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2019 PA Super 216

C.M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

M.M. : No. 1799 MDA 2018

Appeal from the Order Entered October 15, 2018

In the Court of Common Pleas of Northumberland County Civil Division at

No(s): CV -16-1076

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

OPINION BY SHOGAN, J.: FILED JULY 12, 2019

C.M. ("Mother") appeals from the October 15, 2018 order denying her

petition for modification of a custody order.' After careful review, we vacate

and remand.

Mother and M.M. ("Father") are the parents of I.M. ("Child"), who was

born in January of 2014. The underlying custody action was initiated by

Mother pro se in June of 2016, when Child was two years old. Mother asserted

that Father "has not been a constant in [Child's] life," and she requested an

award of primary physical custody. Custody Complaint, 6/22/16, at '11 7.

' The October 15, 2018 order also denied Mother's petition for contempt.

Order, 10/15/18, at 111. However, Mother has not challenged that ruling on

appeal. Accordingly, we limit our discussion to the trial court's decision on the

petition for modification of custody.

Retired Senior Judge assigned to the Superior Court.
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Following a hearing, the trial court granted Mother and Father shared legal

custody, Mother primary physical custody, and Father supervised physical

custody on alternating Saturdays for four to five hours.2 Order, 12/20/16, at

III 1-3. Thereafter, the parties participated in custody conciliation

conferences, which resulted in agreed -upon interim orders maintaining shared

legal custody and reducing Father's supervised physical custody to one

Saturday every four weeks for no more than five hours.3 See Interim Orders

9/27/17, 1/24/18 (providing Father "supervised periods of partial physical

custody once every four weeks" with Mother supervising).

2 Specifically, with respect to Father's award of custody, the order provided:

3. Defendant, Father, shall have PARTIAL PHYSICAL CUSTODY.

Father shall have supervised visitation with the minor child

every other Saturday for 4 to 5 hours beginning December 31,

2016. Father shall also have a visit on January 28th for 3 hours.

The supervision shall be by the mother of the child. . . . Order, 12/20/16, at '11 3 (emphasis added). The Custody Act, 23 Pa.C.S.

§§ 5321-5340 ("the Act"), defines "partial physical custody" as "The right to

assume physical custody of the child for less than a majority of the time." 23

Pa.C.S. § 5322. However, the Act does not include supervised visitation,

or any sort of visitation, as a type of custody. See 23 Pa.C.S. § 5323(a)

(defining the types of custody). Rather, the Act defines supervised physical

custody as "Custodial time during which an agency or an adult designated by

the court or agreed upon by the parties monitors the interaction between the

child and the individual with those rights." 23 Pa.C.S. § 5322(a). Therefore,

we conclude that pursuant to the December 20, 2016 order, Father's custody

award was supervised physical custody.

3 Mother supervised Father's physical custody in this case.

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Mother filed a petition for modification of custody on April 23, 2018.

Mother alleged that Father was inconsistent in exercising supervised physical

custody and that he has brought "several partners" around Child. Petition for

Modification, 4/23/18, at ¶ 3. Mother requested the trial court to award her

"full legal custody," as opposed to shared legal custody as had been ordered

in prior orders. Id. at ¶ 4. Following a custody conciliation conference, the

court issued an agreed -upon interim order filed on June 7, 2018, granting

Mother sole legal custody but directing her to inform Father of all legal custody

decisions. Order, 6/7/18. The interim order maintained Father's supervised

physical custody one Saturday every four weeks and permitted Father to

contact Child by "video chat" every Monday, Wednesday, and Friday for at

least five minutes, beginning at 7:00 p.m. Id.

The trial court held a custody hearing on October 10, 2018, during which

Andrea Pulizzi, Esquire, represented Mother, and Father appeared pro se. On

October 15, 2018, the trial court denied Mother's petition to modify custody.

Order, 10/15/18. The court continued its prior orders granting the parties

shared legal custody, Mother primary physical custody, and Father partial

physical custody. Id. However, the trial court also modified Father's period

of custody; it awarded Father custody of Child on the first weekend of each

month from Saturday at 10:00 a.m. to Sunday at 5:00 p.m. Id. Additionally,

the trial court directed that the custody exchange would occur in Milford,

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Pennsylvania.4 Id. Finally, the trial court granted Father telephone contact

with Child every Tuesday and Thursday prior to 7:30 p.m. Id.

On October 29, 2018, Mother filed a pro se notice of appeal.5 The trial

court filed its opinion pursuant to Pa.R.A.P. 1925(a) on January 15, 2018.

On appeal, Mother presents the following issues for our review:

I. Whether the trial court erred in failing to utilize the relevant

factors in determining the best interests of the child[?]

II. Whether the trial court erred by increasing [Father's]

periods of visitation despite testimony and admissions [that

Father] wasn't utilizing the time provided to him at time of trial[?]

Mother's Brief at 4.6

We review Mother's issues pursuant to the following scope and standard

of review:

[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

4 Father testified that Milford, Pennsylvania, was halfway between Mother's

house in Pennsylvania and his house in Connecticut. N.T., 10/10/18, at 24.

5 Mother failed to file a concise statement of errors complained of on appeal

concurrently with her notice of appeal in violation of Pa.R.A.P. 1925(a)(2)(i)

and (b). On November 1, 2018, the trial court issued an order directing

Mother to file a concise statement within twenty-one days. Mother timely

complied on November 14, 2018, when Attorney Pulizzi filed a concise

statement on her behalf. Because Father does not claim prejudice as a result

of Mother's procedural violation, we will not quash or dismiss her appeal. See

In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009); Cf. J.P. v. S.P., 991 A.2d

904, 908 (Pa. Super. 2010) (holding that appellant waived all issues by failing

to file a concise statement of errors complained of on appeal when directed

by the trial court).

6 Attorney Pulizzi, Mother's trial counsel, represents her on appeal.

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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.

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).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

The primary focus in any custody case is the best interests of the child.

"The 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 well[-]being." Saintz v. Rinker, 902 A.2d 509, 512 (Pa.

Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).

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It is well settled that trial courts are required to consider "[a]II of the

factors listed in section 5328(a) . . . when entering a custody order." J.R.M.

v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). This

statutory section 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:

(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.

(2.1) The information set forth in section 5329.1(a)(1)

and (2) (relating to consideration of child abuse and

involvement with protective services).

(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

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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.

23 Pa.C.S. § 5328(a).

We have explained the trial court's responsibilities relative to custody

orders as follows:

Section 5323(d) provides that a trial court "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). Additionally,

"section 5323(d) requires the trial court to set forth its mandatory

assessment of the sixteen Section 5328 custody factors prior to

the deadline by which a litigant must file a notice of appeal." C.B.

v. .7.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied,

Pa. , 70 A.3d 808 (2013).

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In expressing the reasons for its decision, "there is no required

amount of detail for the trial court's explanation; all that is

required is that the enumerated factors are considered and that

the custody decision is based on those considerations." M.J.M. v.

M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620

Pa. 710], 68 A.3d 909 (2013). A court's explanation of reasons

for its decision, which adequately addresses the relevant factors,

complies with Section 5323(d). Id.

A.V. , 87 A.3d at 822-823.

As noted above, Mother asserts that the trial court erred in failing to

consider the Section 5328(a) best -interest factors. After review, we are

constrained to agree.'

The record reveals that the trial court did not consider any of the custody

factors from Section 5328(a) on the record in open court or in a written opinion

or order. The trial court reasoned as follows:

Counsel for the appellant has also taken issue for our failure

or refusal to review the custodial factors. They too, in our view,

are irrelevant in a case such as this. We did not alter Primary

Custody or Legal Custody. Why should we review the custodial

factors which obviously favor the Mother? The only issue in this

case is visitation. We are giving Father one last chance to

establish a relationship with his child.

Trial Court Opinion, 1/15/18, at 1-2. We conclude that the trial court erred in

this conclusion.

In cases where an order does not change the "type" of the underlying

custody award or change the amount of custodial time awarded to a party,

Based on this disposition, we need not consider Mother's second issue on

appeal.

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this Court has held that Section 5328(a) is not implicated. M.O. v. J.T.R., 85

A.3d 1058 (Pa. Super. 2014). In M.O., we explained as follows:

The [trial] court was not deciding physical or legal custody, nor

even changing the amount of custodial time that either party had

with the Children. Rather, the trial court addressed a subsidiary

issue: whether Father was required to be off from work while the

Children stayed with him for a portion of the summer. After

hearing the evidence that the parties presented limited to that

sole issue, the trial court decided that Father could work during

the three weeks in question. While the court's ruling modified its

prior order, it did not change the underlying award of custody.

M.O., 85 A.3d at 1062-1063.

Simply stated, M.O. is inapplicable. In the case at bar, Mother

specifically requested a change in custody. Petition, 4/23/18, at 114. This

Court has held that, even in cases where the trial court merely reaffirms its

prior custody order, it is nevertheless making a ruling on a request to change

the form of physical custody; therefore, the trial court is bound to decide

whether the order remains in Child's best interest and it is obligated to

consider the factors set forth in Section 5328(a). S.W.D. v. S.A.R., 96 A.3d

396, 406 (Pa. Super. 2014).

Here, the trial court modified Father's supervised physical custody and

removed the requirement that Mother was to supervise Father's custodial

period. Order, 10/15/18. The subject order modified the existing custody

order by awarding Father "partial physical custody," rather than "supervised

physical custody." In addition, the order increased Father's custodial time by

granting him overnight custody on the first Saturday of each month from

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10:00 a.m. until Sunday at 5:00 p.m. Id. Erroneously, the trial court offered

no explanation as to how Father's partial physical custody award was in Child's

best interests. We reiterate that the trial court was required to consider Child's

best interests and assess the Section 5328(a) custody factors. See J.R.M.,

33 A.3d at 652; see also M.J.M., 63 A.3d at 339 (explaining, "the Legislature

has created a mandatory inquiry to aid trial courts in determining the best

interests of the child in a custody dispute.").

Thus, as Mother presented the trial court with a petition to modify

custody and because the trial court did modify the type, duration, and

conditions of Father's custody, the trial court erred when it failed to consider

Section 5328(a). S.W.D., 96 A.3d at 397. Accordingly, we vacate the

October 15, 2018 order, and remand the matter for the trial court to review

Mother's petition to modify and consider the factors from Section 5328(a) on

the record or in a written opinion. The trial court shall then enter a new

custody order based on its consideration and assessment of Section 5328(a)

and Child's best interests.

Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

f ---z Jseph D. Seletyn,

Prothonotary

Date: 07/12/2019

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