S.B. v. A.K. (memorandum)

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J-A12006-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 S. B., Appellant v. A. K. (f/k/a A. B.), Appellee : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2221 EDA 2013 Appeal from the Order Entered June 28, 2013, In the Court of Common Pleas of Montgomery County, Civil Division, at No. 2010-26928. BEFORE: SHOGAN, STABILE and PLATT*, JJ. MEMORANDUM BY SHOGAN, J.: FILED JULY 15, 2014 pro se1 from the June 28, 2013 final custody 2 shared legal custody and -on- custody of the Children to five overnights in a two-week period, awarded each parent two non-consecutive weeks, and provided for a split of holidays *Retired Senior Judge assigned to the Superior Court. 1 2 The trial court filed a clarification order on August 7, 2013, which Father also challenges on appeal, and we address below. J-A12006-14 by agreement of the parties or proposals submitted to the court for decision. Order, 6/28/13, at ¶¶ 1 4. We affirm. The parties married in March 2008 and divorced in September 2012. They are the parents of E.B., born in December 2008, and A.B., born in July 2010. Father filed a custody complaint on March 20, 2010, requesting custody of E.B., as A.B. was not yet born. Following a custody hearing, the Honorable Carolyn T. Carluccio entered an order on May 11, 2011, granting Mother primary physical custody of E.B., and Father partial physical custody every other weekend with two overnights in each two week period. As a result of Mother relocating to Virginia before A.B. was born, custody of A.B. was controlled by a Virginia court order, which granted Mother sole legal and physical custody of A.B. Father unsuccessfully moved for reconsideration of then withdrew. The trial court set forth the subsequent procedural history of this matter as follows: On October 4, 2011, Plaintiff-Father filed a Petition to Modify the Custody order issued by Judge Carluccio on May 11, 2011. Among the relief requested by Plaintiff-Father was shared A.B. . . . We held a hearing on April 16, 2012. On that day, we entered an interim Order that increased the number of overnights the children would spend with Plaintiff-Father. We also included a provision that allowed Plaintiff-Father to spend one-on-one time with each child in an effort to allow PlaintiffFather to form an independent bond with each child. -2- J-A12006-14 We stated that we would review the case and conduct a phone conference around September 1, 2012 to determine whether the parties had agreed that the changes implemented in the April 16, 2012 Order should continue. (N.T., Order of 4/16/12, pp. 6-7). If either party had an issue with the interim Order, then we would schedule a status review hearing to occur sometime around later September or early October of 2012. On November 5, 2012, we conducted a status review hearing. We concluded the status review hearing on February 15, 2013.[3] Following a review of post-trial submissions, we issued our Custody Order on June 28, 2013. Plaintiff-Father filed a timely appeal, along with the required Concise Statement of Matters Complained of on Appeal, on July 29, 2013. Our Custody Order of June 28, 2013 was essentially the same as the Custody Order of April 16, 2012 in that we awarded Plaintiff-Father physical custody of the children for 5 overnights in a two-week period. Trial Court Opinion, 8/16/13, at 1 2 (original footnote omitted). On July 29, 2013,4 Father filed a timely appeal from the final custody order and a 3 At the hearing on February 15, 2013, Mother presented the testimony of ss-examination. counsel then questioned Father as on cross-examination, regarding inter alia, the p -custodial parent to communicate with the Children. N.T. 2/15/13, at 79 99, 147 148, 155 157. 4 The final day for Father to file an appeal was July 28, 2013, which fell on a Sunday. See (manner of taking appeal) shall be filed within 30 days after the entry of the -3- J-A12006-14 concise statement of errors complained of on appeal pursuant Pa.R.A.P. 1925(a)(2)(i) and (b), setting forth eighteen issues. to The trial court entered an opinion pursuant to Pa.R.A.P. 1925(a) on August 19, 2013, On June 18, 2013, prior to entry of the final custody order, Father filed -Custody Matter, Pursuant to on the delay in disposing of the custody case. The trial court denied the motion on June 28, 2013, in an order separate from the final custody order. Following entry of the final custody order, Father filed myriad petitions and motions. Father filed a petition to add a custody exchange location on July 5, 2013, and a petition to reinstate Skype communication between the children and parents on July 7, 2013. On July 9, 2013, Father filed a petition for injunctive relief, seeking to enjoin and restrain interference, intrusion, and harassment by Mother. On July 16, 2013, Father filed a of the joint legal custody provisions in the June 28, 2013 custody order. On July 25, 2013, Father filed two motions for sanctions against Mother: one for her failure to comply with Montgomery County Rule 1915.3 (Seminar for -4- J-A12006-14 procedures and ex parte fax communications with the judge. On July 26, 2013, Father filed a second petition for contempt, alleging that Mother was in willful contempt of the final custody order. He also filed a praecipe to attach numerous documents to the petition. Father filed a petition to adopt the p Father also filed a motion to compel Mother to comply with the prior order 5 for communication between the parties, as directed in the May 31, 2011 custody order. Then, on July 29, 2013, Father filed a petition to reconsider, amend, and rectify the final custody decision and order of June 28, 2013. entered a clarification order clarification order, the trial court addressed a custodial exchange location, cancelled a hearing scheduled for August 16, 2013. Order, 8/7/13, at ¶¶ 2 14. The next day, Father filed a petition to reinstate or reschedule a hearing On August 16, 2013, Father filed a motion to compel and enforce Mother to follow the order regarding the use of Our Family Wizard and all the 5 Our Family Wizard is an online service for managing divorce and custody divorced and separated households to communicate and organize their -us/ -5- J-A12006-14 provisions, including schedule alterations, in a prior custody order entered on May 31, 2011. On September 5, 2013, Father filed a motion to reconsider, in part, the order of clarification, pursuant to Pa.R.C.P. 1930.2(b) and Pa.R.A.P. 1701(b)(3). Father then filed a concise statement related to the clarification order on September 16, 2013. Finally, on September 20, 2013, the trial court filed its opinion with regard to (a) the clarification order, 2013 motion for a protective order.6 Father has also filed numerous motions with this Court since filing his appeal. In his brief on appeal, Father presents one issue for our review: Question: In the appeal of the final custody Decision and Order of June 28, 2013, the primary issue to be resolved is the physical custody arrangements children, [E.B. and A.B.], their holiday schedule with their parent(s), and the justification of why such grossly [sic] delay for the final decision was made. Is the Plaintiff/Father entitled to a joint (50/50) physical custody, where the trial [c]ourt exceedingly and grossly abused its discretion and/or misapplied the law by omitting, ignoring or failing to abide by the law/statues [sic] and relevant case law, and simply favoring Mother by awarding primary physical custody to the [m]other, and evidently contrary to 23 Pa.C.S.A. §5328, §5327, §5323, when circumstances, testimony and evidence presented [existed] to support full justification of awarding joint (50/50) physical custody of the children to the [f]ather/Plaintiff? Has the trial [c]ourt exceedingly abused its discretion, ignored the law and did not follow the provisions of the [sic] Chapter 1915, mainly of Pa.R.C.P. 1915.4, 1915.9, 1915.10, 1915.13? The lower [c]ourt disagreed, ignored and did not address all the 6 -6- J-A12006-14 failure. See JRM v. JEA, 33 A.3d 647, Pa. Super (2011) and MJM v. MLG, 63 A.3d 331, 334 Pa Super (2013). On appeal, Father asserts that this Court should reverse the final custody order and direct the trial court, on remand, to enter a custody order support of his position, Father analyzes the eighteen issues he raised in his concise statement filed on July 29, 2013, relating to the final custody order. 42. He also analyzes the eight issues he raised in his concise statement filed on September 16, 2013, relating to the clarification 3 45. Insofar as each of these twenty-six issues trial court did not address all of the questions involved in the custody appeal, we will consider his twenty-six issues preserved for appellate review. Compare Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not raised in statement of questions involved and preserved in concise statement is deemed waived); Pa.R.A.P. 2116(a). Initially, we observe that, because the custody hearings at issue took -7- J-A12006-14 §§ 5321 to 5340, is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012). Next, we identify our standard of review in custody cases: 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 no deductions 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 that: [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) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). Moreover: [a]lthough we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating 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 -8- J-A12006-14 of evidence. M.A.T. v. G.S.T., 989 A.2d 11, 18 19 (Pa. Super. 2010) (en banc) (quotation and citations omitted). In any custody case decided under the Act, the paramount concern is the best interest of the child. See With that concern in mind, the Act provides a list of factors the trial court must consider when awarding custody: § 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 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) education, family life and community life. (5) (6) The availability of extended family. ionships. -9- J-A12006-14 (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. (12) 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 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 (16) Any other relevant factor. 23 Pa.C.S.A. § 5328.7 Additionally, the Act provides ten factors to consider with regard to relocation of a child. 23 Pa.C.S.A. § 5337(h); see E.D. v. M.P., 33 A.3d 73, 80 81 n.2 (Pa. Super. 2011) (discussing ten factors for 7 Effective January 1, 2014, the Act was amended to include an additional factor: providing for consideration of child abuse and involvement with child protective services. 23 Pa.C.S.A. § 5328(a)(2.1). -10- J-A12006-14 giving weighted consideration to those factors affecting the ). all of the relevant factors listed in sections 5328(a) (regarding best interest of child) and 5337(h) (regarding relocation) of the Act. We reiterate that the trial court must consider both the lists of factors in sections 5328(a) and 5337(h) where it is modifying an award of custody and a relocation is involved. A.V. v. S.T., 87 A.3d 818, 824 (Pa. Super. 2014). Here, the trial court analyzed the section 5328(a) best-interest factors in its June 28, 2013 custody decision, and in its August 19, 2013 opinion. After a thorough review of the certified record, the relevant case law, and trial court in response t decision and its August 19, 2013 opinion. As for the relocation factors of section 5337(h), the trial court found that the parents live within a few minutes of each other in Upper Merion Township. Custody Decision and Order, 6/28/13, at 4, ¶ 11. The trial court ustodial time in its April 16, 2012 interim order. Trial Court Opinion, 8/19/13, at 4. Moreover, the trial -11- J-A12006-14 of the April 16, 2012 interim custody order. Id. There was no evidence of any relocation after entry of the interim order. Thus, section 5337(h) was not applicable. Upon review, we discern no error or abuse of discretion in the trial of consideration of the relocation factors listed in section 5337(h). Thus, to award shared fifty-fifty physical custody for the parties under its application of section 5328(a) and section 5323. As stated above, section 5328 lists the best-interest factors, whereas section 5323 of the Act provides for the following types of awards: (a) Types of section 5328 custody), the custody if it is award. After considering the factors set forth in (relating to factors to consider when awarding court may award any of the following types of in the best interest of the child: (1) Shared physical custody. (2) Primary physical custody. (3) Partial physical custody. (4) Sole physical custody. (5) Supervised physical custody. (6) Shared legal custody. (7) Sole legal custody. -12- J-A12006-14 23 Pa.C.S.A. § 5323. Here, the trial court awarded Mother primary physical custody and Father partial physical custody. We have reviewed the reasoning set forth in -fifty physical custody, the award of primary physical custody to Mother, and the holiday-split schedule. After a careful review of the record, including the testimonial evidence, we conclude that the record contains sufficient competent, clear and convincing rendering the fin to the section 5238 best-interest factors were not unreasonable in light of the sustainable findings of the trial court. C.R.F., 45 A.3d at 443. Thus, we discern no error of law in the trial co section 5328(a) factors. Furthermore, we discern no error or abuse of the physical custody to Father, and a holiday/split schedule agreed to or proposed by the parties. Pa.R.C.P. 1915.4 by taking too long to decide this custody matter. Rule 1915.4 provides for the prompt disposition of custody cases, as follows: -13- J-A12006-14 Rule 1915.4. Prompt Disposition of Custody Cases * * * (d) Prompt Decisions. be entered and filed within 15 days of the date upon which the trial is concluded unless, within that time, the court extends the date for such decision by order entered of record showing good cause for the extension. In no event shall an extension delay the entry of the conclusion of trial. Pa.R.C.P. 1915.4 (emphasis supplied). The trial court provides the following explanatio argument: In his final issue, Plaintiff-Father argues that we failed to comply with Pa.R.C.P. 1915.4. This rule relates to prompt disposition of custody cases. At the conclusion of the hearing on February 15, 2013, the parties requested time to submit post-trial memoranda after the transcripts were completed. We granted this request. The transcript of the February 15, 2013 hearing and the Order portion of the April 16, 2012 hearing were completed on March 6, 2013 and March 29, 2013, respectively. Plaintiff-Father submitted his post-trial memorandum on April 11, 2013; Defendant-Mother submitted her post-trial memorandum on May 13, 2013. On June 13, 2013, PlaintiffFather filed a response to DefendantAs we entered our decision on June 28, 2013, we have complied with Pa.R.C.P. 1915.4. Trial Court Opinion, 8/16/13, at 7 (italics added). In his brief on appeal, Father claims the trial court justified its delay in filing its decision by misrepresenting and misstating that the parties requested the opportunity for post-trial submissions at the February 15, -14- J-A12006-14 35. Our review of the transcript of the February 15, 2013 proceedings reveals that opportunity for post-trial memoranda after the completion of the transcripts at 181 183. The trial court then instructed counsel for the parties to agree Id. Thus, we agree with the trial court that Father has waived any claim of delay pursuant to Pa.R.A.P. 1915.4.8 challenge to the clarification order. Father asserts that the final custody order is inconsistent with, and contrary to, the reasoning [for its custody decision] until the appe Brief at 31 (quoting M.P. v. M.P., 54 A.3d 950, 955 956 (Pa. Super. 2012)). We disagree. 8 Even if Father had preserved this argument, we would conclude that it its decision more than forty-five days after the conclusion of the February 15, 2013 hearing. Rather, Father benefited from the delay because his counsel had an opportunity to submit a post-trial memorandum and argue on his behalf with the benefit of completed transcripts. Throughout this period, Father continued to exercise partial physical custody of the Children in accordance with the April 16, 2012 interim order. -15- J-A12006-14 contention that the trial court failed to set forth its reasoning until after it filed its final custody order. The trial court included a detailed decision with the final custody order in which it discussed all of the section 5328(a) factors. Accord A.V., 87 A.3d at 822 823 (stating that under section explanation, only that enumerated factors are considered and that custody decision is based on those considerations); C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013) (stating that section 5323(d) requires trial court to set forth its mandatory assessment of section 5328(a) factors prior to deadline by which litigant must file notice of appeal). In rendering its clarification order, the trial court was within its jurisdiction to clarify the final custody order with regard to the exchange location and the use of Skype, which had been subjects of the hearing on February 15, 2013.9 Pa.R.A.P. 1701(b)(1). The clarification order was not a custody modification order. Thus, there was no need for the trial court to address the section 5328(a) factors in that order. See M.O. v. J.T.R., 85 A.3d 1058, 1063-1064 (Pa. Super. 2014) (holding that trial court need not 9 that the trial court erred in its June 28, 2013 order by omitting the provision for Skype communication between the Children and the non-custodial parent. The trial court found that its clarification order rendered this issue moot. See Trial Court Opinion, 8/16/13, at 7. -16- J-A12006-14 address section 5328(a) factors where it is not affecting type of custody and, therefore, not modifying custody award). Based on the foregoing, we discern no error or abuse of discretion in reasoning of the tria to the clarification order. Thus, we affirm the clarification order on the basis Lastly, we address the numerous motions Father has filed in this Court, asking us to direct the trial court to rule on outstanding petitions, to take judicial notice of facts Father does not disclose, and to publish our decision in this matter.10 motions. In sum, we affirm the final custody order, as clarified in the -reasoned June 28, 10 Our docket shows seven outstanding motions: (1) Application Pursuant to Pa.R.A.P. 1701(b)(5) to Direct Trial Court to Rule on Time-Sensitive Pending Petition for Holiday Split, 3/5/14; (2) Application Pursuant to Pa.R.A.P. 1701(b)(5) to Direct Trial Court to Rule on Pending Petition for Injunctive Relief (Protective Order), 3/13/14; (3) Application Pursuant to Pa.R.A.P. 1701(b)(5) to Direct Trial Court to Rule on Pending 2/25/14 Motion to Reconsider, 3/19/14; (4) Application Pursuant to Pa.R.A.P. 1701(b)(5) to Direct Trial Court to Rule on Pending Petitions for Contempt and Motions for Enforcement and Compel Mother Compliance of Provisions of the Orders, 3/26/14; (5) Application Pursuant to Pa.R.A.P. 1701(b)(5) to Direct Trial Court to Rule on January 9, 2014 Petition Relating to Schooling for 20142015+ Year(s), 4/3/14; (6) Judicial Notice of Adjudicative Fact, 4/7/14; (7) Application/Requests to Designate Case Decision as Precedent/Precedential and to Publish (Opinion), 4/7/14. -17- J-A12006-14 2013 custody decision, August 19, 2013 opinion, and September 20, 2013 opinion. We direct the parties to attach a copy of those decision to this outstanding motions are denied. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2014 -18-

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