J-A30012-18

2019 PA Super 182

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* Retired Senior Judge assigned to the Superior Court.

S.S. Appellant

v.

T.J.

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 653 WDA 2018

Appeal from the Order April 26, 2018

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

No(s): FD09-002095-008

BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.: FILED JUNE 10, 2019

Father, S.S., appeals pro se from the order denying his petition for

modification of custody with regard to his two daughters, C.M.S., born in June

of 2006, and C.B.S., born in April of 2009 (collectively “Children”), who are

now living with their Mother, T.J., in South Carolina. We affirm.

The trial court set forth the background of this case as follows:

[Mother and Father married in 2001.] The parties have

been divorced since 2010. [Initially, the parties shared custody

of Children, with Mother having primary physical custody.] They

initially struggled to make their way as a separated family,

resulting in Mother filing a number of Protection from Abuse

petitions after custody exchanges became confrontational.

[Mother sought to relocate with Children to South Carolina with

her fiancé.] By the time of the hearing on Mother’s Relocation

petition in September of 2017, however, the parties had gotten

past the emotions which had led to physical altercations and,

instead, were focused on what was best for the children.
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At the time of the relocation hearing, [C]hildren were in

Mother’s primary care. Father exercised weekend custody and

played a major role in the lives of his children. Mother proposed

relocation in order to follow her fiancé who had been transferred

to South Carolina and to advance her career as a real estate

agent. After [the] hearing, [the trial court] determined that

relocation with Mother was in [C]hildren’s best interest, with

liberal contact and custody being provided for Father. [The trial

court’s September 27], 2017 Order awarded Mother primary

physical custody during the school year, with Father exercising

summer custody as well as long weekends and holidays.

The Order further provided [C]hildren daily phone, text, or

Skype contact with the non-custodial parent, which contact was

to be encouraged and not interfered with by the parent exercising

custody. The Order required the parents to use common sense

when scheduling calls and provided that the calls should not be

“excessively frequent or too long in duration that they disrupt the

child’s schedule.” [Father did not take an appeal from the

September 27, 2017 order.]

In late November of 2017, Father initiated an investigation

by the South Carolina [D]epartment of Social Services, alleging

the girls were being neglected and mistreated. Father alleged he

learned of the abuse from his children. ([N.T., 4/25/18, at] 4).

The accusations were determined to be unfounded and the case

was closed. ([Id. at] 4[8]-49).

In his Petition for Modification of Custody [filed on December

7, 2017], Father alleged that Mother was improperly limiting his

phone contact with the girls to 30 minutes in retaliation for the

child abuse investigation. ([Id. at] 5). He also alleged that the

girls are fearful, are being beaten by Mother, and are intimidated

and threatened by her fiancé. ([Id. at] 5-9).

At the hearing on this matter, Father appeared pro se and

Mother was represented by counsel. Mother and the girls testified

by phone from South Carolina. [On April 26, 2018, the trial court]

entered an Order denying Father’s modification petition. [The trial

court] found [its] analysis of both the relocation factors of 23

Pa.C.S.A. 5337(h) and the custody factors of 23 Pa.C.S.A. 5328

only several months before this hearing were still applicable. [The

trial court] did not find Mother to be in contempt, but directed that

telephone calls could exceed 30 minutes “using common sense.”
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[The trial court] also directed Mother to enroll both girls in

counseling to help them cope with their issues regarding

separation from the Father.

Trial Court Opinion, 7/2/18, at 2-3. Father filed this timely pro se appeal.

Both Father and the trial court complied with Pa.R.A.P. 1925.

Father presents the following issues for our review:

A. WHETHER THE LOWER COURT ABUSED ITS DISCRETION AND

COMMITTED AN ERROR OF LAW IN WEIGHING THE FACTORS BY

GRANTING THE MOTHER PRIMARY CUSTODY OF THE CHILDREN?

B. WHETHER THE LOWER COURT PROPERLY APPLIED THE

FACTORS IN ANALYZING THE BEST INTERESTS OF THE

CHILDREN?

C. WHETHER THE LOWER COURT DEVIATED FROM APPLICABLE

STANDARDS IN ESTABLISHING A SCHEDULE OF WHEN THE

FATHER WOULD BE ABLE TO HAVE [PHYSICAL] CUSTODY OF THE

CHILDREN INDIVIDUALLY AND TOGETHER?

Father’s Brief at 5.

Before addressing the merits of Father’s issues, we must determine

whether those issues are properly before us. The trial court has asserted that

Father’s Pa.R.A.P. 1925(b) statement is not concise and required the trial

court to guess at the issues being presented. We agree.

A concise statement of errors complained of on appeal must be specific

enough for the trial court to identify and address the issues the appellant

wishes to raise on appeal. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.

Super. 2006) (quoting Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super.

2006)). Pennsylvania Rule of Appellate Procedure 1925 provides that a Rule

1925(b) statement “shall concisely identify each ruling or error that the
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appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). See also

Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. Super. 2000) (stating

that “[a] claim which has not been raised before the trial court cannot be

raised for the first time on appeal”).

This Court has considered the question of what constitutes a sufficient

Pa.R.A.P. 1925(b) statement on numerous occasions and has established that

“[an] appellant’s concise statement must properly specify the error to be

addressed on appeal.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.

Super. 2011). “[T]he Rule 1925(b) statement must be specific enough for the

trial court to identify and address the issue an appellant wishes to raise on

appeal.” Id. (brackets, internal quotation marks, and citation omitted).

The compulsory requirement of adhering to Pa.R.A.P. 1925 is captured

in the following excerpt from Kanter v. Epstein, 866 A.2d 394 (Pa. Super.

2004):

In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (Pa.

1999), the Pennsylvania Supreme Court specifically held that

“from this date forward, in order to preserve their claims for

appellate review, [a]ppellants must comply whenever the trial

court orders them to file a Statement of Matters Complained of on

Appeal pursuant to [Pennsylvania Rule of Appellate Procedure]

1925.” Lord, 719 A.2d at 309. “Any issues not raised in a

1925(b) statement will be deemed waived.” Id. This Court

explained in Riley v. Foley, 783 A.2d 807, 813 (Pa. Super. 2001),

that Rule 1925 is a crucial component of the appellate process
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because it allows the trial court to identify and focus on those

issues the parties plan to raise on appeal. This Court has further

explained that “a Concise Statement which is too vague to allow

the court to identify the issues raised on appeal is the functional

equivalent to no Concise Statement at all.” Commonwealth v.

Dowling, 778 A.2d 683, 686-[6]87 (Pa. Super. 2001). “Even if

the trial court correctly guesses the issues Appellants raise[] on

appeal and writes an opinion pursuant to that supposition the

issues [are] still waived.” Commonwealth v. Heggins, 809 A.2d

908, 911 (Pa. Super. 2002).

Kanter, 866 A.2d at 400.

Our law further makes clear that compliance with Pa.R.A.P. 1925(b) is

not simply a matter of filing any statement. Rather, the statement must be

concise and sufficiently specific and coherent as to allow the trial court to

understand the allegation of error and offer a rebuttal. These requirements

are evident in the following language from Dowling:

When a court has to guess what issues an appellant is appealing,

that is not enough for meaningful review. When an appellant fails

adequately to identify in a concise manner the issues sought to be

pursued on appeal, the trial court is impeded in its preparation of

a legal analysis which is pertinent to those issues.

. . . While Lord and its progeny have generally involved situations

where an appellant completely fails to mention an issue in his

Concise Statement, for the reasons set forth above we conclude

that Lord should also apply to Concise Statements which are so

vague as to prevent the court from identifying the issue to be

raised on appeal. In the instant case, [a]ppellant’s Concise

Statement was not specific enough for the trial court to identify

and address the issue [a]ppellant wished to raise on appeal. As

such, the court did not address it. Because [a]ppellant’s vague

Concise Statement has hampered appellate review, it is waived.

Dowling, 778 A.2d at 686-687 (citations and quotation marks omitted).

Moreover, as we stated in Reeves:
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There is a common sense obligation to give the trial court notice

as to what the trial court should address in its Rule 1925(a)

opinion. While there is a middle ground that [an appellant] must

travel to avoid having a Rule 1925(b) statement so vague that the

trial judge cannot ascertain what issues should be discussed in the

Rule 1925(a) opinion or so verbose and lengthy that it frustrates

the ability of the trial judge to hone in on the issues actually being

presented to the appellate court, see Kanter v. Epstein, 866

A.2d 394 (Pa. Super. 2004), that is not an onerous burden to place

on [an appellant]. It only requires using a little common sense.

Reeves, 907 A.2d at 2-3.

In addition, we note that, “[a]lthough this Court is willing to liberally

construe materials filed by a pro se litigant, pro se status confers no special

benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d 496, 498

(Pa. Super. 2005) (citing Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.

Super. 2003)). “To the contrary, any person choosing to represent himself in

a legal proceeding must, to a reasonable extent, assume that his lack of

expertise and legal training will be his undoing.” Adams, 882 A.2d at 498

(citing Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super. 1996)).

In essence, the purpose of requiring a concise statement of matters

complained of on appeal under Pa.R.A.P. 1925(b) is to allow the trial court to

easily discern the issues an appellant intends to pursue on appeal and to allow

the court to file an intelligent response to those issues in an opinion pursuant

to Pa.R.A.P. 1925(a). Father’s Pa.R.A.P. 1925(b) statement fails in this

regard.

The trial court offered the following comments regarding Father’s

Pa.R.A.P. 1925(b) statement, which compels our conclusion:
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Father filed his Notice of Appeal on May 22, 2018 and filed

what he styled as his Statement of Matters Complained of on

Appeal. His Statement, rather than being concise or directing the

[c]ourt to what Father asserts are errors or abuses of discretion,

is a recitation of Father’s testimony, his interpretation of the

evidence presented at the hearing, and his conclusions as to what

that testimony and evidence “proved.” Accordingly, for the

purpose of drafting this Opinion, I assume that Father believes my

decision was against the weight of the evidence and an abuse of

my discretion.

Trial Court Opinion, 7/2/18, at 4 (footnote omitted).

Our review of the certified record reflects that Appellant’s Pa.R.A.P. 1925(b)

statement contains four points that, as the trial court aptly stated, amount to

a recitation of Father’s testimony, his interpretation of the evidence presented,

and his conclusions as to what that testimony and evidence proved.

Specifically, Father offered the following in his Pa.R.A.P. 1925(b) statement:

A. April 25th, 2018 a final order in the family court from a trial for

custody modification request of an existing custody relocation

order from September of 2017 was entered not granting a

modification.

B. On April 25th in the trial referenced, it was proven that [Mother]

beats the children for punishment and the child youth services of

South Carolina were contacted by the father. The children also

advised [the trial court] that they are afraid of [Mother] due to

her beating them and that they are uncomfortable with [Mother’s]

fiancé [R.], entering their bedroom without knocking and yelling

at them to discipline them. It was also proven that before last

year, [Mother] nor the children lived with [R.]. The children

advised [the trial court] that they want more phone time and

[C.B.S.] also said she wants to see her father more often. The

court was made aware that [C.B.S.] pulled chunks of her hair out

of her head due to being upset with treatment from her mother.

The court was also made aware that [C.B.S.] said she thought

about hurting herself due to the treatment from her mother. It

was proven that [Mother] stopped critical counseling for [C.M.S.], that is needed for her anxiety. [Mother] testified she is not a
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doctor. All the issues listed in this paragraph contradict the

standing order: factors 9 & 10 listed maintaining a stable, loving

and nurturing relationship with the children. The children are

receiving much more punishment then they ever have, since being

relocated to South Carolina. The facts and transcripts show the

move to South Carolina is not beneficial to the children.

C. In the trial it was also proven that [Mother] used to let the

children call and text their father anytime and stay on the phone

as long as they wanted before the day in November when the

South Carolina child youth services started to investigate her for

suspected abuse. Out of retaliation [Mother] began limiting phone

time to only 30 minutes per day and only between 7-8 pm

between the children and their father, even on weekends. The

children are not allowed to accept calls from their father outside

of the 30-minute timeframe and do not have time to speak to

other family members due to the time constraints. [Mother] also

started taking their phones, bought by the father, so they could

not continue liberal phone contact as the order states. The

confiscation of the phones and time limits also defy the order for

the availability to text anytime and skype or video chat with their

father. This shows interference and clearly that the mother is not

maximizing their contact time nor foster a relationship with the

children and other parent. The current order also states the

mother is to encourage contact: I testified that [Mother] makes

the children abruptly hang up exactly at 30 minutes. It was also

proven the defendant tried to cut short visits for the children to

their father. The current order also states the special needs of the

children are to be met, it was proven otherwise that the children

are not having their needs considered, such as [C.M.S.’s] anxiety

is being ignored and [Mother’s] fiancé yelling at them often upsets

both.

D. The court was made aware that the children used to see their

grandmother everyday and in the order, she was to visit the

children often but has not visited them once since they moved.

Factor 5 listed in the current standing order.

Pa.R.A.P. 1925(b) Statement, 5/22/18, at 1-2.

The ultimate result of Father’s presentation is that any issues Father

wished to raise in this appeal are lost in the midst of the rambling narration
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laid out in his Pa.R.A.P. 1925(b) statement. In short, Father’s statement is

neither concise nor sufficiently specific and coherent to allow the trial court to

understand the specific allegations of error and offer a rebuttal. Rather, due

to the presentation of Father’s Pa.R.A.P. 1925(b) statement, the trial court

was compelled to guess at the issues that Father sought to preserve and raise

on appeal. However, even if the trial court correctly guessed the issues Father

wanted to raise, and wrote its opinion pursuant to that supposition, the issues

are waived. Kanter, 866 A.2d at 400. Given the foregoing, we conclude that

Father’s challenges to the trial court’s order denying modification are waived.

Therefore, we affirm the order.

Even if we were to ignore Father’s waiver of the issues due to his

inadequate Pa.R.A.P. 1925(b) statement and address the claims in his brief,

we would, nevertheless, affirm the trial court’s order.1 Basically, Father’s

____________________________________________

1 We note that, within the argument portion of his brief, Father has

intermingled claims attempting to challenge the propriety of the trial court’s

order permitting Mother to relocate. However, review of such claims is

precluded. It is undisputed that a notice of appeal must be filed within thirty

days of a disputed order. Pa.R.A.P. 903(a). We are mindful that, regarding

late attempts to challenge a support order, we have held that a party may not

use a modification petition as a substitute for an appeal by attempting to

relitigate matters adjudicated by the underlying support order. Florian v.

Florian, 689 A.2d 968, 971-972 (Pa. Super. 1997). See Boullianne v.

Russo, 819 A.2d 577, 580 (Pa. Super. 2003) (explaining that a petition to

modify an order of support cannot be a substitute for an appeal); Beegle v.

Beegle, 652 A.2d 376, 378 (Pa. Super. 1994) (stating “[a]llegations of error

in the factual findings of a lower court are properly addressed by filing

exceptions and an appeal to this Court, not by filing a petition to modify in the

same court that rendered the order.”). Likewise, a party may not use an
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three arguments in his appellate brief rest on the concept that, in light of the

evidence that Father contends is in his favor, the trial court abused its

discretion in denying modification.

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.

§§ 5321-5340, our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type

and our standard is abuse of discretion. We must accept findings

of the trial court that are supported by competent evidence of

record, as our role does not include making independent factual

determinations. In addition, with regard to issues of credibility

and weight of the evidence, we must defer to the presiding trial

judge who viewed and assessed the witnesses 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

We have stated:

____________________________________________ appeal from the disposition of a petition for modification of custody as a

substitute for an appeal from an underlying order for the purpose of

relitigating matters pertaining to the underlying order. Therefore, in order to

challenge a relocation order, the party must take a timely appeal from the

order.

Our review of the certified record reflects that the trial court entered its

custody order permitting Mother to relocate on September 27, 2017. It is

undisputed that Father did not file an appeal from that order. Because Father

did not pursue a timely appeal of the trial court’s relocation order dated

September 27, 2017, he may not do so now. Therefore, this Court is without

jurisdiction to hear any issue related to appropriateness of that order. Hence,

we are constrained to decline review of any issue as it pertains to the propriety

of the order dated September 27, 2017.
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The 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)).

In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated

the following regarding an abuse of discretion standard:

Although we are given a broad power of review, we are

constrained by an abuse of discretion standard when evaluating

the court’s order. An abuse of discretion is not merely an error of

judgment, but if the court’s judgment is manifestly 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 support the

court’s findings or that there is a capricious disbelief of evidence.

Id. at 18-19 (quotation and citations omitted).

With any custody case decided under the Act, the paramount concern is

the best interests of the child. 23 Pa.C.S. §§ 5328, 5338. Section 5323 of

the Act provides for the following types of custody awards:

(a) Types of award.—After considering the factors set forth in

section 5328 (relating to factors to consider when awarding

custody), the court may award any of the following types of

custody if it is in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.
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(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S. § 5323(a).

Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338. Section 5328(a) sets forth the sixteen best-interest factors that the

trial court must consider. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.

2011). Trial courts are required to consider “[a]ll 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).

Further, 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(a) 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, [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. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
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We have reviewed the briefs of the parties, the relevant legal authority,

the certified record, and the trial court’s opinion. In addressing Father’s

challenges to the weight of the evidence supporting the trial court’s denial of

modification of custody, the trial court offered the following discussion:

As noted above, I presided over the trial on Mother’s Petition

to Relocate less than a year before the instant matter came before

me. I heard from both parties and interviewed the two girls at that

time as well as in the instant hearing.

At the instant hearing, Father testified that Mother interferes

with his communications with the children to retaliate for him filing

a child abuse complaint against her. He further testified that the

girls are beaten by Mother and neglected in general, including the

cessation of emotional counseling which the younger child had

been receiving. (TR. p. 8).

I interviewed the girls without their Mother present to

determine if Father’s allegations of abuse were well founded. The

girls spoke to me by phone with the younger child doing most of

the talking. The children testified that Mother and her fiancé “yell”

and that they find this scary (TR. p 23), but that nobody in the

home is “being mean” to them (TR. p. 33). The younger child

testified that her Mother had “slapped” her on one occasion. The

children essentially testified that everything is going well but that

they miss Father and wish they could be with him more. Both

acknowledged that, if they lived with Father, they would likewise

miss Mother.

Mother testified that she does not interfere with Father’s

calls out of retaliation but that she sets what she feels to be

reasonable limits on the children’s calls and texts. (TR. p. 50).

She testified that she makes certain that the children have a daily

call with Father. (TR. p. 66-67). She further testified that when

the children misbehave, she takes away their access to all

electronics, including phone, television, and computers, as

punishment. (TR. p. 50). Father introduced screen shots of calls

and texts to demonstrate Mother’s interference but those screen

shots revealed phone calls of over 40 minutes and texts which

were occurring late into the evening on school nights. I did not

find that Mother’s decision to limit such contact was unreasonable
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or in contravention of my Order which required that contact be

exercised with common sense.

Mother testified that she employs corporal punishment

when the children refuse to comply with her directives. Mother is,

as I noted at the previous hearing, more of a disciplinarian than

Father. I found from Mother’s testimony and that of the children

that Mother may be overly strict with the children at times, but

not that she is abusive or that the children are being abused or

neglected. I may not agree that Mother’s use of corporal

punishment is her best course of action but I did not find that

there was any evidence of behavior which would constitute abuse.

Based on the totality of the evidence presented, I did not

find that Father had met his burden of presenting evidence which

would have justified modifying the present custodial arrangement

or holding Mother in contempt. Under cross examination; Father

testified that he has exercised custody of the children for every

holiday and long weekend contemplated by the September 27,

2017 Order and that he speaks with the children every day.

The girls are respectful and good students and appear to be

doing well, although they both naturally feel unhappiness as a

result of separation from their Father. That unhappiness,

however, does not appear to be as dire as Father asserts, but is,

rather, the type of unhappiness that children in separated families

often face.

In particular, the younger girl, who has always suffered from

anxiety, testified that her anxiety caused stomach issues have

gotten better since the move. Mother testified that the child is

using appropriate coping mechanisms which she learned from

therapy and doing quite well with her anxiety. (TR. p. 60). Mother

also testified that, contrary to Father’s assertions, she ended

therapy for the younger girl at the recommendation of Child’s

therapist, not out of neglect. (TR p. 50). After speaking with the

girls, I felt they could both benefit by being given some additional

coping skills from a professional for their issues surrounding the

separation from Father and, accordingly, ordered Mother to

engage a therapist for them.

I did not find that Mother is unreasonably interfering with

Father’s communication with the children; I found that she may

be too rigid with regard to the time constraints placed on phone
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calls. I, therefore, directed that those calls can be longer than 30

minutes, while again stressing common sense be used.

In any relocation case, there will be a period of adjustment

as well as emotional pain caused by the physical distance between

one parent and the children. This case is no different. I

sympathize with Father’s concerns for the well being of his

children from whom he is separated. The evidence, however, did

not demonstrate that the children are being neglected or abused

as Father has asserted or that Mother is thwarting his relationship

with the girls.

Trial Court Opinion, 7/2/18, at 4-7.

After a careful review of the record, we reject Father’s invitation to

substitute our judgment for that of the trial court. We remind Father that 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.

C.R.F., 45 A.3d at 443. Therefore, had we not found Father’s issues to be

waived, we would determine that the trial court’s conclusions do not involve

an error of law and are not unreasonable as shown by the evidence of record.

The trial court adequately explained its findings, and they are supported by

the competent evidence in the record.2 Hence, we would sustain the trial

court’s determination pursuant to C.R.F. ____________________________________________

2 To the extent Father alleges that the trial court erred in failing to address

the sixteen factors set forth in 23 Pa.C.S. § 5328(a), we observe that such

analysis was not required by the trial court in this particular instance. Father

is correct that a trial court must analyze the Section 5328(a) custody factors

when making an award of custody. However, this Court has explained that a

discussion of each factor is not necessary where the trial court does “not

change the underlying award of custody” but, rather, “modifie[s] a discrete
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____________________________________________ custody-related issue[.]” M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super.

2014).

In M.O., the parties resolved a discrete issue pertaining to vacation

custody time and transportation, and whether the father was required to be

off from work while the children stayed with him, with limited testimony taken

in chambers. The trial court then issued an order without examination of the

sixteen statutory factors. Id. at 1060. Mother appealed, arguing that the

court erred in refusing to expressly consider each of the sixteen factors in

making its decision, and in failing to provide rationale for its decision. Id. at

1061. On appeal, this Court rejected the mother’s argument, noting that the

court had made no award of custody, or even changed the amount of custodial

time either party had with the children, but addressed a subsidiary issue;

accordingly, we found that the trial court was not bound to address the sixteen

statutory factors or its reasons for the award. Id. at 1062-1063. Specifically,

the Court in M.O. stated:

The plain language of Section 5328(a) requires that the

sixteen enumerated factors be considered when the court is

determining a child’s best interest for the purpose of making an

award of custody. 23 Pa.C.S.A. §§ 5323(a), 5328(a). By

contrast, while the court must consider the child’s best interest

when modifying a custody order, the modification provision does

not refer to the sixteen factors of Section 5328. 23 Pa.C.S.A.

§ 5338(a). The cases in which we have applied Section 5328(a)

have involved the award of custody as defined by Section 5323(a)

or have involved a modification that also entailed a change to an

award of custody.

Id. at 1062 (footnote omitted). Subsequently, in A.V., this Court narrowed

the holding of M.O., finding that M.O. was applicable only to cases in which

custody was not directly modified. Id. at 824 n.4.

The instant order entered on April 26, 2018, did not modify the existing

custody order. Instead, the order directed Mother to enroll Children with a

counselor and instructed that phone calls may be longer than thirty minutes

in length. Order, 4/26/18. Hence, this situation is similar to M.O., in that the

trial court did not modify custody, but clarified discrete subsidiary issues that

arose under the prior custody order. M.O., 85 A.3d at 1062-1063; cf. A.V., 87 A.3d at 824 n.4. Therefore, the trial court was neither required to discuss

the sixteen custody factors, nor to delineate its reasoning on the record.
J-A30012-18

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2019

____________________________________________ Consequently, even if we had not determined Father has waived all issues, we

would have concluded that there was no merit to this claim of error.