J-S20016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRADLEY RZEPECKI

v.

JULIE RZEPECKI, NOW, 

HETHERINGTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 147 WDA 2022

Appeal from the Order Entered January 3, 2022

In the Court of Common Pleas of Erie County

Civil Division at No. 10228-2015

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY MURRAY, J.: FILED: June 24, 2022

Julie Rzepecki, now, Hetherington (Mother) appeals from the order 

granting the request of Bradley Rzepecki (Father), for modification of custody 

of the parties’ two children, B.R. (born October 2010) and P.R. (born March 

2013) (the Children). After careful consideration, we affirm.

The parties were married in 2009 and divorced in 2015. At the time of 

their divorce, the parties agreed to share legal and physical custody of the 

Children. See Marital Settlement Agreement, 4/20/15.

Four years later, Mother petitioned to modify custody. Mother alleged 

Father “had addiction issues and recently relapsed.” Petition for Modification 

of Custody, 4/20/19, at 2. Mother requested the court “grant primary 

residential custody of the children to [M]other, with periods of supervised 

visitation” with Father. Id. The parties subsequently entered into interim 
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consent orders before executing an order which provided, inter alia, that the 

Children “reside with [M]other, except that [F]ather shall have visitation” 

every other weekend, supervised by Children’s paternal grandparents.1 

Order, 8/7/19, at 1.

On March 22, 2021, Father filed a motion to modify the August 7, 2019 

order, averring “it is in the best interest of the [C]hildren that the Custody 

Order be modified to provide for equal physical custody.” Motion for 

Modification of Custody Consent Order, 3/22/21. On April 19, 2021, Mother 

filed preliminary objections challenging the court’s jurisdiction.2 Father filed 

a response in opposition. The trial court heard argument and thereafter 

entered an order finding the court had jurisdiction and denying Mother’s 

preliminary objections. Order, 7/6/21. Mother did not appeal.

The case was scheduled for trial in September 2021, but the parties 

cancelled after reaching a tentative agreement. They were unable to reach a 

final agreement, however, and the case proceeded to trial in December 2021. 

The court explained:

[I]t is Father’s position that, although he is to blame for the past 

few years’ disruption in his custodial relationship with the children, 

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1 By the time Father remarried in July 2020, “the custody supervision 

requirements were lifted by mutual agreement.” Trial Court Opinion, 1/3/22, 

at 2.

2

In 2017, Father consented to Mother relocating with the Children to Clymer, 

New York. Although Mother continued to submit to Pennsylvania’s jurisdiction 

through 2019, she claimed New York was the Children’s home state, and 

Pennsylvania no longer had “exclusive, continuing jurisdiction[.]” Preliminary 

Objections, 4/19/21, at 3.
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he is now rehabilitated and it is in the children’s best interests to 

return to a more balanced custody arrangement where both 

parents share equal importance in their children’s lives.

Mother is remarried and lives on a farm in Clymer, New 

York. She testified that she’s been primarily responsible for 

raising the children for most of their lives. Father’s drug and 

alcohol problems plagued their marriage and were a primary 

cause of its dissolution.

She admitted to unilaterally moving the children to 

homeschooling.

Trial Court Opinion, 1/3/22, at 4.

On January 3, 2022, the court issued an order and accompanying 

opinion addressing the enumerated custody factors set forth in the Child 

Custody Act at 23 Pa.C.S.A. § 5328(a). According to Mother, the court 

granted Father “additional time with the [C]hildren and for the [C]hildren to 

attend public school instead of homeschooling.” Mother’s Brief at 7. Mother 

filed a timely request for reconsideration. The trial court denied the request 

and Mother timely appealed. Both Mother and the trial court have complied 

with Pennsylvania Rule of Appellate Procedure 1925.3

Mother presents the following issues for review:

I. Whether the Trial Court committed an error of law and/or 

abused its discretion in finding [Father’s] testimony was 

credible considering the testimony and evidence presented 

at Trial?

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3 The trial court “observe[d] that the Concise Statement is not particularly 

concise.” Trial Court Opinion, 3/9/22, at 2. The court also stated, “to the 

extent [Mother] raises an issue on appeal that is not addressed in this 1925(a) 

Opinion, the same should be deemed waived for failure to identify the same 

in the Concise Statement.” Id.
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II. Whether the Trial Court committed an error of law and/or 

abused its discretion in finding that the best interest of the 

[C]hildren would be served by granting [Father] additional 

custody time considering the testimony and evidence 

presented at trial?

III. Whether the Trial Court committed an error of law and/or 

abused its discretion in disregarding the testimony of 

[Mother] and [C]hildren’s wishes to remain in home school 

and finding it to be in [C]hildren’s best interest to 

matriculate in Clymer Public School in the middle of the 

school year?

IV. Whether the Trial Court committed an error of law and/or 

abused its discretion in disregarding the testimony and 

evidence presented at trial and modified the current Order 

for the best interest of the [C]hildren by removing the 

necessity of [F]ather to engage in random drug and alcohol 

testing?

Mother’s Brief at 4-5.

In reviewing Mother’s issues, we recognize

the 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 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.

Moreover,

on 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.
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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.

The test is whether the evidence of record supports the trial 

court’s conclusions.

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

In addition, 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, [giving] due deference to the trial court’s weight 

and credibility determinations,’ the trial court erred or abused its 

discretion[.]” King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citation 

omitted). 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).

In all four issues, Mother argues the trial court erred because its 

decisions (finding Father credible, granting Father additional time with

Children, requiring Children to attend public school, and declining to impose 

random drug and alcohol testing upon Father), “have not been substantiated 

by the evidence and testimony presented at trial.” Mother’s Brief at 11. We

disagree. 

When deciding a petition to modify custody, a court must conduct a 

thorough analysis of the best interests of the child based on the 
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relevant Section 5328(a) factors. See E.D. v. M.P., 33 A.3d 73, 80 (Pa. 

Super. 2011). It is well-settled that “the best interest of the child is 

paramount.” See B.S.G. v. D.M.C., 255 A.3d 528, 536 (Pa. Super. 2021)

(citation omitted). “The courts of this Commonwealth have consistently held 

that the ultimate consideration in custody matters is to determine that which 

is in the best interests of the child and that such determinations must be made 

on a case-by-case basis.” Myers v. DiDomenico, 657 A.2d 956, 957 (Pa. 

Super. 1995).

Instantly, four individuals testified at trial: Mother, Father, and the two 

Children. The Children were 11 and 8 years old at the time, and testified “in 

chambers with counsel present.” See Trial Court Opinion, 1/3/22, at 2. In 

the opinion accompanying its order, the trial court summarized the testimony 

of Mother, Father and the Children, concluding that “based on the testimony 

and other evidence presented at trial, Father’s Petition will be granted in part.” 

Id. at 6. The court summarized the “facts adduced at trial . . . in conjunction 

with the relevant custody factors set forth at 23 Pa.C.S.A. § 5328(a), keeping 

in mind that the [c]ourt’s paramount concern in child custody cases is the best 

interests and safety of the children.” Id. (citation omitted).

In its Rule 1925(a) opinion, the trial court expanded upon the reasoning

set forth in its opinion accompanying the modification order. See Trial Court 

Opinion, 3/9/22. The Honorable Joseph M. Walsh, III, sitting as the trial court, 

cited the record and statutory custody factors supporting the order. Id. After 
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careful consideration, we discern no abuse of discretion. The record supports 

President Judge Walsh’s comprehensive best interest analysis pursuant to 

Sections 5328 (factors to consider when awarding custody) and 5338 

(modification of existing order). As President Judge Walsh has authored a 

thorough and well-reasoned opinion addressing Mother’s issues, we 

adopt the March 9, 2022 opinion as our own and affirm the custody order on 

that basis.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/24/2022