that Titus Elementary would better serve A.M.B.-B.'s educational needs. Father's Brief at 28. Specifically, Father argues there was "little information about the specific programs at Titus Elementary and how they might better serve [A.M.B.-B.]'s needs." Id. We reject Father's argument.
As discussed above, the record supports the trial court's finding that A.M.B.-B. has a high verbal IQ. Father testified that OLM does not have a gifted program, but that A.M.B.-B. participates at OLM in an advanced reading group provided by MCIU. Further, the trial court concluded the "totality of all the factors identified by the [trial c]ourt in making its decision outweigh any interest in maintaining continuity by keeping [A.M.B.-B. enrolled in OLM." Trial Court Opinion, 8/13/15, at 10. See A.V., supra at 820 (stating "[t]he parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child[]"). Therefore, Father's final issue fails.
Based on the forgoing, we conclude Father's issues are devoid of merit. Accordingly, we affirm the trial court's May 6, 2015 order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016