J-A14010-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.R.B. 

Appellant

v.

D.G.G.

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2186 MDA 2015

Appeal from the Order Entered November 16, 2015 in 

the Court of Common Pleas of York County Civil 

Division at No(s): 2013-FC-001675-03

BEFORE: BOWES, OTT, PLATT*, JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 21, 2016

Appellant, J.R.B. (“Father”), appeals from the November 16, 2015 

custody order granting him primary physical custody during the school year, 

partial physical custody during the summer, and shared legal custody with 

respect to the male children, B.B., born in January 2006, and A.B., born in 

November 2009. Upon careful review, we affirm.

We summarize the relevant factual and procedural history as follows. 

B.B. and A.B. were born during the marriage of Father and D.G.G. 

(“Mother”). Upon separating in May or June of 2014, Mother relocated to 

Sparks, Maryland. N.T., 10/21/15, at 13-14; Stipulation of Facts, at 1. 

Father remained in the marital home in Jacobus, Pennsylvania, a driving 

distance from Mother’s home of approximately thirty-five minutes. 
J-A14010-16

- 2 -

Stipulation of Facts, at 1, 3 (unpaginated). The parties agreed, without 

court intervention, to share physical custody equally, on a schedule of three 

days one week and four days the following week. N.T., 10/21/15, at 13, 47; 

Stipulation of Facts, at 2 (unpaginated). In addition, the parties agreed that 

B.B. would attend elementary school in the Dallastown School District, 

where Father resides, and A.B. would attend the Goddard School in Sparks, 

Maryland. Stipulation of Facts, at 2 (unpaginated).

On June 10, 2015, Mother filed a custody complaint. Father filed a 

counterclaim on July 25, 2015. Following a conciliation conference, by 

interim order dated August 4, 2015, the trial court granted the parties 

shared legal custody, Father primary physical custody during the school 

year, and Mother partial physical custody three weekends per month. The 

court granted the parties shared physical custody on an alternating weekly 

basis during the summer.

On October 13, 2015, Mother filed a petition for contempt, wherein 

she asserted that Father unilaterally enrolled B.B. in a basketball league in 

Dallastown, Pennsylvania, which held two games every weekend. Petition 

for Contempt, 10/13/15, at ¶ 6. Father filed an answer and counter petition 

for contempt on October 20, 2015, wherein he asserted, inter alia, that 

Mother unilaterally enrolled B.B. and A.B. in rock climbing in Maryland during 

her custodial periods. Answer and Counter Petition, 10/20/15 at ¶ 21. 

The trial court held a hearing on the custody and contempt matters on 

October 21, 2015. By that date, B.B. and A.B. attended separate schools in 
J-A14010-16

- 3 -

the Dallastown School District. Stipulation of Facts, at 1-2 (unpaginated). 

B.B. was in the fourth grade. Id. A.B. was in kindergarten. Id. at 2 

(unpaginated). 

Mother testified on her own behalf,1and she presented the testimony 

of her sister, L.H., and her mother, C.M.G. (“Maternal Grandmother”). 

Father testified on his own behalf.2 In addition, the trial court interviewed 

B.B. in camera in the presence of the parties’ counsel.

By order dated November 16, 2015, and entered on November 17, 

2015, the trial court granted the parties shared legal custody, Father 

primary physical custody during the school year, and Mother partial physical 

custody three weekends per month, from Friday at 4:00 p.m. until Monday 

morning before school. The trial court granted Mother primary physical 

custody during the summer, and Father partial physical custody on 

alternating weekends. Further, the court granted the parties two 

____________________________________________

1 Mother requested partial physical custody three weekends per month 

during the school year, from Friday after school until Monday morning, and 

primary physical custody during the summer. N.T., 10/21/15, at 48.

2

Father requested that Mother have partial physical custody two weekends 

per month during the school year, from Thursday afternoon until Tuesday 

morning, and that the parties share physical custody during the summer on 

an alternating weekly basis. N.T., 10/21/15, at 165.
J-A14010-16

- 4 -

nonconsecutive, uninterrupted weeks of physical custody during the 

summer. In addition, the court set forth a holiday schedule.3 

Father timely filed a notice of appeal and a concise statement of errors 

complained of on appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(a)(2)(i) and (b). The trial court filed an opinion pursuant to 

Pa.R.A.P. 1925(a) on January 12, 2016.

Father presents the following issues for our review: 

I. Did the trial court commit an abuse of discretion and/or err by 

making inconsistent rulings on the relevance and admissibility of 

evidence?

II. Did the trial court commit an abuse of discretion and/or err in 

completely disregarding competent and credible evidence?

III. Did the trial court commit an abuse of discretion and/or err 

in its ruling on evidence that was not presented during 

testimony[?]

IV. Did the trial court commit an abuse of discretion and/or err 

by strictly limiting the parties’ time to present their case to the 

court, as well as allowing one party more time than the other 

party?

V. Did the trial court commit an abuse of discretion and/or err in 

failing to properly consider the well[-]reasoned preference of the 

child based on the child’s maturity and judgment, pursuant to 23 

Pa.C.S. § 5328(a)(7)?

____________________________________________

3 The trial court placed its findings on the record in open court at the 

conclusion of the testimonial evidence. The court found both parties in 

contempt of the interim order. See N.T. 10/21/15, at 255-256. However, 

the court did not impose sanctions against them.
J-A14010-16

- 5 -

VI. Did the trial court commit an abuse of discretion and/or err 

in failing to hear and consider evidence Father wished to offer?

Father’s brief at 9-10.

Our scope and standard of review is as follows.

[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).
J-A14010-16

- 6 -

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 

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).

Child custody actions are governed by the Child Custody Act (“Act”), 

23 Pa.C.S. §§ 5321-5340. 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). This 

statutory section provides as follows.

§ 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).

 
J-A14010-16

- 7 -

 (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.

 (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.
J-A14010-16

- 8 -

23 Pa.C.S. § 5328(a). 

We have further explained as follows.

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 [§ 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., supra at 822-823.

Instantly, the trial court considered the § 5328(a) custody factors and 

delineated the reasons for its decision on the record in open court at the 

conclusion of the testimonial evidence. See N.T., 10/21/15, at 241-256. In 

its Rule 1925(a) opinion, the court addressed the errors asserted by Father 

in his Rule 1925(b) statement. See Trial Court Opinion, 1/12/16. 

We note that the trial court determined it was “without sufficient 

information” to address Father’s first, second, third, and sixth assertions. 

Id. at 2-4. Father presents precisely the same assertions in his first, 

second, third, and sixth issues in his statement of questions involved in his 

brief. We agree with the trial court that these issues are vague such that it 
J-A14010-16

- 9 -

was unable to identify them and/or have any basis in which to respond to 

them. Therefore, we deem Father’s first, second, third, and sixth issues 

waived. See Reinert v. Reinert, 926 A.2d 539 (Pa.Super. 2007) 

(overbroad and imprecise issue in Pa.R.A.P. 1925(b) statement and on 

appeal results in waiver of issue because it fails to identify in concise manner 

the issue to be pursued).

Turning to his fourth issue on appeal, Father baldly asserts that there 

was a “disparity in time allowed” for the parties to present their cases, with 

Mother being afforded more time. Father’s brief at 23. Importantly, Father 

fails to assert what amount of time the parties were given to present their 

cases, and/or what amount of additional time Mother was allotted.4 

As best that we can discern, Father argues the trial court abused its 

discretion and/or erred by not allowing him to present additional testimony, 

thereby failing to create a complete record. Father cites to this Court’s 

decision in Lloyd v. Lloyd, 889 A.2d 1246 (Pa.Super. 2005), wherein we 

affirmed the order denying the father’s petition for modification of the 

custody order. In doing so, we rejected the father’s argument that the court 

erred in denying his motion in limine to preclude the testimony of the expert 

whom he retained to perform a custody evaluation.

____________________________________________

4 The transcript does not reflect the amount of time given to the parties to 

present their cases. In its Rule 1925(a) opinion, the trial court stated that 

Father, in fact, was given more time than Mother to present his case. Trial 

Court Opinion, 1/12/16, at 3.
J-A14010-16

- 10 -

During Father’s direct examination, the following exchange took place:

[THE COURT]: Counsel, I will tell you that you have 10 

more minutes, and then it’s [Mother’s counsel’s] turn for 15 

minutes, and then I’ll speak to the children.

[FATHER’S COUNSEL]: [Mother’s counsel] had two and a 

half hours this morning.

[THE COURT]: He took two hours, and you are now into 

your second hour this afternoon. I do keep track.

[FATHER’S COUNSEL]: Will I be able to have more time 

after the 15 minutes?

[THE COURT]: I’m telling you that you have until quarter 

of 3, and then [Mother’s counsel] has 15 minutes left of his time, 

and then I’m supposed to speak to the children at 3:00.

If we have more time after that, I can allot it, but . . . 

we’re lacking in judicial resources. . . . I am booked every day.

[FATHER’S COUNSEL]: I understand. I would like [Father] 

to respond to some of the allegations that have been made.

[THE COURT]: Okay.

N.T., 10/21/15, at 185-186. 

As such, Father’s counsel inquired of the trial court whether she will 

“have more time” after opposing counsel’s cross-examination of Father. 

However, Father’s counsel did not request additional time nor object when 

the court stated that it would allot more time if any was available after B.B.’s 

in camera interview.5 For this reason, we conclude that Father’s fourth issue 

____________________________________________

5 We note that Father filed a pretrial memorandum on August 18, 2015, 

wherein he listed as witnesses the parties and their children, B.B. and A.B. 

(Footnote Continued Next Page)
J-A14010-16

- 11 -

is waived. See In re S.C.B., 990 A.2d 762, 767 (Pa.Super. 2010) (citation 

omitted) (stating, in part, “[i]n order to preserve an issue for appellate 

review, a party must make a timely and specific objection at the appropriate 

stage of the proceedings before the trial court. Failure to timely object to a 

basic and fundamental error will result in waiver of that issue”).

In his fifth issue, Father argues that the trial court abused its 

discretion and erred in failing to properly consider B.B.’s custody preference 

pursuant to 23 Pa.C.S. § 5328(a)(7). Specifically, Father argues that the 

court ignored B.B.’s “wishes to be with his Father. . . .” Father’s brief at 24. 

We disagree.

This Court has explained:

Although the express wishes of a child are not controlling in 

custody decisions, such wishes do constitute an important factor 

that must be carefully considered in determining the child’s best 

interest. The weight to be attributed to a child’s testimony can 

best be determined by the judge before whom the child appears. 

The child’s preference must be based upon good reasons and his 

or her maturity and intelligence must also be considered. 

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (internal 

quotations and citations omitted). 

The trial court found as follows on the record in open court:

(Footnote Continued) _______________________

At the time of the hearing, Father’s counsel requested, and Mother’s counsel 

agreed, that A.B. be excused from testifying. N.T., 10/21/15, at 4. In any 

event, Father did not request to present any additional testimony during the 

hearing.
J-A14010-16

- 12 -

[B.B.] does enjoy spending time with [both] his parents. We 

note he would like to spend more time with his father, but during 

the time that he has on the weekends with his father, he mostly 

spends that time with his friends.

He also does not want to lose time with his mother. . . .

We do not find that [B.B.]’s preference really favors either party, 

as he does want to remain in the Dallastown School District at 

this time.

N.T., 10/21/15, at 247. 

Further, the court explained in its Rule 1925(a) opinion:

The [c]ourt found that the child expressed an interest in 

spending time with both parents, and further stated that he did 

not want to lose any time with [Mother]. [Father] has primary 

physical custody of the children, and there is no credible reason 

to limit [Mother’s] time further. While the child presented as 

coached by [F]ather, he stated to the [c]ourt that when he 

spends time with [Father] on the weekends, he spends much of 

that time playing with friends. The well-reasoned preference of 

the child was to spend time with both parents, and the [c]ourt 

gave his preference the appropriate weight in evaluating all of 

the factors outlined in the Custody Act.

Trial Court Opinion, 1/12/16, at 5.

B.B., then ten years old, testified as follows on inquiry by the trial 

court:

Q. What kind of things do you do with your dad on the 

weekends?

A. Well, we’re with -- I’m with my dad on one weekend a month 

at the beginning, and on Friday nights we go to synagogue. And 

it depends. . . . I try to hang out with my friends sometimes 

because, you know, most of them are close by, closer than [at] 

my mom’s, and it gives me a chance to, like, hang out and see 

them.
J-A14010-16

- 13 -

Q. How important is it to you to continue to go to Dallastown 

School?

A. I mean, at the beginning I really, like, I didn’t care, but, like, 

this year I’m liking the intermediate school a lot, and I want to 

stay there now because, you know, I’m in the -- I’m in the 

seminar program and I’ve made a lot more friends.

. . . .

Q. Do you have some thoughts on [the custody schedule]?

A. I want to see my dad more on the weekends, but then I 

would -- if I were to have, like, one more weekend a month with 

my dad, then I would only see my mom four days a month, so, I 

mean, if I would, like, have one or two weekdays with my mom 

sometimes and maybe another weekend with my dad, that 

would be nice.

Q. Okay. How about in the summer?

A. In the summer we did week-on, week-off, and I like that. I 

think that is fair.

N.T., 10/21/15, at 232-233, 239. 

We conclude that B.B.’s testimony supports the court’s findings 

regarding his custody preference. Further, based upon the entirety of the 

testimonial evidence in this case, we discern no abuse of discretion by the 

court in the weight it placed upon his custody preference in fashioning its 

custody order. As such, Father’s fifth issue fails.6

____________________________________________

6

In addition, Father baldly asserts that the trial court “did not extend to 

[him] the same scope of discretion in the questioning of Father regarding 

what the children told him regarding their wishes and what they want, as 

was extended to [Mother].” Father’s brief at 24. We conclude that Father 

has waived this issue by not setting it forth or suggesting it in his statement 

(Footnote Continued Next Page)
J-A14010-16

- 14 -

Upon careful review, we discern no abuse of discretion by the trial 

court in concluding that, “[n]o credible evidence was presented that there 

was any reason to further limit [Mother’s] time with the children, and we see 

no reason to do so. The form of custody in this matter is in the best interest 

of the children, and to afford more custodial time to [Father] as he has 

requested would, in effect, deprive [Mother] of any meaningful custodial 

time to spend with her children.” Trial Court Opinion, 1/12/16, at 4-5. As 

such, we conclude that the testimonial evidence supports the trial court’s 

factual findings, and that the custody award is reasonable in light of those 

findings. Accordingly, we affirm the order. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2016

(Footnote Continued) _______________________

of questions involved in his brief. See Krebs v. United Refining Company 

of Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that any 

issue not set forth in or suggested by an appellate brief’s statement of 

questions involved is deemed waived).