L.G.M. v. S.I.M. (memorandum)
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J-S04045-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA L.G.M. Appellee v. S.I.M. Appellant No. 2534 EDA 2012 Appeal from the Order Entered August 22, 2012 In the Court of Common Pleas of Northampton County Domestic Relations at No(s): C-0048-CV-2011-11150 BEFORE: STEVENS, P.J., GANTMAN, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J. Filed: February 8, 2013 S.I.M. ( Father ) appeals from the order of the Court of Common Pleas of Northampton County denying his petition for modification of a custody order. After our review, we find no error or abuse of discretion and we affirm the order, in part, on the opinion of the Honorable Emil Giordano. L.G.M. ( Mother ) and Father are the parents of two minor children, ages seven and four. Following an expedited custody conference, the court entered an interim order, which granted the parties shared legal and physical custody of the children, and certified the matter for trial. Thereafter, Mother filed a petition for special relief seeking primary physical custody, which the court denied without prejudice. Following trial, on August 22, 2012, the court entered an order, substantially unchanged from the interim order, granting the parties shared J-S04045-13 legal and physical custody of the children on a week-on/week-off basis. Father filed a motion for reconsideration, which the court denied, and this appeal followed. Father raises four issues for our review: 1. Did the trial court err in not offering its reasons for its order of court on the record? 2. Did the trial court err in failing to find that Mother s testimony was not credible? 3. Did the trial court err in maintaining the status quo and awarding continued shared custody between parties who cannot cooperate? 4. Did the trial court err in failing to award primary custody to Father? Initially, we note that the custody-related conference was held on April 17, 2012, and, therefore, the new Child Custody Act ( Act )1 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). When reviewing a custody order, our scope of review 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, and with regard to issues of credibility and weight of the evidence, we must defer to the trial judge who viewed and assessed the witnesses first-hand. However, ____________________________________________ 1 Pennsylvania s new child custody law, Act 112, has been codified at 23 Pa.C.S.A. §§ 5321-5340. -2- J-S04045-13 this Court is 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., 45 A.3d at 443 (citation omitted). This Court has stated that the discretion 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. Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). Additionally, we recognized that 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. Id. In his first issue, Father argues that the court erred in failing to give reasons on the record for its August 22, 2012 order. To support this claim, Father cites to section 5323(d) of the Domestic Relations Code, which provides: (d) Reasons for Award.- The court shall delineate the reasons for its decision on the record in open court in or in a written opinion or order. 23 Pa.C.S.A. § 5323(d) (emphasis added). As the statutory language illustrates, this requirement is mandatory. See Oberneder v. Link -3- J-S04045-13 Computer Corp., 696 A.2d 148, 150 (Pa. 1997) (explaining that, by definition, shall is mandatory, so there is no room to overlook [a] statute s plain language to reach a different result ). The reasoning behind this requirement is twofold; a parent should know the reasons for the trial court s order without having to file an appeal, and this Court requires reasons for the decision in order to conduct a comprehensive appellate review. The statutory language, however, also makes clear that the court s reasons may appear either on the record or in a written opinion or order. Here, Judge Giordano has written a comprehensive opinion analyzing the statutory factors and testimony, and the weight to be accorded each, and outlining the reasons for the shared custody award. Additionally, we distinguish M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012), which held the trial court erred in failing to give reasons for its order until mother filed an appeal and the court filed a Pa.R.A.P. 1925(a) opinion. In M.P., mother had primary physical and sole legal custody of the child; father had supervised visitation for two hours each week. Id. at 951. Mother, who had been born and raised in Ecuador, wanted to take the child to Ecuador for three weeks for a family visit. Id. Because father refused to sign a document allowing the child to travel to Ecuador with mother, mother required a court order and thus filed a petition for special relief. The court denied mother s petition, but it gave no reasons for its order until after mother appealed. Id. at 952. -4- J-S04045-13 In our decision reversing the order, we emphasized that mother had sole legal custody of the child, and, therefore she was responsible for major decisions regarding the child. Id. at 954. Additionally, we pointed out that for the eighteen months preceding the hearing on mother s petition, father had not exercised his right to supervised visits. Id. We concluded, therefore, that the court s order was inconsistent with its acknowledgment that mother had sole custody, and, therefore, the court had abused its discretion in denying mother s petition. Id. at 955. Further, the trial court had relied on information obtained from internet websites about The Hague Convention and Ecuador s noncompliance in previous years. Id. at 954. Mother was unaware of this off-the-record information until after she appealed, and, therefore, had no opportunity to respond to it prior to the court s order. We stated: Even if we were to conclude that the court could take judicial notice of the information regarding the Hague Convention pursuant to Pa.R.E. 201 ( Judicial notice of adjudicative facts ), Mother was unaware that the court relied on this information until after she filed the appeal in this matter. Pursuant to Pa.R.E. 201(e), Mother was entitled to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. Id. at 955. Here, there is no argument that the court s order is inconsistent with the award of shared custody. Further, and more to the point with respect to the section 5323(d) mandate, Father makes no claim that the court relied on -5- J-S04045-13 information outside the record. Thus, M.P. is clearly distinguishable and we conclude that Father s reliance on that case is misplaced. Father s second issue on appeal is waived as he failed to present it in his Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. See Pa.R.A.P. 1925(b)(4)(vii) ( Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived. ); see also Pa.R.A.P. 302(a) ( Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. ). In any event, with regard to issues of credibility and weight of the evidence, this Court must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. M.P., 54 A.3d at 953, citing Durning v. Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011) and A.D. v. M.A.B., 989 A.2d 32, 35 36 (Pa. Super. 2010). With respect to Father s remaining claims, we rely on Judge Giordano s Rule 1925(a) opinion. Having reviewed the parties briefs on appeal, the certified record, and relevant case law, all in light of our standard of review, we find no basis upon which to disturb the trial court s order granting the parties shared legal and physical custody. We therefore adopt the thorough analysis provided in Judge Giordano s opinion to affirm the custody order. See Trial Court Opinion, 10/17/2012, at 5-10 (applying relevant statutory factors for determining custody, court found both parents have strong relationships with children and both parents were unwilling to encourage frequent contact with the children and the other party, therefore, court -6- J-S04045-13 found it was in children s best interest to have shared custody between both parents). We instruct the parties to attach a copy of Judge Giordano s opinion in the event of further proceedings. Order affirmed. -7-
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