J

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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 20 10 ) and P.R. ( born March

20 13 ) (the Children)

. After careful consideration, w e affirm.
The parties were married in 2009 and divorced in 2015. At the time of
their divorce, the parties agreed t o 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 interimJ

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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”

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

Order, 8/7/19, at 1.

On March 22, 2021, Father filed a mo tion 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. T he 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 reach ing a tentative agreement. They were unable to reach a
final agreement, however, and the case p roceeded to trial in December 2021.
The court explained:

[I]t is Father’s position that, although he is to blame for the pas t few years’ disruption in his custodial relationship with the children,

_________________ __________ ______ ____ _______

1 B y the time Father remarried in July 2020, “the custody supervision requirements were lifted by mutual agreement.” Trial Court Opinion, 1/3/2 2 , 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[.]” Prelimin ary Objectio ns, 4/19/21, at 3.J

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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 equ al 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 i ts dissolution.

She admitted to unilaterally moving the children to homeschooling.

Tr i al Court Opinion, 1/3/22, at 4.

O n 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 reconsider ation . 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?

_________________ __________ ______ ____ _______

3 The trial court “observe[d] that the Concise Statement is not particularly concise.” Trial Court Opinion, 3/9/2 2 , at 2. The court also stated, “to the extent [Mother] raises an issue on appeal that is not addressed in this 1925(a) O pinion, the same should be deemed waived for failure to identify the same in the Concise Statement.” Id.J

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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 g ranting [Father] additional custody time considering the testimony and evidence presented at t rial?

III. Whet her 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 removi ng 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

t he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. ... However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination [.] ... Th us, an appellate court is empowered to determine whether th e trial court’ s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreason able in view of the trial court’ s factual findings; and thus, represent a gross abuse of discretion.

Moreover,

o n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.J

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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 th is Court’ s function to determine whether the trial

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

on the evidence presented, [giving] d ue 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 up on 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 theJ

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re levant 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 ba sis. ” Myers v. DiDomenico , 657 A.2d 956, 957 ( Pa.

Super. 1995)

. Instantly, f our individuals testified at trial: Mother, Father, and the two

Children. The Children were 11 and 8 years old at th e 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 t rial . . . 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 statuto ry custody factors supporting the order. Id. AfterJ

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careful consideration, we discern no abuse of d iscretion. The record supports

President Judge Walsh’s comprehensive best interest analysis pursuant to

Sections 532 8 (factors to consider when awarding cu stody) and 5338

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

thorough and well

- reasoned opinion addressing Mother’s issues, we

a dopt 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