J-S38001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.W.J., II IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

A.S.P.

No. 55 MDA 2015

Appeal from the Order Entered on December 29, 2014

In the Court of Common Pleas of Susquehanna County

Civil Division at No.: 2008-14 C.P.

BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED JULY 14, 2015

A.S.P. (“Mother”) appeals the December 29, 2014 order that granted 

primary custody of the parties’ three minor children to J.W.J., II (“Father”). 

We affirm.

Mother and Father married in July 2001. They have three minor sons: 

J.J.J., born in December 2000; T.M.J., born in March 2003; and L.W.J., born 

in July 2005. On January 7, 2008, Father filed a complaint in divorce. On 

May 29, 2008, the parties entered a stipulated custody order in which Father 

had primary physical custody and Mother had partial physical custody. At 

that time, the parties anticipated that Mother was going to move to Utah. 

On June 2, 2009, Father filed a petition for special relief seeking to suspend 

Mother’s partial custody because she had not complied with certain 

conditions that were part of the stipulated order, such as providing Father 

with her current address in Utah and photographs of her residence in Utah. 
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Mother did not appear at the hearing on Father’s petition, and, on July 7, 

2009, the trial court entered an order suspending Mother’s partial custody 

and providing Mother with supervised visitation. On February 28, 2012, the 

trial court issued a divorce decree.

On February 25, 2014, Mother filed a petition for special relief in which 

she alleged that Father, who had primary custody, was neglecting the 

children. Mother sought a modification of custody and immediate temporary 

custody of the children pending a hearing. On the same date, Mother filed a 

petition for relocation. 

On February 25, 2014, the trial court granted Mother’s petition for 

special relief on the condition that the children be placed with B.P. 

(“Maternal Grandmother”).1 Maternal Grandmother lived close to Father’s 

house; Mother continued to live in Utah.

The trial court held hearings on the matter on April 21, 2014; July 14, 

2014; September 12, 2014; and December 12, 2014. The court took 

testimony from both parents; all four grandparents; the children’s stepbrother and his mother; J.J.J. and T.M.J.; Mother’s fiancé; Mother’s expert 

____________________________________________

1 On March 3, 2014, Father filed a petition to vacate the February 25, 

2014 order. He alleged that he had not received notice of the petitions. 

Further, Father’s counsel alleged that he was in court on February 25, but 

that Mother’s counsel did not inform him of her intent to present the 

petitions and waited for Father’s counsel to leave the courtroom before 

presenting the petitions to the court. Mother’s counsel denied these 

allegations. The trial court denied Father’s motion. 
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witness Vincent Carolan; Nichole Welmon, a home study investigator; and a 

parent who participates in scouting with the children. Following those 

hearings, the trial court made the following findings of fact:

For about seven (7) years Father has been the primary caregiver 

of the three sons as Mother had removed herself from the family 

home . . . first to Honesdale, Pa. for a short period and then to 

the area of Layton, Utah. She has had no physical contact with 

the boys until early 2014. However, she has maintained some 

measure of telephone communications with the boys, 

substantially more in the past couple of years than before.

[Mother] would have us find credible that she could not afford to 

either move back to the Susquehanna County area and/or she 

had no financial means to return for partial custody and 

visitation with the boys in Susquehanna County. Moreover, on a 

support order that began as six hundred dollars ($600) per 

month child support, later modified to five hundred dollars 

($500) per month child support, she is in arrears in an amount 

in excess of nineteen thousand dollars ($19,000).

She now works for her paramour about twenty hours per week 

as a bookkeeper/dispatcher for his owner-operator trucking 

business. As such she is solely dependent on him for 

employment and generally for food and shelter.

Mother has told the children of wonderful things about the area 

of Utah in which she resides such as skiing opportunities and 

other recreational pursuits.

[The trial court] interviewed the sons and find their preferences 

as to whom to live with to be not compelling.

[The trial court] also note[d] that a home study of each 

household has been conducted . . . .

Father, by order of 2009, has been the sole legal custodian of 

the children as well as the primary [physical] custodian of the 

children. Largely by his efforts and that of the maternal 

grandmother who lives next [door] to the boys, their needs have 

been met.
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Father as a cub scout and boy scout leader has had all three 

sons in a scouting program, although [J.J.J.] does not attend 

now pursuant to his wishes which Father has honored.

Although Father’s mother lived with him for a couple of years 

and a girlfriend, Kelley[,] lived with him for several months, 

Father generally lived alone with the three sons until the court 

allowed for a change of physical custody of the boys to the 

maternal grandmother’s home next door. At the time of the 

transfer[,] Father was neither allowed to communicate with the 

boys nor see them for a couple of months which resulted in his 

filing of petitions and the court restoring those parental rights to 

him.

Noteworthy is the fact that upon the temporary transfer of 

physical custody[,] Mother took two weeks to return to the area 

to be with the boys and now goes back and forth to Utah on a 

regular basis to address her employment duties with her 

[fiancé].

A complaint of [] Mother was the fact that the boys had to do 

some household chores such as laundry, cleaning, dishes, 

making their own breakfast, etcetera. [The trial court] 

determined that the amount of chores was not onerous to any of 

the children, but on the contrary[,] was instilling in them life 

skills and good work habits.

[T.M.J.] had some mental health and emotional problems which 

[Father] addressed through ongoing mental health counseling. 

[T.M.J.] has progressed and no longer has emotional difficulties 

to the degree he once experienced.

For some time the older son, [J.J.J.], had to watch the two 

younger sons because of [Father’s] work schedule. This 

sometimes proved quite challenging for [J.J.J.] and he voiced 

that concern to [Father]. This overseeing could not have 

occurred for too long because either the paternal grandmother 

and/or Kelley resided within Father’s household.[2]

____________________________________________

2 The record reflects that, after Mother moved, the maternal 

grandmother assisted with the children when Father was at work. In 

September 2011, due to a flood, the paternal grandmother moved in with 

Father and also assisted with the children until she moved out in May 2013. 

(Footnote Continued Next Page)
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To lessen the child caring duties of [J.J.J.] for substantial periods 

of time Father has offered to the court that his mother and 

father who both live within about half an hour away could help 

him with the boys. The court firmly believed this extra adult 

help would be a better practice than having [J.J.J.] watch the 

two younger sons.

Generally Father or Father and/or maternal grandmother have 

seen to it that the children have attended health[-]related 

appointments.

Father has been the parent to attend the children’s Individual 

Educational Program (IEP) meetings as well as parent teacher 

conferences and other school functions.

. . . [O]f all the family members on both sides only Mother lives 

in Utah. The balance of the families on both sides live in the 

vicinity of Susquehanna County.

* * *

[Mother] over the past approximately seven years has had no 

physical contact with the children and only a normal amount of 

telephone contact with them until February – March 2014 when 

they physically began living at grandmother[’]s. Before then 

Father had daily care of the children coupled with maternal 

grandmother’s assistance in his work[-]related absences. [The 

trial court] note[d] however he always returned to the home at 

late afternoon or early evening dependent on his work schedule. 

He engaged the boys in scouting and other activities and 

attended school related functions.

The boys have an adult step[-]brother, [Father’s son,] in the 

area who has an excellent relationship with them, and is often in 

their presence.

(Footnote Continued) _______________________

In 2013, Father and the maternal grandmother had a falling out and she no 

longer watched the children while Father worked. Father’s girlfriend, Kelley, 

moved into Father’s house and assisted with the children for about a year 

before she moved out in December 2013. Therefore, the only time J.J.J. 

would have had to supervise the younger children was between Kelley 

leaving the home in December 2013 and when custody was transferred to 

Mother and the maternal grandmother in February 2014.
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The children range in age from nine to fourteen, and relocation 

would have the effect of uprooting them from their father, step[-

]brother, grandparents and other family members on both sides. 

They would have to leave their school and all of their school 

friends.

Given the parents live 2000 miles apart the boy[s’] relationship 

with their primary caregiver, Father, would change drastically, 

and could not be meaningfully preserved.

The boys expressed their preferences as to where to live in 

accordance with promises made by [Mother] which [the trial 

court] glean[ed] from her and the home study investigator, Ms. 

Nichole Welmon.

We do not find it credible that Father obstructed Mother’s . . . 

relationship with the boys. Basically, she abandoned the 

children by moving nearly 2100 miles away, never coming back 

East to see them. She never filed any petition with this court 

seeking partial custody of these children or enforcement thereof.

The financial situation of Mother and therefore of the subject 

children is tenuous at best. She is dependent upon her 

paramour, not only for a roof over hear head, food on her table, 

but also for her part[-]time employment. If that relationship 

would end she would generally be destitute.

Father, on the other hand, has been a member of the Heat and 

Frost Insulators and Asbestos Workers Union Local #38 for 

several years. Occasionally, he draws unemployment 

compensation but generally supports the children despite 

[Mother] being in arrears on her child support obligation for 

thirty[-]six plus months.

We do not discern any credible evidence that abuse has occurred 

in the households of [either] parents.

We find the emotional benefit to the children is greater if they 

remain in the area with their father, extended family including 

grandparents and their step[-]brother. We find it . . . very iffy 

as to granting relocation removing them from all the community 

they really have known.

We find that both parties are likely to encourage and permit 

frequent and continuing contact with the children. In that regard 
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[Mother] can easily put aside her part-time employment and 

return to Susquehanna County to visit the children.

The [children’s] stability is well[-]established in Susquehanna 

County by their being here exclusively with their father for 

several years, as well as being with grandparents and attending 

school here.

Both Father and Mother have a loving relationship with the 

[children]. However[,] Father has provided for their care nearly 

exclusively for several years. He is not to a discernable degree 

dependent [] on another to provide financially for the [children].

Trial Court Opinion and Order (“T.C.O.”), 12/29/2014, at 1-5 (unnumbered).

On December 29, 2014, the trial court issued its order and opinion,

which granted Father primary physical custody and granted Mother partial 

physical custody. On January 6, 2015, Mother filed a notice of appeal. 

Mother did not designate the appeal as a Children’s Fast Track Appeal. Nor 

did Mother file a concise statement of errors complained of on appeal 

contemporaneously with her notice of appeal, as is required by Pa.R.A.P. 

1925(a)(2)(i). However, we may excuse the failure to file a concise 

statement at the same time as the notice of appeal. See In re K.T.E.L., 

983 A.2d 745 (Pa. Super. 2009).

On March 2, 2015, this Court issued an order designating the case as a 

Children’s Fast Track case and ordering Mother to file a concise statement 

with the trial court and with this Court, and to serve the concise statement 

on the trial judge and Father by March 12, 2015. The order also warned 

that failure to comply with the order would result in waiver. Mother filed a 

concise statement with the trial court on March 12, 2015, and with this 
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Court on March 17, 2015.

3

 The trial court did not file a Pa.R.A.P. 1925(a) 

opinion, instead relying upon the opinion filed with its December 29 order.

Mother raises the following issue for our review: “[W]hether or not the 

lower court erred by abusing its discretion in awarding custody of the subject 

[children] to [Father] as the lower court’s ruling was contrary to the weight 

and sufficiency of the evidence and did not adequately consider[] the sixteen 

(16) best interest factors set forth in 23 Pa.C.S.A. § 5328(a)[?]” Mother’s 

Brief at 3.

Father argues that Mother has waived her right to review by failing to 

comply with various Rules of Appellate Procedure. Specifically, Father points 

out Mother’s failure to file a concise statement with her notice of appeal, her 

failure to address the concise statement issue in her brief, and her failure to 

identify the case as a Fast Track case. Father also cites her failure to follow 

rules related to filing a reproduced record and failure to cite to the 

reproduced record in her brief. Father’s Brief at 9-11. 

____________________________________________

3 Mother filed her concise statement after the trial court transmitted its 

certified record to this Court and the copy that Mother filed with this Court 

did not contain a certificate of service. Because failure to comply with our 

order with regard to service upon the trial court would have resulted in 

waiver, see Mudge v. Mudge, 6 A.3d 1031, 1032 (Pa. Super. 2010), we 

had to seek a supplemental certified record to ensure that Mother had 

complied and we could reach the merits of her issues on appeal. This, in 

addition to Mother’s failure to designate this as a Fast Track case, has 

caused a delay in the resolution of this case. We advise Mother’s counsel to 

ensure compliance with the Rules of Appellate Procedure in future appeals.
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We agree with Father that Mother did not comply with all the Rules of 

Appellate Procedure. Mother’s lack of compliance certainly delayed the 

review of this case. However, we consistently have held that, when the 

failure to comply does not impede our ability to review the issues, we will 

address the merits. See Phillips v. Selig, 959 A.2d 420, 428 (Pa. Super. 

2008). Here, our review, while delayed, has not been impeded substantially 

by Mother’s missteps.

Although Mother presents one question on appeal, she actually raises 

two issues: failure to consider all of the statutory factors and failure to weigh 

those factors appropriately. We first must address the allegation that the 

trial court failed to consider all of the factors, an issue that Mother preserved 

in her concise statement. See Statement of Errors Complained of on 

Appeal, 3/12/2015, at ¶ 4. 

In awarding custody, the trial court must consider the following factors 

in determining the children’s best interests:

(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) (relating to 

consideration of child abuse and involvement with protective 

services).

(3) The parental duties performed by each party on behalf of the 

child. 
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(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.

23 Pa.C.S.A. § 5328(a). 

We have held that the failure to consider all of the factors is reversible 

error. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). “[T]here is no 
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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). Notably, in that case, the trial court did discuss each factor. 

We also have stated that “a court cannot merely recite the § 5328(a) factors 

and state it considered them generally.” S.W.D. v. S.A.R., 96 A.3d 396, 

407 (Pa. Super. 2014).

Here, the trial court made various findings of fact, in no particular 

order, that correlate to most, but not all, of the factors. See T.C.O. at 1-5. 

Then, the trial court stated that it “considered those factors [the trial court] 

believe[d] relevant at 23 Pa.C.S.A. § 5328.” Id. at 6. 

Specifically, the trial court’s opinion offers no findings related to 

subsection 5328(a)(14) (“[t]he history of drug or alcohol abuse of a party or 

member of a party’s household”) or (15) (“[t]he mental and physical 

condition of a party or member of a party’s household”). We previously 

have remanded when a trial court failed to consider these same two factors. 

See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013). However, in 

A.M.S., instead of merely remanding the case for further fact-finding, we 

explicitly remanded the case for further proceedings to give the trial court 

the opportunity to develop a record pertaining to the history of drug or 

alcohol abuse and the mental and physical condition of the members of the 

mother’s household. Id. The instructions upon remand indicated that the 

evidence simply did not exist in the record.
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Here, however, there was ample evidence for the trial court to 

consider. Mother testified that she had a prior conviction for possession of 

drug paraphernalia, but had no drug or alcohol problems. Notes of 

Testimony (“N.T.”), 7/14/2014, at 83-84. Mother’s expert, Vincent L. 

Carolan, testified that, during his evaluation process, he became aware of 

instances in which Father was intoxicated.4 N.T., 9/12/2014, at 54. Father 

admitted to having an occasional drink, but stated that his employment is 

subject to drug and alcohol testing.5 N.T., 12/12/2014, at 76-77. 

Mother testified that she had no mental or physical conditions that 

would interfere with exercising custody. N.T., 7/14/2014, at 85. Mother’s 

fiancé testified that he smoked, but had no mental or physical conditions 

that would prevent him from caring for the children. N.T., 9/12/2014, at 22, 

24. Mr. Carolan testified that his evaluation uncovered no mental health 

issues for the parties, Mother’s fiancé, or the children’s grandparents. Id. at 

51, 53, 54-55. 

____________________________________________

4 Although Mr. Carolan did not explain this comment in his testimony, 

his report, which was admitted into evidence, states that Father admitted to 

two occasions in which he was intoxicated. Exh. P-8 at 4. However, Mr. 

Carolan concluded that Father’s “screening and clinical evaluation scores do 

not reveal an issue with alcohol or other drugs that impairs [Father’s] ability 

to work, function or parent his three boys.” Id.

5 Mother alleged that Father had a problem with alcohol. Mother’s Brief 

at 16. However, Mother does not cite any support for her contention that 

Father had an alcohol problem. Other than Father’s admission to an 

occasional drink and Mr. Carolan’s reference to Father’s intoxication, we find 

no support in the record to suggest a problem with alcohol.
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This testimony distinguishes this case from A.M.S. There was a 

factual record before the trial court here from which that court could have 

considered subsections (14) and (15). Indeed, here, the trial court easily 

could have concluded that there were no issues related to section 

5328(a)(14) or (15) that were relevant to the custody decision. Thus, 

A.M.S. is distinguishable, and does not mandate reversal. It cannot be 

gainsaid that the trial court should have stated in its opinion that it made 

such a finding. Nonetheless, because the evidence of record was clear, 

because the trial court stated it considered all the factors, and because a 

remand would further delay finality for these children, we find that the 

outcome could not have changed had the trial court made specific findings, 

and that a remand would serve no legitimate purpose.

Mother’s remaining argument is that the trial court misweighed the 

evidence. Mother complains that the trial court did not credit her testimony, 

did not find that Father neglected the children, did not determine that Utah 

would be better for the children, did not credit her expert’s testimony that 

the children should be permitted to move to Utah, and failed to consider the 

children’s preferences. Mother’s Brief at 11-25.

In an appeal of a child custody order, we review the trial court’s 

decision for an abuse of discretion. D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. 

Super. 2014). When the trial court’s findings are supported by competent 

evidence of record, we are bound to accept those findings. Id. Further, we 

must defer to the trial court with regard to credibility and weight of the 
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evidence. Id. “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.” Id. 

Here, Mother essentially asks us to reweigh the evidence and find that 

the testimony and evidence that she presented was more credible than that 

presented by Father. That is exactly what we are not permitted to do by our 

standard of review. We have reviewed the record thoroughly and can find 

no error of law. The trial court’s findings and conclusions were supported by 

the record. Therefore, we affirm the trial court’s custody order.

Finally, Father requests an award of counsel fees and costs pursuant to 

Rule of Appellate Procedure 2744. Father’s Brief at 11-12. That rule allows 

for an award of counsel fees when “an appeal is frivolous or taken solely for 

delay or that the conduct of the participant against whom costs are to be 

imposed is dilatory, obdurate or vexatious.” Pa.R.A.P. 2744. Father argues 

that Mother’s failure to follow the rules unduly delayed the appeal and was 

dilatory. Father’s Brief at 11. While Mother’s failure to label her appeal as a 

Fast Track case and to file a timely concise statement undoubtedly delayed 

the disposition, we cannot conclude that Mother did so solely to delay the 

outcome or that these procedural missteps constitute dilatory, obdurate or 

vexatious conduct. Therefore, we decline to award Father counsel fees.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015