J-A09035-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.K.D.

v.

A.L.C., A/K/A A.L.D.

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1287 WDA 2017

Appeal from the Order Dated August 8, 2017

In the Court of Common Pleas of Allegheny County Family Court at

No(s): FD 09-8227-005

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MAY 25, 2018

A.L.D. (Mother) appeals from the custody order awarding primary

physical custody of the parties’ minor son, L.D. (Child), to D.K.D. (Father), partial physical custody to Mother, and shared legal custody to Father and

Mother. After careful review, we affirm in part and vacate in part. In a published opinion, a prior panel of this Court summarized the

relevant factual and procedural history of this case as follows:

Mother and Father married [i]n March [ ] 2004, separated during

2009, and divorced in March [ ] 2015. The family moved to the

Pittsburgh area two years into the marriage. The marital home

was in Imperial, Pennsylvania. Following the separation, Father,

who currently works for the Federal Bureau of Investigation

(“FBI”) Joint Terrorism Task Force, moved approximately twelve

miles from the marital residence to his parents’ home in

Burgettstown. Until Mother moved to Florida during early 2015,

she remained in the marital home with the parties’ son[, Child], who was born of the marriage during February 2008. * * *
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Meanwhile, following the marital breakdown, on July 1, 2009,

Father filed a petition for divorce that included a count for custody

of [Child]. The trial court entered a consent order that granted

shared legal custody and awarded Mother primary physical

custody. Father received periods of physical custody of [Child] for

two hours on Tuesday and Thursday evenings and for three hours

on alternating Saturday afternoons. The accord expressly limited

the evening custody to the marital residence. While Father was

authorized to exercise his custodial rights outside of the home

during Saturday afternoons, in reality, Mother regularly objected

to [Child] leaving the home with Father due to her concern that

the disruption would be harmful to [Child’s] condition.[

1] Father

generally acquiesced to Mother’s demands and exercised weekend

custody at the marital residence.

On September 25, 2014, Father filed a petition to modify the

consent order. He sought larger periods of physical custody, more

specific vacation and holiday schedules, and better enforcement

of his custodial rights. Approximately one month later, Mother

countered by issuing notice of her proposed relocation to

Ocklawaha, Florida, so that she and [Child] could reside with her

mother (“Maternal Grandmother”).

Father opposed the proposed relocation, and the trial court held a

two-day trial on the parties’ respective petitions. Mother and

Maternal Grandmother testified in support of the proposed

relocation. Father testified on his own behalf and presented

[Child’s pediatrician], and his parents (“Paternal Grandparents”)

as witnesses. Following the testimony and review of the parties’

proposed findings of fact, on March 20, 2015, the trial court denied

Mother’s proposed relocation. The trial court delineated the

reasons for its decision, and addressed the ten relocation factors

under 23 Pa.C.S. § 5337(h), reproduced infra. It found that the

only factor that militated in favor of relocation concerned the

anticipated enhancement to Mother’s quality of life. The

remaining factors, including consideration of [Child’s] quality of

life, either weighed against relocation, were determined to be

____________________________________________

1 Child is diagnosed with Pervasive Development Disorder, a nonspecific

descriptive diagnosis within the autism spectrum of developmental delays in

two or more areas. D.K.D. v. A.L.C., 141 A.3d 566, 569 n.1 (Pa. Super.

2016).
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neutral, or were inapplicable. In sum, the court reasoned, “While

Mother demonstrated that relocating to Florida would enhance her

general quality of life, she failed to meet her burden that

relocation is in [Child’s] best interest.” Findings of Fact, 3/23/05,

at 15.

In addition, the trial court granted Father’s motion to modify the

custody arrangement. It alleviated Mother’s precondition that

Father exercise custody at the marital home and fashioned a

custody schedule that increased Father’s periods of physical

custody gradually over four months. The expansion culminated

with Father exercising overnight custody on alternating weekends

from Friday evening until Sunday evening. The court also outlined

a defined custody schedule for [Child’s] academic breaks,

holidays, and summer vacation.

On April 8, 2015, Mother filed a motion for reconsideration and a

motion for special relief. The motion for reconsideration noted

that the trial court had not established a custody schedule in the

event that Mother elected to relocate to Florida without her son.

The concomitant motion for special relief informed the court that,

while the court’s decision was pending, Mother, who attained a

Juris Doctor degree, had accepted a job in Florida as a claims

assistant at the Department of Veterans Affairs and had devised

an interim plan for Maternal Grandmother to care for [Child] in

the marital residence while she began immediate employment.

Mother continued that she intended to purchase a home in Florida

in anticipation of the trial court’s reconsideration of its denial of

her prior petition for relocation. Specifically, she averred, “Mother

plans to have a home purchased in the geographic area of her

employer in which she and her mother will live, with, if the Court

permits, the child.” Petition for Special Relief, 4/15/15, at 3.

Mother asserted that the employment offer was a significant factor

that was not of record during the prior hearing and she contended

that “other significant changes have occurred,” which she failed to

identify in the petition. Id. at 2. Mother requested that the court

re-open the record to take additional evidence relative to her

relocation.

Within the thirty-day period to appeal the March 23, 2015 custody

order, the trial court granted Mother’s motion to reconsider,

reopened the record, and scheduled an evidentiary hearing for

June 2015. In light of the court’s decision to reopen the record,

Father submitted a motion to amend his original petition for
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modification in order to address Mother’s acceptance of

employment in Florida. The trial court granted Father’s motion to

amend. Thereafter, Mother issued an amended notice of

relocation proposing to relocate with [Child] to Treasure Island,

Florida, approximately two hours away from Maternal

Grandmother’s home. Again, Father opposed relocation.

On July 1, 2015, the trial court convened a third day of trial to

address Father’s amended motion for modification and Mother’s

amended relocation petition. Mother and Maternal Grandmother

again testified in favor of relocation. Father and his parents

testified in opposition to relocation and in favor of granting Father

primary physical custody of the child in Pennsylvania. On August

3, 2015, the trial court issued amended findings of fact and

entered a custody order granting Mother’s request to relocate with

[Child] to Treasure Island, Florida.

D.K.D. v. A.L.C., 141 A.3d 566, 569-571 (Pa. Super. 2016).

Father appealed and this Court reversed the trial court’s decision to

grant Mother’s petition for relocation. See id. at 579-580. Specifically, we

held that the trial court erred in its consideration of five out of the ten factors

listed in 23 Pa.C.S.A. § 5337(h). Id. Accordingly, because the evidence

demonstrated that the trial court’s conclusions were unreasonable, this Court

held that it was against Child’s best interest to relocate to Florida. Id. at 580. Mother filed a motion requesting reargument and/or reconsideration, which

this Court denied on July 28, 2016.

Thereafter, on August 12, 2016, Mother filed a motion to stay this

Court’s decision with the trial court. In her motion, Mother alleged that Child

was thriving in Florida and that it would be “traumatizing for the child,

emotionally and psychologically, to immediately reverse the existing custody

or to remove the child from Mother. . . .” Motion for Stay, 8/12/16, ¶ 16.
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That same day, the trial court denied Mother’s motion to stay and issued an

order of court awarding Father primary physical custody of Child. Child has

resided with Father since August 2016.

On August 16, 2016, Mother filed a petition for modification of custody,

requesting that the trial court award her primary physical custody and sole

legal custody of Child. The trial court scheduled the matter for trial and

entered an interim order detailing the terms of Father’s primary physical

custody and Mother’s partial custody. A three-day trial commenced on August

4, 2017. Mother testified on her own behalf and presented the testimony of

Maternal Grandmother; Angie Hadley, the children’s director for Children’s

Ministry and the Christian play group at Mother’s church; Anthony Biork,

Child’s scout den leader; Colleen Kilen, a member of Mother’s church;

Shakorya Hansen, Child’s teacher at the YMCA after-school program; Sean

Leonard, Mother’s friend; and Dean Hoskin, the recreational director at

Mother’s church. Father also testified on his own behalf and presented the

testimony of Child’s paternal grandparents; and Dr. Joseph Greenberg, a

clinical psychologist who conducted a psychological evaluation of Mother and

Father. The trial court also conducted an in camera interview of Child.

At the conclusion of trial, the court orally denied Mother’s petition to

modify custody and awarded Father primary physical custody of Child. Mother

was awarded partial physical custody of Child every weekend Child has off

from school on a Monday or Friday. The trial court memorialized its findings

in an order entered on August 8, 2017. Mother timely filed a notice of appeal
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on September 7, 2017, along with a concise statement of errors complained

of on appeal.

Mother presents the following issues for our review:

1. DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION, A

DISREGARD OF COMPETENT EVIDENCE, AND ERRORS OF LAW,

IN NOT ACKNOWLEDGING THE RECORD OF THE SUPERIOR

COURT DECISION AND ORDER, IN FAILING TO EXERCISE ITS

OWN JUDGMENT AND LEGAL AUTHORITY IN THE

IMPLEMENTATION OF THE SUPERIOR COURT ORDER, THEN IN

ADDRESSING MOTHER’S MODIFICATION PETITION,

RESULTING IN A DISREGARD OF THE BEST INTERESTS OF THE

MINOR CHILD?

2. DID THE TRIAL COURT IN ITS INTERIM ORDERS, AND AUGUST

8, 2017, ORDER, ABUSE ITS DISCRETION BY APPLYING

FACTORS IN A LIGHT MOST FAVORABLE TO FATHER,

EXERCISED A GENDER BIAS AGAINST [MOTHER], MADE

FINDINGS AGAINST [MOTHER] THAT WERE WHOLLY

UNSUBSTANTIATED AND UNSUPPORTED BY COMPETENT

EVIDENCE, WHILE FAILING TO CONSIDER THE MOTHER-SON

RELATIONSHIP, [MOTHER’S] ROLE AS PRIMARY CARETAKER

OF THE MINOR CHILD, AND, FATHER’S HISTORY OF CHRONIC

NEGLECT OF THE CHILD?

3. DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION

AND ERRORS OF LAW IN ITS APPLICATION, AND LACK OF

APPLICATION, OF THE BEST INTEREST FACTORS OF 23

PA.C.S.[A. §] 5328(A)(1)-(16) IN DENYING [MOTHER’S]

MOTION TO MODIFY CUSTODY?

Mother’s Brief at 6.

We address Mother’s claim mindful of our well-settled standard of

review:

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
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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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

The Child Custody Act (the Custody Act), 23 Pa.C.S.A. §§ 5321-5340,

governs all custody proceedings commenced after January 24, 2011. E.D. v.

M.P., 33 A.3d 73, 77 (Pa. Super. 2011). “The primary concern in any custody

case is the best interests of the child.” J.P. v. S.P., 991 A.2d 904, 907 (Pa.

Super. 2010). “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 wellbeing.” Id.

In awarding custody, the Custody Act requires a trial court to determine

the best interests of the child after considering all relevant factors, including

certain statutory factors:

(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
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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)

(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

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.
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(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.A. § 5328(a).

We have explained:

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. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70

A.3d 808 (Pa. 2013). . . . 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, 68

A.3d 909 (Pa. 2013). A court’s explanation of reasons for its

decision, which adequately addresses the relevant factors,

complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014). In her first issue, Mother alleges that the trial court improperly

considered this Court’s prior decision when it denied Mother’s petition to

modify custody. Mother’s Brief at 13-14. Mother asserts that it was error for

the trial court to consider the Superior Court’s decision, and that the trial

court’s error “resulted in the [t]rial [c]ourt becoming predisposed to rule

against Mother, resulting in a disregard of [Child’s] best interests.” Id. at 14.
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We find that Mother has waived this issue on appeal. Pennsylvania

courts have long held:

In order to preserve an issue for appellate review, a party must

make a timely and specific objection at the appropriate stage of

the proceedings before the trial court. Failure to timely object to

a basic and fundamental error will result in waiver of that issue.

On appeal the Superior Court will not consider a claim which was

not called to the trial court’s attention at a time when any error

committed could have been corrected. In this jurisdiction . . . one

must object to errors, improprieties or irregularities at the earliest

possible stage of the adjudicatory process to afford the jurist

hearing the case the first occasion to remedy the wrong and

possibly avoid an unnecessary appeal to complain of the matter.

In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (citations omitted). In

this case, this Court’s prior decision was referenced repeatedly throughout the

subject proceedings by both Mother’s and Father’s counsel, and by the trial

court. At no point did Mother object to the trial court’s consideration of this

Court’s earlier findings or seek its admission for a limited purpose. Thus, this

claim is waived. S.C.B., 990 A.2d at 767.

Additionally, Mother contends that the trial court erred in denying her

motion to stay without conducting a hearing. Mother’s Brief at 14-15.

Mother’s contention, however is beyond our jurisdictional mandate.

Pennsylvania Rule of Appellate Procedure 903 requires that a party file an

appeal “within 30 days after the entry of the order from which the appeal is

taken.” Pa.R.A.P. 903(a). As the 30-day period is jurisdictional in nature, it

must be strictly construed. Sass v. AmTrust Bank, 74 A.3d 1054, 1063 (Pa.

Super. 2013) (“Our Courts have reaffirmed on countless occasions that
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timeliness is jurisdictional, as an untimely appeal divests this Court of

jurisdiction to hear the merits of the case.”).

Here, the order Mother complains of was entered on August 12, 2016.

Accordingly, Mother had 30 days, or until September 12, 2016, to file a notice

of appeal. As Mother is challenging this order now, over a year after the order

became final, this contention is untimely. We therefore lack jurisdiction to

address Mother’s challenge to the trial court’s order denying her motion to

stay without a hearing.

Next, Mother asserts that the trial court’s custody determination was

made based on “gender bias against Mother.” Mother’s Brief at 25. Mother

highlights four instances of perceived bias and asserts that the trial court’s

order should be reversed. Mother asserts: 1) the trial court failed to consider

that Mother was Child’s primary caregiver for over eight years and that Father

has only had primary custody of Child since August 2016; 2) the trial court

inquired into Mother’s finances, but did not make the same inquiry for Father;

3) the trial court “boldly adopted” the belief that Mother moved to Florida out

of her own desire and ignored testimony Mother had a job in her home state

of Florida and that Father left Child when he was 18 months old to focus on

his career; and 4) the trial court abused its discretion by awarding Mother less

partial custody time with Child than Father received when Mother had primary

physical custody of Child. Id. at 25-30.
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In our prior decision, this Court rejected the same assertion raised by

Father, and we reject the present claim for the identical reason, i.e., “the trial

court’s decision is . . . clearly not the product of gender-bias.” D.K.D. v.

A.L.C., 141 A.3d at 572. We stated:

[G]ender-neutral custody considerations are well ensconced in

Pennsylvania jurisprudence, and the Custody Law does not

countenance presumptions between parents based upon gender

or any other characteristics. See 23 Pa.C.S. § 5327(a) (“In any

action regarding the custody of the child between the parents of

the child, there shall be no presumption that custody should be

awarded to a particular parent.”).

Id.

We disagree with Mother’s characterization of the trial court’s analysis.

In actuality, the certified record demonstrates that the trial court weighed all

the facts presented, along with the statutory mandates, and concluded that it

would be in Child’s best interest to remain in Father’s primary custody. As the

notion that the trial court’s determination was the product of gender-bias is

baseless, no relief is due.

Mother’s final issue presents a challenge to the trial court’s application,

and lack of application, of the best interest custody factors under Section

5328(a) of the Custody Act. Mother’s Brief at 31. Mother takes issue with the

trial court’s findings with respect to factors 1-5 and 7-13. Id. at 32-56.

Mother contends that the evidence of record does not support the trial court’s

decision to deny her request for primary physical custody. Mother challenges

several findings made by the trial court and the testimony of Dr. Joseph
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Greenberg, the clinical psychologist appointed by the court to perform a

psychological evaluation of the parties.

The trial court issued its decision at the conclusion of the custody

hearing on August 8, 2017, with consideration of the Section 5328(a) best

interest factors. N.T., 8/8/17, at 32-62. Ultimately, the trial court concluded

that Child’s best interest would be served by awarding Father primary physical

custody. In discussing the factors, the trial court noted that Mother and Father

were equally capable of providing for Child and that Child is “thriving and

equally connected to friends and activities in both environments.” N.T.,

8/8/17, at 39. However, the court expressed its concern that Mother was

influencing Child’s preference and was less likely to encourage contact

between Father and Child. Id. at 32-38, 43-45.

Although the court is required to give “weighted consideration to those

factors which affect the safety of the child,” pursuant to 23 Pa.C.S.A. §

5328(a), we have acknowledged that the amount of weight a court gives any

one factor is almost entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331,

339 (Pa. Super. 2013). Critically, as we stated in M.J.M.:

It is within the trial court’s purview as the finder of fact to

determine which factors are most salient and critical in

each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36

(Pa. Super. 2010) (“In reviewing a custody order . . . 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.”). Our decision here does

not change that.
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Id. (emphasis added).

At their core, we interpret Mother’s claims as disputes with the trial

court’s findings of fact and determinations regarding credibility and weight of

the evidence. Mother essentially questions the trial court’s conclusions and

assessments and invites this Court to re-find facts, re-weigh evidence, and/or

re-assess credibility to her view of the evidence. That is not our role as an

appellate court. Under the aforementioned standard of review applicable in

custody matters, the trial court’s findings of fact and determinations regarding

credibility and weight of the evidence may not be disturbed absent an abuse

of discretion. See C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012); see

also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015). As we stated in

King v. King, 889 A.2d 630, 632 (Pa. Super. 2005):

It is not this Court’s function to determine whether the trial court

reached the ‘right’ decision; rather, we must consider whether,

‘based on the evidence presented, given [sic] due deference to

the trial court’s weight and credibility determinations,’ the trial

court erred or abused its discretion. . . .

(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)).

After a thorough review of the record, we find no abuse of discretion.

The trial court exhaustively analyzed and addressed each factor under Section

5328(a). See N.T., 8/8/17, at 32-62. Its findings and determinations

regarding the custody factors are supported by competent evidence in the

record, and we will not disturb them. See C.R.F., 45 A.3d at 443; see also

E.R., 129 A.3d at 527. To the extent Mother challenges the weight attributed
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to any factor by the trial court, we likewise find no abuse of discretion. As

stated above, the amount of weight that a trial court gives to any one factor

is within its discretion. M.J.M., 63 A.3d at 339.2

Finally, Mother argues that the order awarding Father primary physical

custody was unreasonable because it did not provide her with definitive

periods of partial custody or additional time with Child during the summer and

holidays. Mother’s Brief at 22-24. We observe that the trial court failed to

make a specific ruling regarding a summer vacation and holiday schedule in

its August 8, 2017 order awarding Father primary physical custody of Child.

Likewise, the custody order fails to consider that Child will not be able to

attend extracurricular activities while in Mother’s custody, as is required by

paragraph six of the order. Accordingly, we vacate the order insofar as it does

not establish a custody schedule for the summer months or holidays. We

remand this matter to the trial court for the imposition of a custody schedule

for the summer months and holidays, and if necessary, further evidentiary

proceedings to create a summer custody schedule that will serve Child’s best

interests. Thereafter, the trial court shall enter a comprehensive, revised

custody order that sets forth both a school year and summer custody

____________________________________________

2 We note that, as previously stated, this Court’s role is to determine “whether

the trial court’s conclusions are unreasonable as shown by the evidence of

record.” J.R.M., 33 A.3d at 650. Here, the certified record, including more

than 600 pages of testimony, supports the trial court’s findings. Accordingly,

the trial court did not abuse its discretion.
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schedule, mindful of the fact that Child may spend time with Mother in Florida

and may not be able to attend extracurricular activities while in Mother’s

custody. Order affirmed in part and vacated in part. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/25/2018