J-A15029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LORRAINE MERRYMAN, NOW, 

LORRAINE PATRICK AND ANDREW 

PATRICK 

Appellants

v.

DANIEL L. DUBROCK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1473 WDA 2021

Appeal from the Order Entered November 9, 2021,

in the Court of Common Pleas of Armstrong County,

Civil Division at No(s): 346 CD 2021.

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: September 13, 2022

Lorraine Patrick (Mother) and Andrew Patrick (Stepfather) appeal from 

the order of the Court of Common Pleas of Armstrong County, which granted 

them shared legal custody and primary physical custody of the parties fiveyear-old daughter, P.N.D. (the Child), subject to the partial physical custody

of Daniel Dubrock (Father). Mother and Stepfather argue that the trial court

failed to properly delineate and consider all of the factors enumerated in 23 

Pa.C.S.A. § 5328(a). After careful review, we affirm.

The record discloses the following factual and procedural history: The 

parties were able to co-parent without a formal custody order until they could 

not resolve where the Child should attend elementary school. As the parties 
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live thirty minutes apart, and in different districts, the decision of school choice 

was particularly consequential. 

In April 2021, Mother1filed a custody complaint seeking primary 

physical custody. In July, with the school year fast approaching, Mother and 

Stepfather filed an emergency petition regarding school choice. The court 

conducted an emergency hearing and issued an interim order. Pursuant to 

the July 2021 interim order, the Child would attend school in Mother’s district. 

For the remaining weeks of the summer, the court awarded Father physical 

custody Monday afternoon through Thursday evening. Once the school year 

started, Father was awarded partial physical custody of the Child for every 

first, third, and fourth weekend of the month, as well as every Wednesday 

evening. This order remained in place until the court held the custody hearing 

on November 5, 2021. 

At the close of the November 5, 2021 hearing, counsel for Mother and 

Stepfather requested that the court essentially adopt the July 2021 interim 

order for the rest of the school year:

[W]e believe the temporary custody order has been working 

out, so for [(sic)] changing Wednesdays from 4:00 to 7:00 

instead of 5:00 to 8:00 and adding time, with your 

____________________________________________

1

In May 2021, Mother filed a petition to amend the caption and include the 

Stepfather. With no objection from either party, the caption was amended to 

Lorraine Merryman, now Lorraine Patrick and Andrew Patrick v. Daniel 

Dubrock. No one has challenged Stepfather’s participation as a party in this 

matter.
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discretion during the summer. We would ask that the Court, 

in a way, affirm the temporary custody order[.]”

N.T. at 70. 

On November 9, 2021 the trial court entered a custody order and 

delineated its 23 Pa. C.S.A. § 5328(a) findings. The court adopted the interim 

custody schedule during the school year – i.e., Father received every first, 

third, and fourth weekend, as well as custody time every Wednesday evening. 

But during the summer months, the court slightly increased the amount of 

custody time that Father received the previous summer. Instead of three 

overnights per week, the court awarded Father shared custody on a week-on, 

week-off basis. 

Although the trial court seemingly granted Mother and Stepfather their 

desired relief, they filed this appeal.2 They present the following issue for our 

review:

Should the child custody order appealed from be reversed 

when the statutory factors [listed in 23 Pa. C.S.A. § 

5328(a)] do not support the trial court’s custody 

determination, and the trial court’s findings of fact and 

conclusions of law are unsupported by the record?

Mother’s and Stepfather’s Brief at 11.

____________________________________________

2 Notwithstanding counsel’s representations at the close of the trial, it appears 

Mother and Stepfather wanted the court to award them two weekends per 

month and to eliminate Father’s weekday visit – at least according to the 

proposed order Mother and Stepfather attached to their motion for 

reconsideration. The trial court denied this request.
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As a preliminary matter, we address the procedural defects apparent in 

this appeal. Mother and Stepfather timely filed a notice of appeal, but they 

did not contemporaneously file a concise statement of errors complained of 

on appeal, pursuant to Pa.R.A.P. 1925(a)(2). We issued a Rule to Show Cause 

order directing Mother and Stepfather to file a concise statement, and they 

complied. Because there have been no allegations of prejudice, we conclude

that Mother and Stepfather have preserved their appeal despite their initial 

noncompliance with Rule 1925. See In re K.T.E.L., 983 A.2d 745, 747 n.1 

(Pa. Super. 2009) (appellant’s failure to simultaneously filed a Rule 1925(b) 

statement did not result in waiver of all issues for appeal where the appellant 

later filed the statement, and there was no allegation of prejudice from the 

late filing).

However, we also observe that the statement of the question contained 

in their Brief involved does not exactly correspond with the argument they set 

forth. According to their presented question, the trial court erred because the

court’s findings are not supported by either the law or the record. But 

throughout their Brief, Mother and Stepfather present a slightly different 

argument – mainly, that the trial court erred by failing to consider a certain 

statutory factor (Section 5328(a)(15)) and by rendering deficient findings in 

contravention of Section 5323(d) (reasons for the award).

A brief which fails to comply with the Pennsylvania Rules of Appellate 

Procedure may result in a quashed or dismissed appeal. See Pa.R.A.P. 2101. 

“[W]e decline to become the appellant’s counsel. When...briefs are wholly 
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inadequate to present specific issues for review, a Court will not consider the 

merits thereof. Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942-

43 (Pa. Super. 2006) (internal alteration and citation omitted). “No question 

will be considered unless it is stated in the statement of questions involved or 

is fairly suggested thereby.” Pa.R.A.P. 2116(a).

We decline to find waiver in this instance, as the issues contained in the 

argument section of the Brief are fairly suggested by the question presented; 

we do not find the Brief to be “wholly inadequate to present specific issues for 

review.” See Gesiorski, 904 A.2d at 942. Although waiver is not appropriate 

in this case, we advise counsel to heed the Rules of Appellate Procedure more 

closely.

Turning to merits of the appeal, we begin our analysis by observing this 

Court’s scope and standard of review for custody matters:

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 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.

S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
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The Child Custody Act provides: “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 [factors 1 through 16.]” 23 Pa.C.S.A. § 5328(a)(1)-

(16). Thereafter, the trial court shall delineate its reasons, either on the 

record in open court or in a written opinion or order. 23 Pa.C.S.A. § 5323(d). 

We have held that a court must delineate its reasons at or near the time 

of the decision. C.B. v. J.B., 65 A.3d 946, 954 (Pa. Super. 2013). Without 

the benefit of the court’s analysis, a party will be unable to take an effective 

appeal. “[A] party would have to guess at all the possible issues that might 

arise from the trial court’s ultimate explanation of the bases for its ruling. This 

could subject the party to waiver for over-inclusiveness or vagueness.” C.B., 

65 A.3d at 954.

Apart from the timing of the delineation, we have also addressed the 

substantive quality of the Section 5323(d) delineation:

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). A court's explanation of reasons for its 

decision, which adequately addresses the relevant factors, 

complies with Section 5323(d). Id.

D.Q. v. K.K., 241 A.3d 1112, 1118 (Pa. Super. 2020) (quoting A.V. v. S.T., 

87 A.3d 818, 822-23 (Pa. Super. 2014)). “It is within the trial court’s 

purview as the finder of fact to determine which factors are most salient and 
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critical in each particular case.” M.J.M., 63 A.3d at 339 (citation omitted) 

(emphasis added). “The parties cannot dictate the amount of weight the trial 

court places on evidence.” A.V., 87 A.3d at 820. “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.” 

Id. However, when a trial court fails to consider one of the Section 5328(a) 

factors, a remand might be necessary to allow the court to supplement its 

findings. See, e.g., E.C.S. v. M.C.S., 256 A.3d 449, 460-61 (Pa. Super. 

2021). 

Instantly, the trial court delineated its reasons for the award 

contemporaneously with the custody order. The court provided the following 

analysis under Section 5328(a):

(1) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and 

another party.

Both parties encourage and permit frequent and continuing 

contact between the Child and the other party. Father 

testified sometimes he reaches out to FaceTime with the 

Child and Mother does not respond; however, Mother 

testified she sometimes is without cell service.

(2) The present and past abuse committed by 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.

There is no history of abuse.

(2.1) The information set forth in section 5329. 1(a) 

(relating to consideration of child abuse and involvement 

with protective services).
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There was no testimony about any involvement with 

Children, Youth, and Family Services.

(3) The parental duties performed by each party on behalf 

of the child.

[Mother and Stepfather] and [Father] perform all parental 

duties when the Child is in their respective care. When the 

Child is with Plaintiffs Mother and Stepfather, they ensure 

the Child maintains her routine for school, works on

homework, and cooks for the Child. Mother takes the Child 

to doctor's appointments and dentist appointment.

Likewise, when the Child is with [] Father, he cooks for the 

Child and bathes the Child when she is in his care. Also, []

Father's wife, [Stepmother] cooks and bakes with the Child 

when she is with Father.

(4) The need for stability and continuity in the child's 

education, family life and community life.

The Child attends Kindergarten at Dayton Elementary with 

her older brother and rides the bus to school with him every 

day. She is involved in horseback riding lessons and has 

attended the Armstrong County Community Action Agency 

Head Start program for social development.

(5) The availability of extended family.

The Child’s older brother lives with Mother and Stepfather, 

and was recently adopted by Stepfather. Mother’s sister 

lives in New York and Mother plans trips to visit with her 

Sister and cousins. Stepfather’s family is local, including 

Stepfather’s Mother, with whom the Child has a close 

relationship. Father has half-siblings that the Child 

occasionally sees. Stepmother has three adult daughters 

and four grandchildren the Child regularly sees when she is 

with Father. 

(6) The child's sibling relationships.

The Child has an older brother whom she is very close with. 

The Child and her brother ride the bus together to school 

and spend a lot of time together. Mother testified the Child 

refuses to go to sleep without saying goodnight to her 

brother.
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(7) The well- reasoned preference of the child, based on the 

child's maturity and judgment.

The Court did not speak with the Child as the Child is too 

young for preference.

(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.

There have been no attempts by [Mother and Stepfather] 

and [Father] to turn the Child against the other party.

(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.

It is apparent to the Court both [Mother and Stepfather] and 

[Father] love and care for this Child. There was no evidence 

presented that either party is more likely to maintain a 

loving, stable, consistent, and nurturing relationship with 

the Child adequate for the Child’s emotional needs more 

than the other party.

(10) Which party is more likely to attend to the daily 

physical, emotional developmental educational and special 

needs of the child.

[Mother and Stepfather] and [Father] both attend to the 

Child’s daily physical, emotional, development, educational, 

and special needs of the Child when the Child is in their 

respective care.

(11) The proximity of the residences of the parties.

Mother and Stepfather reside in Templeton, Pennsylvania. 

Father resides in Sligo, Pennsylvania. The drive between 

residences is approximately thirty minutes by car.

(12) Each party's availability to care for the child or ability 

to make appropriate child-care arrangements.

Both parties demonstrated their availability and ability to 

make appropriate child-care arrangements. Mother 

typically works 8:00 A.M. until 4:30 P.M. so Stepfather 

ensures the Child and her older brother get on the school 
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bus. If needed, Mother and Stepfather arrange for 

Stepfather's Mother to watch the Child and her older 

brother. During the summer months, the Child and her 

older brother attend a home-based daycare while the 

Plaintiffs are at work.

Father works as a mechanic and has flexible hours which 

enables him able to pick up the Child from school if needed.

Father lives with Stepmother who is available to help with 

the Child.

(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.

The level of conflict is low between the parties. Stepfather

and Father meet halfway for custody drop-offs and pick-ups, 

which demonstrated to the Court the level of civility between 

the parties. The Court was impressed by the way the parties 

work together, and have set aside differences to amicably

communicate, all in the best interest of the Child.

(14) The history of drug or alcohol abuse of a party or 

member of a party's household.

Several years ago, Stepmother was charged with Possession 

of marijuana and was on probation.

(15) The mental and physical condition of a party or 

member of a party's household.

The Child has not been diagnosed with any mental or 

physical conditions. The Child has been working on 

social development through the Agency Head Start 

Program.

(16) Any other relevant factor.

No other relevant factor.

* * *

Based on these findings, it is apparent to the Court that both 

parties love and care for the Child, and have set aside differences 

and past difficulties to create an amicable relationship for the 
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Child. This is truly in the best interest of the Child. Further, it is 

in the Child’s best interest for both parties to continue to have 

meaningful contact with the Child. Thus, the parties shall share 

legal custody and Mother and Stepfather shall have primary 

physical custody during the school year, subject to Father’s partial 

custody. During the summer months when school is not in session 

it is in the Child’s best interest to share the time equally with her 

two parents. 

Memorandum, 11/9/21, at 2-6 (emphasis added).

On appeal, Mother and Stepfather’s argument is twofold. First, they 

argue that the court erred when it failed to consider the mental and physical 

condition of either party or a member of their respective households under 

Section 5328(a)(15). See Mother and Stepfather’s Brief at 22. Second, they

allege that because the trial court did not assign weight to the factors, they

were unable to discern how the trial court made its decision. Id. at 22-23. 

We discuss each in turn.

Regarding Section 5328(a)(15), Mother testified that she is “very stable 

mentally and physically” and that she has “a few joint problems but nothing 

that is out of the normal.” See N.T. at 22. Stepfather testified that he is “a 

very mentally and physically strong person due to my experience in the Marine 

Corp” and that his experience “has prepared me to deal with almost any 

outcome or incident I have ever come across.” Id. at 44-45. No testimony 

was offered about the mental or physical condition of the Child’s older brother, 

who lives with Mother and Stepfather.

Father, representing himself, did not testify about whether he had any 

mental or physical conditions, nor did he offer any testimony about 
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Stepmother regarding this factor. The trial court did not ask either Father or 

Stepmother about their mental or physical conditions; instead, the court asked 

Father whether the Child had any condition that would be relevant to its 

decision (Father said the Child did not). Id. at 54. Notably, counsel for Mother 

and Stepfather did not cross-examine Father or Stepmother about this factor.

At the conclusion of the hearing, the trial court stated:

Well, I will tell you, this is the kind of custody case that I 

like. [The Child] is in no danger in either household. She 

has a loving family in both homes, both parents are wellqualified and perfectly good parents for [the Child].

N.T. at 71.

The trial court ultimately addressed Section 5328(a)(15) in its 

delineation of reasons, but only insofar as it related to the Child; the court did 

not address this factor as it related to the parties or the stepparents. 

Upon our review, we discern no error or abuse of discretion. Given the 

court’s statement at the end of the trial, we may infer the trial court 

considered the mental and physical conditions of Mother and Stepfather but 

concluded that this factor was largely irrelevant. The court had the 

opportunity to assess the witnesses firsthand, and it made no additional 

remarks. See. S.T. 192 A.3d at 1160 (“[W] e must defer to the presiding trial 

judge who viewed and assessed the witnesses first-hand.”). Insofar as the 

court did not consider the mental or physical condition of Father or 

Stepmother, we note that Mother and Stepfather did not cross-examine Father 

about this issue. Nor did they allege at the custody hearing that Father or 
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Stepmother were somehow unfit. And, on appeal, Mother and Stepfather do 

not cite to any evidence, or present any argument, about why the court’s 

decision was contrary to the Child’s best interests based on an alleged physical 

or mental condition of Father and Stepmother.

Although the trial court’s findings under Section 5328(a)(15) are 

minimalistic, it is evident that the court determined that parties and the 

stepparents were suitable caregivers. Mother and Stepfather did not allege 

anything to the contrary, and the trial court properly considered all there was 

to consider about this factor on the record. We find no reason to remand for 

a more detailed opinion or additional proceedings under these circumstances.

Next, we consider whether the court’s analysis was deficient under 

Section 5323(d). We reiterate that we may make our own deductions or 

inferences based on the court’s factual findings. See S.T., 192 A.3d at 1160. 

The ultimate test is whether the trial court's conclusions are unreasonable as 

shown by the evidence of record. Id. Upon review, we conclude that the 

court’s delineation of the factors sufficiently reveals the court’s rationale.

The court largely determined that the factors favored the parties 

equally, which explains why the court awarded shared legal custody and 

shared physical custody during the summer. Moreover, it was self-evident 

from the record that the court’s award of substantial primary custody during 

the school year was largely based on two factors: 1) that the Child should 

attend the elementary school near Mother’s home; and 2) that an award of 

shared physical custody during the school year was simply untenable, given 
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the distance between the parties’ households. See 23 Pa.C.S.A. § 5328(a)(4), 

(11). In other words, it would not be in the Child’s best interests to spend 

hours commuting to and from the parties’ homes, during the school week. 

As such, the court awarded Mother and Stepfather substantial physical 

custody during the school year in the district where the Child started 

kindergarten earlier that fall. Additionally, the Child has a close relationship 

with her older brother. By awarding the bulk of the school days to Mother and 

Stepfather, the Child will be able to maintain that close relationship. The court 

awarded Father three weekends per month and one weekday evening per 

week during the school year so that the Child could maintain the strong 

relationship she had with him. This was as close to a shared physical custody 

arrangement as possible. 

We reiterate that a court violates Section 5323(d) when the court’s 

delineation is either untimely or fails to adequately address the relevant 

factors. See C.B., 65 A.3d at 954; see also M.J.M., 63 A.3d at 336. When 

that occurs, parties are prevented from understanding the court’s rationale in 

time to decide whether to file an appeal. When such a violation occurs, the 

remedy is not an outright reversal as Mother and Stepfather suggest, but a 

remand to allow the court to supplement its analysis. See E.C.S., 256 A.3d at 

460-61. 

We note that the trial court could have been more explicit in its Section 

5328(a) analysis, by revealing more precisely whether a given factor favored 

either parent, or whether it weighed any of the factors more heavily than the 
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others. Indeed, had the court’s ultimate award been different, then perhaps 

the court’s underlying rationale would not have been so obvious; had that 

been the case, then a remand may have been necessary to allow the court to 

further express its reasoning. See, e.g., Gross v. Gross, 270 A.3d 1165 

(Table), 2021 WL 6110239 (Pa. Super. 2021) (non-precedential decision) 

(remanding for supplemental findings where the court awarded primary 

custody to the mother, but where the court’s Section 5328(a) analysis 

seemingly favored the father). Here, however, appellate interference is 

unwarranted, because the trial court's consideration of the best interest of the 

Child was careful and thorough. See A.V., 87 A.3d at 820. For these reasons, 

we disagree with Mother and Stepfather’s position that the trial court’s 

analysis prevented them from taking an effective appeal.

In sum, the record supports the trial court’s award of primary physical 

custody to Mother and Stepfather during the school year. This was the relief 

they sought at the outset of the litigation. To the extent they challenge the 

Father’s partial custody award, we note the trial court has broad discretion in 

fashioning this award. See M.J.M., 63 A.3d at 339; see also S.T., 192 A.3d 

at 1160. Nothing indicates Father’s partial custody should have been denied, 

supervised, or otherwise limited. As such, we discern no abuse of discretion.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/13/2022