J-S52030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.E.D.

 Appellee

v.

G.D.M. 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 53 EDA 2016

Appeal from the Order Entered December 7, 2015 in 

the Court of Common Pleas of Philadelphia County 

Domestic Relations at No: 0C0513395

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,*JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 18, 2016

G.D.M. (“Mother”) appeals from the order entered December 7, 2015, 

in the Court of Common Pleas of Philadelphia County, which awarded 

primary physical custody of her son, S.S.D. (“Child”), born in February of 

2005, to his father, S.E.D. (“Father”). After careful review, we affirm.

On April 4, 2014, Father filed a petition to modify the parties’ existing 

custody order, entered March 10, 2009. Pursuant to that order, Mother 

exercised primary physical custody of Child, Father exercised partial physical 

custody, and both parents exercised shared legal custody. Following a 

hearing on July 9, 2014, the trial court entered an interim order awarding 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S52030-16

- 2 -

Father primary physical custody and sole legal custody of Child, and 

awarding Mother partial physical custody when the parties agree. The court 

conducted further hearings on February 5, 2015, and August 17, 2015, after 

which it entered additional interim orders. The court’s August 17, 2015 

order expanded Mother’s periods of partial physical custody to every other 

weekend. 

Following a final hearing, on December 7, 2015, the court entered the 

order complained of on appeal, which it again described as an “interim order 

in the best interest of the child[.]”1 Order, 12/7/15, at 1. Pursuant to this 

order, Father was awarded primary physical and sole legal custody of Child. 

Mother was awarded partial physical custody every other weekend from 

Friday at 6:00 p.m. until the start of school on Monday morning. Mother 

also was awarded partial physical custody following her noncustodial 

weekends from Monday after school until the start of school on Tuesday 

morning. Mother timely filed a notice of appeal on January 6, 2016, along 

with a concise statement of errors complained of on appeal.2

Mother now raises the following issue for our review: “Did the trial 

court abuse its discretion and commit an error of law in transferring legal 

____________________________________________

1 Mother was pro se during the hearing, while Father was represented by 

counsel.

2 The trial court did not file an opinion in this matter, either accompanying 

the subject custody order, or in response to Mother’s concise statement. 
J-S52030-16

- 3 -

and physical custody without addressing each of the sixteen custody factors, 

either in open court on the record or in writing shortly thereafter?” Mother’s 

Brief at 1 (unnecessary capitalization and suggested answer omitted).

Before reaching the merits of Mother’s issue, we first must consider 

whether the December 7, 2015 custody order was appealable. “‘[S]ince we 

lack jurisdiction over an unappealable order it is incumbent on us to 

determine, sua sponte when necessary, whether the appeal is taken from an 

appealable order.’” Gunn v. Automobile Ins. Co. of Hartford, 

Connecticut, 971 A.2d 505, 508 (Pa. Super. 2009) (quoting Kulp v. 

Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)).

It is well-settled that, “[a]n appeal lies only from a final order, unless 

permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. 

Super. 2013). Generally, a final order is one that disposes of all claims and 

all parties. See Pa.R.A.P. 341(b). “[A] custody order will be considered 

final and appealable only if it is both: 1) entered after the court has 

completed its hearings on the merits; and 2) intended by the court to 

constitute a complete resolution of the custody claims pending between the 

parties.” G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996). 

In this case, while the trial court described the custody order of 

December 7, 2015, as an “interim order,” our review of the record does not 

reveal that the court intended to conduct any future custody proceedings. 

The court did not schedule any additional proceedings, nor did the court 

state during the final hearing that any additional proceedings would be 
J-S52030-16

- 4 -

necessary. Further, the order appears to completely resolve the parties’ 

custody dispute. We therefore conclude that the December 7, 2015 custody 

order is final and appealable, and we proceed to address the merits of 

Mother’s claim.

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.

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

“When a trial court orders a form of custody, the best interest of the 

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) 

(citation omitted). The factors to be considered by a court when awarding 

custody are set forth at 23 Pa.C.S.A. § 5328(a).

(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 
J-S52030-16

- 5 -

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. 

(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. 
J-S52030-16

- 6 -

(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).

Here, Mother argues that the trial court abused its discretion by 

awarding primary physical custody of Child to Father without considering the 

Section 5328(a) factors. Mother’s Brief at 3-4. Mother observes that the 

court did not file a written opinion explaining its custody decision, nor did 

the court set forth its analysis of the factors at the conclusion of the custody 

hearing on December 7, 2015. Id.

Mother is correct that trial courts must generally conduct an analysis 

of the Section 5328(a) factors when making any award of custody, and that 

failure to do so is an error of law. See 23 Pa.C.S.A. § 5328(a); S.W.D., 96 

A.3d at 401. However, it was not necessary for the trial court to consider 

the Section 5328(a) factors in the instant matter, as the record reveals that 

the court entered the subject custody order upon agreement by both parties. 

The following exchange took place during the hearing on December 7, 2015.

[Mother]: . . . . I would like more time with my son.

THE COURT: Have you discussed it with dad?

[Mother]: I didn’t know I was allowed to.

THE COURT: Do you have a PFA?

[Mother]: No.
J-S52030-16

- 7 -

THE COURT: You can talk to him.

[Mother]: Okay. But is it his decision, like, I don’t know?

THE COURT: Look, you know, the Court can’t make all 

decisions in the life of the children that come to court. It would 

seem to be an easier way to do it as nature [sic] parents to 

come to an agreement to make it easier for everybody.

***

THE COURT: . . . . What was the offer again?

[Father’s counsel]: That [Child] go to be with mom every 

Monday night when she has him for the weekend, obviously, that 

additional Monday would follow the weekend. It would be a 

three day weekend and then on the off weekend she would still 

be with him for Monday nights.

THE COURT: Give it to me. It’s every other weekend, 

when?

[Father’s counsel]: Every other weekend from Friday to 

Monday.

THE COURT: Friday, what time?

[Father’s counsel]: Friday at 6:00 p.m.? Is it 6:00 p.m.?

[Father]: Um-hum. Six o’clock.

[Father’s counsel]: Six o’clock to Sunday at seven. I mean 

until Monday. It will be until Monday. Mom will drop him off at 

school on Monday morning. And then on the alternate week, 

mom can pick him up from school after school on Monday and he 

would spend the night on Monday night.

***

THE COURT: You got that?

[Mother]: Yes.
J-S52030-16

- 8 -

THE COURT: Acceptable?

[Mother]: (Unresponsive)

THE COURT: Hello.

[Mother]: If that’s what I can get, yes. 

THE COURT: Well, that’s what he’s offering.

[Mother]: Okay.

(Brief Pause)

THE COURT: You know if you learn how to talk to him 

there’s probably a whole lot more you can get. I don’t know, but 

you have to talk to him.

[Mother]: I don’t have a problem with talking to him. I 

just don’t want to argue with him.

THE COURT: Well, I can’t control your arguing only you 

two can so we’ll draft up the new order to expand your rights.

[Father’s counsel]: Thank you, Your Honor. 

N.T., 12/7/15, at 8-12. 

Thus, the record demonstrates that Mother agreed, albeit reluctantly, 

to the proposed custody schedule presented by Father’s counsel. See

Pa.R.C.P. No. 1915.7 (“If an agreement for custody is reached and the 

parties desire a consent order to be entered, they shall note their agreement 

upon the record or shall submit to the court a proposed order bearing the 

written consent of the parties or their counsel.”). While Mother may file a 

petition seeking to modify the December 7, 2015 custody order in the best 
J-S52030-16

- 9 -

interest of Child, she may not claim that the trial court erred by entering 

that order after she expressly consented to it in open court.

Based on the foregoing, we conclude that the trial court did not abuse 

its discretion by entering the December 7, 2015 custody order without 

consideration of the Section 5328(a) factors. Accordingly, we affirm the 

court’s order.

Order affirmed. 

Judge Strassburger joins this memorandum.

President Judge Emeritus Ford Elliott files a dissenting memorandum 

statement. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016