J

- S01002

- 20

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

v.

N.L.W. : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2578 EDA 2019 Appeal from the Order Entered August 20, 2019 In the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2014

- FC

- 1091

BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J. * MEMORANDUM BY BOWES, J.: FILED MAY 28, 2020 D.D.M ( “ Father”) a ppeals from the August 20, 2019 child custody order that denied his petition for modification and contempt , granted a competing petition filed by N.L.W. (“Mother”) , and awarded Mother primary physical custody and sole legal custody of their approximately seven

- year - old son, D.M . We affirm the award of physical custody but vacate the award of sole legal custody

. Mother and Father never married. Following the birth of D.M. in July 2012, the family resided together in Lehigh County, Pennsyl vania for roughly nine months before Mother and D.M. moved to a different residence in the county. On August 19, 2014, Fat h er filed a custody complaint, which for our

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

- S01002

- 20

- 2

-

purposes , culminated in a stipulated final custody order entered on July 11, 2018. That order awarded Mother primary physical custody of D.M. and granted Father liberal periods of partial physical custody. The parties shared legal custody. Thereafter, on January 24, 2019, Mother filed a petition for contempt and modification. She assert ed that Father wa s in contempt of the “spirit and intent” of the custody order , requested that the court reduce Father’s periods of physical custody to alternating weekends , and sought to eliminate the requirement for co

- parent counseling

. Mother’s P etiti on for Modification and Contempt, 1/24/19, at unnumbered 2

- 3. Mother complained, inter alia , that Father was quarrelsome , indifferent to co - parent counseling, and inattentive to their son’s education and health care needs

. Id . at unnumbered 3

- 4. In this vein, the certified record reveals that D.M. experienced behavioral issues symptomatic of Attention Deficit Hyperactivity Disorder (“ADHD”) , which necessitated the implementation of an individual ized education plan (“IEP”). Father countered one m onth later with a petition for modification and contempt, wherein he asserted that Mother “routinely modifies and interprets the terms of the agreement unilaterally.” F ather’s Petition for Modification and Contempt, 2/22/19, at 3. He requested, inter ali a , primary physical custody and increased access to “medical and educational information[.]” Id .at 4.J

- S01002

- 20

- 3

-

Prior to the first of three evidentiary hearing s , Mother clarified that she was “seeking sole legal [custody] based on some issues that have occurred

. . . since the filings , ” a position that was consistent with the pretrial statement which was subsequently admitted as Exhibit M

- 1. N.T., 5/31/19, at 6, 18. However, t he court indicated that it would not consider legal custody because , at a pr evious off

- the

- record pretrial settlement conference, Mother indicated
t hat legal custody was not at issue. The court reasoned, the custody relief ch ecklist that we use [at the pretrial settlement conference]

-- and that’ s not an official record, but it would b e in the

. . . court reporter ’ s record of it

-- it ’ s clearly [sic] that Mother is agreeable to shared and Father is agreeable to shared, so legal custody cannot be an issue for today. It can be raised in a subsequent pleading. You can come back on that, but you have to have the notice. So that cannot be an issue for today. Id . at 7 . Mother did not amend her petition or raise the request in a subsequent pleading.
O n August 19, 2019 , t he trial court announced in open court its custody decision and , pur suant to § 5323(d) of the Child Custody L aw, it delineated its analysis of the best

- interest factors enumerated in 23 Pa.C.S. § 5328(a) , which we discuss infra

. See N.T. Custody Decision , 8/19/19, at 1

- 8. After addressing each of the statutory factors, the court concluded ,

Based upon the evidence and th ese findings, we award primary physi cal custody to Mother with Fathe r exe rc ising pa r tial custody on alternate weekends and a mid

- week dinner visit. Additionally , we find that the p r imary reason for the poor cooperation and commun i cation between the parties re sides with Father. For this reason, a lthough neither party requested sole legal cu s tod y , we conclude that it is necessary to award sole legal custody to Moth er .J

- S01002

- 20

- 4

-

Id . at 7. The court entered the above

- referenced written custody order the following day

. This timely appeal followed. 1 Father presents three questions for our review , which we re

- ordered for ease of disposition : A. Whether the [t]rial [c] ourt c ommitted an error o f law a nd/or abused its discretion when it modified legal and physical custody of the minor chil d without making a finding of a substantial change of cir cumstances before assessing the best interest of the child factors

. B. Whether the [t]rial [c] ourt committed an error of law and/or abused its discretion w hen it awarded Appellee primary physical custody of the mi nor child when the evidence and testimony clearly demons trated such an award was not in the best interest of the minor child.
C. Whether the [t]rial [ c] ourt c ommitted an error of law and/or abused its discretion when it awarded Appellee sole le gal custody of the minor child when neither party had properly requested sole legal cu stody and when the evidence and testimony clearly demons trated such an award was not in the best interest of the m inor child and further violated Appellant ’ s procedural due process rights by not providing notice. Father’s brief at 10. We review the child custody order according to the following scope and standard of review:

This Court reviews a custody determination for an abuse of discretion. We will not find an abuse of discretion merely because a reviewing court would have reached a different conclusion.

_________________ __________ ______ ____ _______ 1 Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing his concise statement of errors complained of on appeal with his notice of appeal.J

- S01002

- 20

- 5

-

Rather, appellate courts will find a trial court abuses its discret ion if, in reaching a conclusion, it overrides or misapplies the law, or the record shows that the trial court’s judgment was either manifestly unreasonable or the product of partiality, prejudice, bias or ill will. R.L. v. M.A. , 209 A.3d 391, 395 (Pa.Su per.2019) (cleaned up). Moreover, on issues of credibility and weight of the evidence, we defer to t he findings of the trial court which has had the opportunity to observe the proceedings and demeanor of the witnesses. The parties cannot dictate the amou nt 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 an d thorough, and we are unable to find any abuse of discretion. A.V. v. S.T. , 87 A.3d 818, 820 (Pa.Super. 2014) ( cleaned up ). At the outset, we observe that Father’s fi r st issue, relating to the court’s purported failure to make a finding as to a substantia l change of circumstances, is waived pursuant to Pa.R.A.P. 1925(b)(4)(vii) because he failed to include it in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4) (vii) (“I ssues not included in the S tatement . . . are waived. ”). Moreover, the issue is mer itless. Section 5338(a) of the Child Custody Law clearly states that, “[u]pon petition, a court may modify a custody order to serve the best interest of the child.” 23 Pa.C.S. § 5338(a) (emphasis added). As noted supra , the trial court engaged in a comprehensive best

- interest analysis pursuant to § 5328(a)(1)

- (a)(16) before granting Mother’sJ

- S01002

- 20

- 6

-

modification petition and fashion ing a new custody arrangement. Thus, the court’s determination complied with the dictates of the Child Custody Law. While the court was free to consider the presence of a substantial change of circumstances under the catchall best

- interest factor, a change of circumstances is no longer required in order to grant a request for modification. See , e.g. , M.J.M. v. M.L.G. , 63 A.3d 331, 339 (Pa. Super. 2013) (judicially created doctrines did not survive legislatures enactment of child custody law ). Stated plainly, a substantial change of circumstances is no t a prerequisite for modification pursuant to § 53 38(a). Next, we address Father’s assertion that the evidence presented at the custody hearings did not warrant granting Mother primary physical custody

. H e argues that the court abused its discretion in finding that an award of primary physical custody serv ed D.M.’s best interests. He requests that we reverse the custody order or , alternatively, remand the case “for a review of the evidentiary record” and the entry of a new order in his favor . Father’s brief at 31. For the following reasons, we disagr ee . When awarding any form of custody, the Child Custody Law provides an enumerated list of factors a trial court must consider in determining the best interests of a child: (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 harmJ

- S01002

- 20

- 7

-

to the child or an abused party and which party can better provide adequate phys ical 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 ma turity 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 t he 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) T he 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 c oop erate 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

- S01002

- 20

- 8

-

(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. § 5328(a)(1)

- (16). This Court has stated that, “ [ a ] ll of the factors listed in § 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). Instantly, t he trial court carefully considered the foregoi ng custody factors and explained on the record its rationale for granting Mother primary physical custody. Of the sixteen custody factors, the court dete rmined that factors (2), (6), (7), (9), (10), (11), (12), (14), and (15) were either neutral

or inapplicable

. See N.T. Custody Decision , 8/19/19, at 1

- 8. F actors (1), (3), (4), (5), and (8), favored M other, and no factor s militated in favor of Father. Id

. The gravamen of Father’s argument is that the court determined that the majority of the facto rs were neutral or inapplicable and did not state which of the remaining factors “are weighted more heavily against each other.” Father’s brief at 29. He specifically assails the court ’ s analysis of factors one three, five, and eight, and concludes that “the [t]rial [c]ourt unreasonably found that the allegations of [Mother] were more credible then that of [Father]J

- S01002

- 20

- 9

-

due to the above factors being in favor of [Mother].” Id . at 31. No relief is due. To the extent that Father asks that this Court reweigh th e evidence adduced during the hearing in order to reach conclusions in his favor, his argument must fail. A party cannot dictate the weight that the trial court attributed to the evidence or its consideration of any single factor. Indeed, as we explained in M.J.M. , supra at 339, “it is within the trial court ’ s purview as the finder of fact to determine which factors are most salient and critical in each particular case.” We simply w ill not revisit the trial court’ s factual findings that are based on the certified record in order to reassess the weight of the evidence. J.R.M. v J.E.A. , 647, 650 (Pa.Super. 2011) (“ [W] ith regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnes ses first

- hand [.] ”). Thus, inasmuch as the certified record sustains the trial court’ s findings of fact, we do not disturb them. Further, we are unpersuaded by Father’ s contention that the court’s § 5328(a ) analysis is deficient “due to a lack of factual findings by the [t]rial [c]ourt[.]” Father’s brief at 27. In In M.J.G. , supra , t his Court soundly rejected a similar assertion that the court’s § 5328(a) analysis was inadequate because the trial court did not, inter alia , reference the record or explain credibility determinations . We reasoned, “ there is no required amount of detail for the trial court ’ s explanation; all that is required is that theJ

- S01002

- 20

- 10

-

enumerated factors are considered and that the custody decision is based on those considerations .” Id

. Father’s claim fails for identical reasons. W hile Father complains that the court failed to make sufficient factual finding s in support of its analysis,

“ t he trial court did precisely what it should have done; it weighed the entirety of the section 5328(a ) factors in making the custody determination and articulated its considerations in a manner that informed the parties of the reasons for the custody award. ” Id

. No relief is due. Finally, we address Father ’s assertion that the trial court violated his d ue process by awarding Mother sole legal custody when it previousl y declined to consider Mother’s request because it was inconsistent with her position at a prior status hearing. The crux of this contention is that the court denied him notice that legal custody would be an issue to be litigated during the custody proceeding

. For the following reasons, we agree

. In a legal proceeding where a person may be deprived of custody of a child, “formal notice and an opportunity to be heard are fundamental components of due process.” Everett v. Parker , 889 A.2d 578, 580 (Pa. Super. 2005). As we previously stated, “Due proc ess requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues [.] For when the issue is first stated only in the court’s resolution of it, the unsuspecting party has no
op portunity during the proceedings to voice his objections or match his caseJ

- S01002

- 20

- 11

-

to the altered issue.” In Interest of M.B. , 514 A.2d 599, 601 (Pa. Super. 1986). Instantly , the trial court made the unequivocal pre trial determination that it would not consider the issue of legal custody as part of the current contempt/ modification proceeding s . Furthermore, on at least one occasion during the ensuing hearings, the court precluded Mot her from presenting evidence about the lack of parental communication be cause the evidence related to legal custody , which was not before the court at that time

. N.T., 5/31/19, at 72. Nevertheless, despite twice informing the parties that it would not consider Mother’s request for legal custody, and prohibiting her from adducing evide nce relevant to that issue , on August 19, 2019 , the trial court entered a custody order that , inter alia , aw arded Mother sole legal custody. As noted, supra , i n explaining the basis for its determination the trial court expressly rationalized , “the primar y reason for the poor communication between the parties resides with Father. For this reason, although neither party requested sole legal custody, we conclude it is necessary to award sole legal custody to Mother.” N.T. Custody Decision, 8/19/19, at 7.
As e vidence of the parties’ ability to cooperate and communicate is precisely the type of evidence that the trial court excluded during the custody hearing , it cannot be said that Father was “provided adequate opportunity to prepare and thereafter properl y advocate [his] position” regarding legal custody. Langendorfer v. Spearman , 797 A.2d 303, 309 (Pa.Super.2002)J

- S01002

- 20

- 12

-

(citation omitted). Significantly, because Father relied upon the court’s assertion that it would not consider legal custody during the contempt/modification proceedings , it is of no import that Father does not assert that the trial court prohibited him from presenting evidence relevant to that issue. T he trial court violated Father’s procedural due process rights by deciding a matter that, by its own assertion, was not before the court. Phrased differently, Father was an “ unsuspecting party [who] ha [d] no opportunity during the proceedings to voice his objections or match his case to the altered issue.” In Interest of M.B. , s upra , at 601. Accordingly , we affirm the trial court’s award of primary physical custody to Mother and vacate the order as it pertains to the award of sole legal custody. Order affirmed in part and vacated in part. Case remanded. Jurisdiction relinquished

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/28/20