J-A28039-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID EUGENE LYNN 

Appellant

v.

KRYSTLE MARIE LYNN N/K/A 

KRYSTLE MARIE MARUSIN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 804 MDA 2021

Appeal from the Order Entered June 3, 2021

In the Court of Common Pleas of Lackawanna County Civil Division at 

No(s): 2019 FC-41770

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 1, 2021

Appellant David Eugene Lynn (Father) appeals from the Custody Order 

entered in the Civil/Family Division of the Court of Common Pleas of 

Lackawanna County on June 3, 2021. Following a careful review, we affirm.

The trial court set forth the facts and procedural history herein as 

follows: 

This case involves a custody dispute between [Father] and 

[Appellee], Krystle Marie Marusin, (hereinafter “Mother”) 

regarding their Minor Children, K.L. and M.L. (hereinafter “Minor 

Children”).[1] By way of background, the parties were before this 

[c]ourt on October 26, 2020, for a hearing on Mother’s Motion for 

Appointment of Guardian ad Litem (hereinafter “GAL”) for the 

Minor Children, which was filed on October 8, 2020. (Motion 

10/08/20). At that time, the parties reached an agreement which 

was adopted as an Order of Court and filed on October 27, 2020. 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 K.L. was born in September of 2009, and M.L. was born in February of 

2016. 
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(Stipulated Order, 10/27/20). Pursuant to the Stipulated Order 

dated October 27, 2020, the parties have shared legal and 

physical custody of the Minor Children. Id. In addition, the parties 

agreed to hold Mother’s Motion for GAL in abeyance and Father 

agreed to ensure the Minor Children refer to his fiancée by her 

first name. Id. 

On April 5, 2021, Mother filed a Petition for Emergency 

Special Relief wherein she aver[red] concerns with the safety of 

the Minor Children at Father’s place of employment. (Petition, 

04/5/21). The Honorable Judge Jarbola denied Mother’s Petition 

for Emergency Special Relief but scheduled the matter for a 

conciliation conference before the Custody Master. (Order, 

04/5/21). The parties appeared before the Custody Master on 

April 14, 2021 via video conference. (Order, 04/14/21). At that 

time, the parties were unable to reach an agreement. Id. The 

matter was scheduled for a hearing before this [c]ourt on Mother’s 

Petition for a GAL that was held in abeyance and Mother’s denied 

Petition for Special Relief on whether the Minor Children are safe 

at Father’s place of employment. Id. 

A hearing commenced before this [j]urist on June 3, 2021, 

via video conference. This [c]ourt heard testimony from Mother 

and Father. (Transcript, 06/03/21). After the hearing, this 

[c]ourt issued an Order dated June 3, 2021, ordering that the 

Minor Children shall not be permitted at either parties’ place of 

employment absent a limited circumstance requiring their 

appearance. (Order, 06/03/21). In the event the parties must 

appear at their place of employment with the Minor Children, the 

Minor Children shall not be present at either parties’ place of 

employment for longer than an hour in duration. Id.

[2]

 Further, 

this [c]ourt ordered that Father shall ensure the Minor Children 

refrain from calling Father’s fiancé[e] by terms relating to Mother. 

Id. In addition, this [c]ourt appointed Brenda Kobal, Esq. as the

GAL for the Minor Children in this matter. Id. 

On June 21, 2021, Father filed a Notice of Appeal of this

[c]ourt’s Order dated June 3, 2021 as well as Errors Complained 

on Appeal. (Notice, 06/21/21). On July 8, 2021, Father’s 

[c]ounsel provided this [c]ourt with a Docketing Statement 

containing issues raised on appeal, which will be addressed by this 

[c]ourt below.

____________________________________________

2 Father’s place of employment is a mechanic’s garage. No testimony was 

presented pertaining to mother’s workplace. 
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Trial Court Opinion, filed 7/20/21, at 1-3. 

In his brief, Appellant raises two issues for our review: 

1. Whether the [t]rial [c]ourt abused its discretion by ordering 

that Appellant/Father shall ensure that the minor children refrain 

from calling Father’s fiancée by terms relating to Mother but not 

limited to Mom. 

2. Whether the [t]rial [c]ourt abused its discretion by ordering 

that the minor children shall not be permitted at either parties’

place of employment for longer than an hour duration.

Father’s Brief at 4. 

This Court’s standard of review of a child custody order is as follows:

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.

Graves v. Graves, 2021 WL 4839479 at *3 (Pa.Super. Oct. 18, 2021).

Furthermore:

The discretion that a trial court employs in custody matters

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, 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.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson 

v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)).

Father contends the trial court’s determinations as to the name by which 

the Minor Children refer to Father’s fiancée and the amount of time that they 

are permitted to spend at his place of employment are unsupported by the 

record and, therefore, manifestly unreasonable and a gross abuse of 

discretion. Father’s Brief at 7, 10. Father reasons that the testimony at the 

June 3, 2021, hearing failed to show the Minor Children’s referring to his 

fiancée as mom and spending more than one hour in his place of employment 

are contrary to the children’s best interest. Id. at 10. Following our review 

of the entire record, we disagree. 

Mother testified regarding the ways in which she perceived Father had 

attempted to alienate the Minor Children from her including his insistence that 

their conversations be on speaker phone, his telling the children that Mother

had ended the marriage and cares more for herself than she cares for them, 

and his violating the provision in the Custody Order prohibiting the Minor 

Children from calling Father’s fiancée mom. N.T. 8, 10-12, 15-16. Mother 

also explained that she feared for her children’s safety when they are at

Father’s mechanic’s garage for an entire day. She was especially concerned 

for M.L.’s safety not only due to the nature of the materials found in the garage

but also because of M.L.’s friendly and trusting nature with strangers which 
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could lead to her being harmed if unsupervised for even a short period of time. 

Id. at 21-22. 

In his brief, Father stresses he testified that he encourages the Minor 

Children to know “their mother is their mother” and that she is a “good 

person.” Brief of Appellant at 10 citing N.T. 6/3/21, at 39. Father reasons 

this testimony is in contravention to the trial court’s finding that Father’s 

encouraging the children to refer to his fiancée as mom fails to promote a 

positive relationship between Mother and them. 

Ignoring Mother’s testimony, Father also states the record is devoid of 

any evidence to support the trial court’s conclusion that such reference 

confuses the Minor Children. Father contends that, conversely, the record 

illustrates they are comfortable referring to his fiancée in that manner. Brief 

for Appellant at 10. In addition, Father believes it is his right as a parent to 

have his children periodically present at his place of employment, especially 

in light of the global pandemic. He explains that when the children are at his 

workplace, he is not performing manual labor and stays in the front office 

portion of the establishment with them. Id. at 11-12. 

The trial court heard Mother’s testimony as well as Father’s contrary 

statements and thoroughly considered the necessary factors for determining 

the best interests of the Minor Children prior to entering its June 3, 2021, 

Order. The court detailed its reasons for its holdings as follows: 

The fundamental consideration in any child custody case is 

the best interest of the child. Ellerbe v. Hooks, 416 A.2d 512, 513 
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(Pa. 1980). “Upon petition, a court may modify a custody order to 

serve the best interest of the child.” 23 Pa.C.S.A. § 5338 (Westlaw 

2021). The Pennsylvania Statute, 23 Pa. C.S.A. §5328, sets out 

the following specific factors for courts to consider when issuing a 

custody order:

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 parry 

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.
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(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 parry's household.

(16) Any other relevant factor.

23 Pa. Cons. Stat. Ann. § 5328 (Westlaw 2021)

During the hearing, Mother testified that Father continues 

to allow the Minor Children to call his fianc[é]e “mom” even after 

he stipulated in the Order dated October 27, 2020, that he would

ensure the Minor Children call his fiancé[e] by her first name. 

(Transcript, 06/03/21, p.12). Mother testified that Father started 

having the Minor Children call his fianc[é]e by “mom” after only 

dating for seven (7) months. Id. at 13. Mother further testified 

that she has attempted to speak to Father regarding this issue 

and he became irate and told her, “[I]t's a violation of his rights.”

Id. Father testified that, “My girls need to know that their mother 

is their mother, and she's a good person. Like, no matter what, at 

the end of the day, that's their mother.” Id. at 41. However, Father 

also testified that recently he has not corrected the Minor Children 

when they are referring to his fianc[é]e as “mom” and has spoken 

to the Office of Youth and Family Services regarding his rights to 

have the Minor Children refer to his fianc[é]e as "mom." Id. at 42.

This [c]ourt found that it is in the best interest of the Minor 

Children to ensure they are not referring to Father's fianc[é]e as 

“mom.” Mother has shared custody of the Minor Children and

plays [a] significant role in their lives. Further, this [c]ourt found 

that having the Minor Children refer to Father's fianc[é]e as 

“mom” is confusing to them considering their young ages. Father's 

actions fail to promote a positive relationship between the Minor 

Children and Mother for the emotional well-being of the Minor 

Children. Therefore, this [c]ourt issued an Order directing Father 

to ensure that the Minor Children refrain from referring to his 

fianc[é]e as “mom.”

Mother also testified regarding her concerns for the safety 

of the Minor Children at Father's place of employment, his 

mechanic’s garage. Mother testified that the Minor Children watch 

television in the waiting room of the garage while Father is 
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working in the bay area for eight (8) hours with no other 

employees at the garage. Id. at 23. Mother also expressed 

concerns with the minor child, M.L., having unsupervised contact 

with customers in the waiting room area given the fact that she is

a very trusting five-year-old who would leave the garage with a

stranger. Id. at 24. Mother testified that, on at least one (1) 

occasion, she has arrived at Father’s garage and the minor child, 

M.L., was outside of the waiting room door by herself. Id. at 12.

Mother expressed concerns with Father using his workplace as a 

babysitter during his periods of custody and requested this [c]ourt 

to limit the time the Minor Children could be at Father's work. Id. 

at 25.

Father testified that, “[T]hey (Minor Children) are here 

(Father's garage) about once a month if that...They’re not here 

unsupervised either.” Id. at 40. However, Father testified that he 

is the only person working at his mechanic’s garage and runs the 

whole garage by himself. Id. Father testified that, once again, he 

contacted the Office of Youth and Family Services about his right 

to have the Minor Children at his business. Id.

This [c]ourt found that a mechanic's garage is not an 

appropriate place for the Minor Children for eight (8) hours while 

Father is working. This [c]ourt believes that it is inappropriate for 

a minor child to be at any workplace for eight (8) hours. Therefore, 

this [c]ourt determined that it is in the best interest of the Minor 

Children to not be permitted at either parties’ place of employment 

for longer than an hour duration.

Trial Court Opinion, filed 7/20/21, at 3-6.3 

In making the aforesaid arguments, Father essentially asks this Court 

to ignore the aforementioned testimony read in its totality and to reexamine

the trial court’s credibility findings made following the hearing which we 

cannot do. See Ketterer, supra. 

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3 The Minor Children’s Guardian Ad Litem submitted a brief in support of 

affirmance for this Court’s review and in doing so she indicated that she

concurs with the trial court’s legal analyses and conclusions. See Brief in 

Support of Affirmance Submitted by Guardian Ad Litem for Minor Children K.L. 

& M.L. 
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Upon our review, we conclude that the trial court did not abuse its 

discretion in determining it is in the best interest of the Minor Children to 

ensure they are not referring to Father’s fiancée as mom and that they are 

not spending more than one hour at either parent’s place of employment. 

Thus, we affirm the Order from which this appeal arose. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2021