F.I.R. v. E.R.R. (memorandum)

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J-S24025-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 F.I.R., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. E.R.R. Appellee No. 1563 WDA 2013 Appeal from the Order dated August 29, 2013, in the Court of Common Pleas of Butler County, Civil Division, at No(s): FC 10-90410-C BEFORE: BOWES, JENKINS, and FITZGERALD*, JJ. MEMORANDUM BY JENKINS, J.: FILED JULY 18, 2014 order awarding sole legal custody and primary physical custody of the 1999), T.R. (born in December of 2000), and N.R. (born in September of 1 to custody to Father in accordance with a schedule.2 We affirm. On June 1, 2010, Mother filed a complaint for divorce, and a final divorce decree has not been entered. On June 10, 2010, Father filed a complaint for custody alleging that Mother left the marital residence, took possession of the marital finances, and boarded a plane to the state of * 1 2 Former Justice specially assigned to the Superior Court. Mother and Father are parents to their emancipated children, Y.R. and J.R. See Child Custody Act, 23 Pa.C.S.A. §§ 5321- J-S24025-14 Washington with the Children. That same day, the trial court directed Mother to return the Children to Butler County in Pennsylvania. On June 24, 2010, the trial court entered an order directing Mother and Father to have shared legal and physical custody of the Children. custody and filed a counterclaim for primary custody. Following a custody conciliation hearing, the trial court entered an order on August 17, 2010, directing Mother and Father to continue to share custody of the Children on a week-to-week basis, and directing Mother and Father to undergo custody evaluation in 2010-2011, he found the Children were well behaved and recommended that shared custody should continue. On October 13, 2010, the trial court appointed a guardian ad litem for the Children. On September 30, 2011, the trial court directed Mother and Father to enroll in co-parenting counseling and to participate with the Children in family and individual counseling. On June 25, 2012, Mother and Father agreed to participate in Family Group Decision Making through Butler County Children and Youth Agency. On October 4, 2012, Mother filed a petition for special relief requesting that Mother, Father, and the Children should be re-evaluated by Dr. Bruce Chambers, and that a pretrial conference should be scheduled. On October 31, 2012, trial court directed Mother and Father to undergo custody re-evaluations with Dr. Chambers. -2 - J-S24025-14 Dr. Chambers performed an updated evaluation in 2012-2013, and found that issues emerged with Children acting disrespectful to Mother and her inability to manage the Children. Dr. Chambers found that Children are disrespectful to Mother because Father lets the Children do as they please Chambers recommended that one parent should be awarded sole legal custody and primary phys differences in raising the Children and their inability to communicate. Dr. Chambers concluded that Mother is better suited to have primary custody because she is able to provide stability for the Children, and that she is more On July 16, 2013, a custody trial commenced, which concluded on July 22, 2013. On August 29, 2013, the trial court awarded Mother sole legal custody and primary physical custody of the Children. On September 30, 2013, Father timely filed an appeal from the custody order entered on August 29, 2013, along with a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In his brief on appeal, Father raises the following issues: 1. Whether the [t]rial [c]ourt's [m]emorandum [o]pinion [and o]rder of [the trial c]ourt dated August 29, 2013, is supported by substantial evidence. -3 - J-S24025-14 2. Whether the [t]rial [c]ourt committed an error of law and/or an Abuse of discretion in the issuance of [the] [m]emorandum [o]pinion [and o]rder of [the trial c]ourt dated August 29, 2013? Initially, we observe that, as the custody hearings were held after Janu §§ 5321 to 5340, is applicable. Super. 2012) (holding that, C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. 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). 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 firstdeductions or inferences from its factual findings. Ultimately, 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. Id. at 443 (citation omitted). We have stated: [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 -4 - J-S24025-14 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) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). 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 abuse of discretion is not merely an error 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 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.A. §§ 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.A. § 5338. Section 5328 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: -5 - J-S24025-14 (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 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. education, family life and community life. (5) The availability of extended family . (7) The well-reasoned preference of the child, based on (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 (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. lability 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 -6 - J-S24025-14 buse 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 (15) The mental and physical condition of a party or member of a part (16) Any other relevant factor. 23 Pa.C.S.A. § 5328.3 See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). After a careful review of the entire record, including the notes of testimony, the applicable law, and the arguments of the parties, we conclude that the thorough opinion filed by the Honorable P.J. Thomas J. Doerr on August 29, 2013, addresses the issues raised by Father and supports the physical custody of the Children to Mother.4 Accordingly, we adopt the August 29, 2013 opinion of the trial court as our own. Order affirmed. Justice Fitzgerald concurs in result. 3 Effective January 1, 2014, the statute was amended to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and involvement with child protective services). 4 The opinion filed October 25, 2013 pursuant to Pa.R.A.P. 1925(a) relied on the August 29, 2013 order in making the custody determination. -7 - J-S24025-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/18/2014 -8 - Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM Circulated 06/24/2014 11:36 AM

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