J-S16030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

P.M.

Appellee No. 3007 EDA 2015

Appeal from the Order Entered September 14, 2015

In the Court of Common Pleas of Wayne County

Civil Division at No(s): 61-2012-DR

BEFORE: OTT, J., DUBOW, J., and JENKINS, J. 

MEMORANDUM BY OTT, J.: FILED MARCH 17, 2016

R.M. (“Father”) appeals pro se from the order entered on September 

15, 2015, in the Court of Common Pleas of Wayne County, denying his 

exceptions to the custody master’s report filed on July 14, 2015, with 

respect to his children, C.M., a female, born in October of 2006, and C.M., a 

male, born in October of 2008 (collectively, “the Children”). The master’s 

report recommended that the court deny Father’s petition for modification of 

the existing custody order, which granted Father supervised visitation,1at 

his financial expense. We vacate and remand. 

____________________________________________

1 We observe that the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340,

does not use the term “visitation” to describe periods of partial physical 

custody, shared physical custody, or supervised physical custody. See 23 

(Footnote Continued Next Page)
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The certified record reveals an extensive procedural history of the 

underlying custody matter initiated by Father in February of 2012, when he 

requested primary physical and shared legal custody of the Children. 

Father’s custody action proceeded to a custody conference on February 8, 

2012, before Warren Schloesser, Esquire, who served as the custody master 

throughout this case. The parties entered into an interim agreement during 

the custody conference granting P.M. (“Mother”) primary physical custody 

and Father supervised physical custody “[u]p to two, two hour sessions” per 

week, at the office of Wayne County Children and Youth Services 

(“WCCYS”), with Father to pay the costs.2 Interim Agreement, 2/8/12, at 2. 

We summarize the remaining relevant history as follows.

By agreed-upon order dated April 20, 2012, the court directed that a 

Wayne County Sheriff’s Deputy be present in the visitation room at WCCYS, 

along with the WCCYS aide supervising the visits, at Father’s financial 

expense. Agreement, 4/20/12, at ¶¶ 1-2. On May 11, 2012, the parties 

agreed, inter alia, that the WCCYS aide was no longer obligated to supervise 

the visits; rather, Dr. [Michael] Stefanov would supervise the visits at 

(Footnote Continued) _______________________

Pa.C.S.A. § 5322(b). Herein, we refer to Father’s custody award as 

supervised physical custody.

2 The certified record reveals, by the time of this custody conference, a 

Protection from Abuse (“PFA”) order was entered against Father on behalf of 

Mother and the Children for a period of three years.
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WCCYS. Stipulation and Order, 5/11/12, at ¶ 1. On June 13, 2012, the 

parties agreed that Father will begin individual counseling with Dr. Stefanov, 

and that they will begin family counseling with Dr. John Seasock. Second 

Interim Agreement, 6/13/12, at 7. In addition, Father and Mother agreed to 

follow the custody recommendations made by Dr. Seasock. Id. at 7, 11-12. 

On September 7, 2012, Father filed pro se a petition for contempt 

against Mother, alleging that Mother failed to participate in the counseling 

with Dr. Seasock. A hearing occurred before the trial court on October 11, 

2012. By order the same date, the court dismissed Father’s petition for 

contempt. 

In addition, on September 7, 2012, Father filed pro se a petition for 

custody wherein he requested shared physical custody. Following an 

evidentiary hearing, by report and recommendation dated November 8, 

2012, the master maintained Father’s supervised physical custody for two, 

two-hour sessions per week at WCCYS. Master’s Report and 

Recommendation, 11/8/12, at ¶¶ 1-3. Further, the master directed that 

Father undergo a psychological evaluation by Dr. Stefanov within 90 days, at 

Father’s expense.3 Id. at ¶ 5. Father filed pro se exceptions to the master’s 

____________________________________________

3 The record includes a confidential psychological evaluation by Dr. Stefanov 

dated January 14, 2013, wherein he opined that no evidence exists 

indicating that Father suffers from any psychological or anger-related 

disorder. See Psychological Evaluation, 1/14/13, at 5. In the evaluation, 

Dr. Stefanov stated that he did not observe Father with the Children. Id.
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report, which the trial court denied by order dated December 17, 2012. 

Thereafter, the custody litigation continued, as follows.4 

By order dated June 18, 2013, the trial court adopted the master’s 

report and recommendation filed on May 28, 2013, that Father have 

visitation one hour per week, to be supervised for a 90-day period by 

“Douglas Bill or a similar clinically experienced male supervisor.” Master’s 

Report and Recommendation, 5/28/13, at ¶¶ 1, 3. The order provided that 

the male supervisor issue a report after 75 days, and that a hearing be 

subsequently scheduled.5 Id. at ¶¶ 4-5. 

On September 19, 2013, Father filed a motion for a hearing before the 

custody master to “allow [him] to have eight [ ] hours a week of 

____________________________________________

4 Relevant to Father’s issues on appeal is the indicated finding by WCCYS in 

December of 2012, concerning Mother’s allegation that Father sexually 

abused his daughter, C.M. Father filed an appeal to the Pennsylvania 

Department of Public Welfare (“DPW”), Bureau of Hearing and Appeals 

(“Bureau”), to expunge the indicated report of child abuse. By order dated 

January 16, 2014, the Bureau directed that DPW expunge the indicated 

report from the ChildLine Registry. See Order, 1/16/2014. 

5

In the May 28, 2013 report, the master stated that a hearing was held on 

May 14, 2013. The master stated that, prior to the commencement of the 

hearing, Father had agreed to supervised physical custody by “Douglas Bill 

or some other male clinician who would then be able to submit a report of 

his observations.” Master’s Report and Recommendation, 5/28/13, at 1-2 

(unpaginated). In addition, the parties had agreed that the supervised 

physical custody would occur “outside of the [WCCYS] office.” Id. at 1 

(unpaginated). Notably, the record includes a letter from Douglas Bill to the 

custody master dated September 6, 2013, wherein he stated that Father 

attended four sessions of supervised physical custody. Father then “chose 

to suspend the visits and return to your [c]ourt to seek a decision.” Letter, 

9/6/13, at 1.
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unsupervised visits” with the Children. Motion, 9/19/13, at ¶ 4. On January 

24, 2014, following a hearing, the master filed a report and recommendation 

that Father’s supervised physical custody be held at the office of Dr. 

Stefanov for one hour per week for eight sessions, and that a subsequent 

hearing be held with respect to Dr. Stefanov’s observations of Father’s 

custodial periods. Master’s Report and Recommendation, 1/24/14, at ¶¶ 2-

3. By order dated April 1, 2014, following exceptions filed by Mother, the 

trial court adopted the master’s report.

On July 3, 2014, Father filed pro se a petition for modification of the 

existing custody order dated April 1, 2014, wherein he requested, inter alia, 

three overnights of physical custody per week. Following a hearing, the 

custody master, by report and recommendation filed on August 5, 2014, 

maintained the April 1, 2014 custody order. Father filed exceptions, and the 

trial court scheduled an oral argument. By order dated October 16, 2014, 

the trial court denied Father’s exceptions. On November 19, 2014, the trial 

court adopted the master’s August 5, 2014 report and recommendation.

This appeal arises from the petition for modification of the existing 

custody order filed by Father pro se on May 18, 2015, wherein he again 

requested shared custody. The master held a hearing on June 30, 2015. By 

report and recommendation filed on July 14, 2015, the master maintained 

the existing custody order. On July 27, 2015, Father filed exceptions pro se. 

The trial court held oral argument on September 2, 2015. 
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By order dated September 14, 2015, and entered on September 15, 

2015, the trial court denied Father’s exceptions and adopted the master’s 

July 14, 2015 report and recommendation. Father timely filed pro se a 

notice of appeal and a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court issued a Rule 

1925(a) opinion on October 29, 2015.

Father presents the following issues for our review:

1. Why is the Wayne County court system doing this to me?

2. Why is [Mother] doing this to me?

3. Why if I am innocent, proven innocent and cleared[] am [I] 

being persecuted, punished and extorted?

4. Why take a good father away from two young children who 

need him so very much[] if the dad is innocent?

5. Why is [the trial court] manipulating, skewing, dishonest and 

ste[a]ling children from innocent parent – me?

6. Why can’t I have my kids back in my life in the form of a 

shared legal [and] physical custody order? 

Father’s brief at 13.

As best as we can discern, Father argues on appeal that the evidence 

is insufficient to support the subject custody order due to (1) the written 

report by Dr. Stefanov dated January 14, 2013; and (2) the indicated report 

of child sexual abuse being expunged from the ChildLine Registry pursuant 

to the Bureau’s January 16, 2014 order. See Father’s brief at 17. 

The scope and standard of review in custody matters is as follows.
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[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. . . . 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. 

R.M.G., Jr. v. F.M.G., 2009 PA Super 244, 986 A.2d 1234, 1237 

(Pa. Super. 2009) (quoting Bovard v. Baker, 2001 PA Super 

126, 775 A.2d 835, 838 (Pa. Super. 2001)). 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.

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.

R.M.G., Jr., supra at 1237 (internal citations omitted). The test 

is whether the evidence of record supports the trial court’s 

conclusions. Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d 

533, 539 (Pa. Super. 2006).

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

The primary concern in any custody case is the best interests of the 

child. “The best-interests standard, decided on a case-by-case basis, 

considers all factors that legitimately have an effect upon the child’s 
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physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 

A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 

677 (Pa. Super. 2004).

Relevant to this custody case are the factors set forth in Section 

5328(a) of the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340, which 

provides:

§ 5328. Factors to consider when awarding custody.

(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 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)(1) 

and (2) (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.
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 (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.

 (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).6 

____________________________________________

6 The Act was amended, effective January 1, 2014, to include the additional 

factor at 23 Pa.C.S. § 5328(a)(2.1).
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This Court has stated that, “[a]ll of the factors listed in section 

5328(a) are required to be considered by the trial court when entering a 

custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original). Further,

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, 

[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., 87 A.3d at 822-823. 

Upon review of the certified record before this Court, the trial court 

failed to apply the Section 5328(a) custody factors when entering the 

subject order. Likewise, the court failed to enumerate the Section 5328(a) 

factors in its Rule 1925(a) opinion. As such, we do not know what facts the 

trial court considered when reaching its custody decision. Without factual 

findings, we cannot conduct a meaningful appellate review of Father’s 

asserted errors. See 23 Pa.C.S.A. § 5323(d); A.V., supra at 823. 
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Likewise, to the extent the court relied upon the master’s 

consideration of the Section 5328(a) custody factors in its July 14, 2015 

report and recommendations, we conclude that the master cursorily 

considered them and failed to discuss findings of fact in support of these 

legal conclusions. The master stated as follows, in part: 

[T]he undersigned is seriously concerned about the materials 

posted on [Father]’s Facebook page, and what those postings 

indicate about his character and thought process. This 

questionable judgment touches on the consideration set forth in 

23 Pa.C.S.[A.] [§] 5328(a)(15) which includes the mental 

condition of the party. Based upon his June 30, 2015 testimony, 

the mental condition of [Father] is a cause for concern.

However, the statute requires that all of those considerations be 

dealt with and [Father] in his testimony, raised many of them for 

consideration. I find that the mother is better able to provide 

adequate physical safeguards and supervision of these two 

children; that the mother is better able to provide for stability 

and continuity in the children’s education, family life and 

community life; that the mother is more likely to maintain a 

loving, stable, consistent and nurturing relationship with the 

children adequate for their emotional needs; that the mother is 

more likely to attend to the daily physical, emotional, 

developmental, educations and special needs of the children; 

that the mother has greater availability to care for the children; 

and most particularly, that the level of conflict between the 

parties is such that cooperation between them with respect to 

the children’s well-being at this time is not possible.

Admittedly in the context of this case, it is difficult to consider 

the other factors for various reasons, such as the still young age 

of the children gives limited weight to their preference, and since 

the father refuses to avail himself of supervised visitation, it is 

difficult to assess his ability to care for the children-testimony a 

custody supervisor could provide.

Master’s Report and Recommendation, 7/14/15, at 3-4 (unpaginated).
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Based on the foregoing, we conclude that neither the trial court’s 

September 15, 2015 order, nor its Rule 1925(a) opinion, “delineate[s] the 

reasons for its [custody] decisions[.]” 23 Pa.C.S.A. § 5323(d). The trial 

court also failed to state this reasoning in open court following the 

conclusion of the trial testimony. As such, we conclude the trial court 

erred.7

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

____________________________________________

7 Notably, in the July 14, 2015 report and recommendations, the master 

stated that Mother testified and introduced documentary evidence during the 

hearing on June 30, 2015, which is not included in the transcript certified 

before this Court. Master’s Report and Recommendation, 7/14/15, at 2 

(unpaginated). In addition, the master stated that Father testified he is 

employed, and he received written communication from the Children, which 

is not included in the transcript. Id. Rather, the June 30, 2015 transcript in 

the certified record includes only Father’s testimony on direct examination 

regarding his visit to the Children’s school and a statement made by Father 

after the hearing but while still on the record. Id. at 3-4.

“It is the obligation of the appellant to make sure that the record 

forwarded to an appellate court contains those documents necessary to 

allow a complete and judicious assessment of the issues raised on appeal.” 

Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996) (citation 

omitted); Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super. 2004). Where 

an appellant fails to fulfill his obligation, “the appellate court may take such 

action as it deems appropriate, which may include dismissal of the appeal.” 

Pa.R.A.P. 1911(d); 42 Pa.C.S.A. § 706. Based on our conclusion that the 

trial court erred in failing to consider the Section 5328(a) custody factors, 

we do not dismiss this appeal. Rather, we caution Father that, had the court 

set forth its mandatory assessment of the factors, we would have been 

unable to conduct a proper review of Father’s issues without complete 

transcripts of the relevant hearings in the certified record.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/17/2016