W.C.F. v. M.G.

115 A.3d 323

2015 PA Super 102

W.C.F., Appellant

v.M.G., Appellee.

No. 2128 EDA 2014

Superior Court of Pennsylvania.

Argued Dec. 9, 2014.

Filed April 29, 2015.

Ann M. Funge, Philadelphia, for appellant.

Norman Perlberger, Bala Cynwyd, for appellee.

BEFORE: LAZARUS, WECHT, and STRASSBURGER, JJ.^*

Opinion

OPINION BY LAZARUS, J.:

W.C.F. (“Father”) appeals from the order entered in the Court of Common Pleas of Philadelphia County granting M.G. (“Mother”) primary custody of the parties' two-year old daughter (“Child”), granting the parties shared legal custody, and granting Father partial custody (six days every two weeks). After our review, we vacate and remand. Despite multiple findings that point to an award of primary custody to Father, the trial court awarded Mother primary physical custody and Father partial custody. After our review of the parties' briefs, the record, and the lower court opinions, we conclude that the court's determination that Mother be awarded primary physical custody is unreasonable in light of its own factual findings which are amply supported in the record. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super.2014) (this Court may reject trial court's conclusions in child custody matter only if they involve error of law or are unreasonable in light of factual findings).

Mother and Father were married in 2010. Their only child was born in 2012. Father is Assistant Director of Technology at the Mastery Charter High School in Germantown. Mother is a Senior Manager of Technical Accounting at Comcast.

Father is a U.S. citizen; he was raised in Florida. Mother is a native of Malaysia and moved to the United States after meeting Father. Mother became a naturalized citizen in October 2012, two weeks before Child was born. Mother's parents (Maternal Grandmother and Maternal Grandfather) relocated to the United States in July 2012, before Child was born, and moved into Mother and Father's two-bedroom apartment in Old City Philadelphia.

Since Child's birth, Maternal Grandmother has been the primary caretaker for the parties' child. As a result of Father's belief that Mother's family, in particular Maternal Grandmother, was blocking his attempts to bond with Child, the parties agreed that Maternal Grandparents would move out of the parties' apartment and obtain their own residence. As it turned out, however, Mother and Child left along with Maternal Grandparents on January 23, 2013.

The next day, Father filed a complaint for shared legal and physical custody of Child. Mother filed for divorce and sought to confirm her legal and primary physical custody in that complaint. Since separation, Mother has resided with her sister and her parents on the 700 block of South Street in Philadelphia. Mother's brother resides there on occasion as well. Father resides in an apartment in Ardmore, where a separate bedroom is set up for Child.

On February 8, 2012, the court entered an interim order preserving the “status quo.” Notably, Mother created that status when she took Child out of the marital home and moved in with her parents. The interim order provided Mother with primary physical custody and Father with partial physical custody every Monday, Wednesday and Friday from 6:30 p.m. until 8:30 p.m., and on Sunday from 11:00 a.m. to 6:00 p.m. The court scheduled a protracted hearing, which included psychological evaluations, and the court heard testimony on August 9, 2013 and on February 5, 2014.¹

On August 23, 2013, Father filed an amended complaint for custody, seeking sole legal and primary physical custody of Child with supervised visitation or partial custody to Mother. Following the custody hearing, the trial court, on June 17, 2014, entered the current custody order and filed a Summary Opinion dated June 18, 2014. The order grants Mother primary physical custody and grants Father partial physical custody on a repeating two-week basis, as follows:

• Saturday 10:00 a.m. until Sunday 7:00 p.m.

• Tuesday 5:00 p.m. to 8:00 p.m.

• Thursday 5:00 p.m. to Friday 7:00 p.m.

• Tuesday 5:00 p.m. until Wednesday 8:00 p.m.

• Thursday 5:00 p.m. until 8:00 p.m.

Father filed a timely notice of appeal and a concise statement of matters complained of on appeal on July 16, 2014. The trial court filed a Pa.R.A.P. 1925(a) opinion on August 20, 2014. Father raises the following issues for our review:

1. Did the trial court err in awarding primary [physical] custody to Mother despite its determination that it was in the child's best interests to award primary custody to Father?

2. Did the trial court err in expressly relying on Mother's primary physical custodian status, the interim custody status quo created by order without prejudice, in making its determination, especially where evidence showed that Mother surreptitiously vacated the marital residence with the child when she was only 3 months old and that Maternal Grandmother, in fact, was the primary caregiver?

3. Did the trial court err in concluding that keeping the child in the daily care of Maternal Grandmother was “less disruptive” given the Court's own findings and evidence to the contrary?

Appellant's Brief, at 7.

We begin with our scope and standard of review: We review a trial court's determination in a custody case for an abuse of discretion, and our scope of review is broad. M.P. v. M.P., 54 A.3d 950, 953 (Pa.Super.2012). Because we cannot make independent factual determinations, we must accept the findings of the trial court that are supported by the evidence. Id. We defer to the trial judge regarding credibility and the weight of the evidence.Id. The trial judge's deductions or inferences from its factual findings, however, do not bind this Court. Id. We may reject the trial court's conclusions, but only if they involve an error of law or are unreasonable in light of its factual findings. Id. See also J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super.2011) ; Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super.2005) ; Landis v. Landis, 869 A.2d 1003, 1011 (Pa.Super.2005).

When a trial court orders a form of custody, the best interest of the child is paramount. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.2011). To determine the child's best interest, the trial court must consider the following factors when “ordering any form of custody.” 23 Pa.C.S. § 5328(a). Those factors are:

(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.

(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.

23 Pa.C.S. § 5328(a).

Moreover, on issues of credibility and weight of the evidence, we defer to the findings of the trial court, which has had the opportunity to observe the proceedings and demeanor of the witnesses. R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super.2009). 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. Id. The test is whether the evidence of record supports the trial court's conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super.2006).

At the custody hearing, the court heard testimony from Mother and Father, as well as Paternal Grandmother. Robert L. Tanenbaum, Ph.D., submitted a court-ordered custody evaluation report; this report was entered into evidence without Dr. Tanenbaum's testimony, by agreement of the parties. Doctor Tanenbaum concluded:

Information gathered about [Child's] physical and psychological health during the course of this evaluation, are not consistent with the ongoing allegations made by her Mother about Father's negative parenting behaviors. According to [Child's] pediatrician, this child remains in good health and appears to be developing normally. According to Dr. Price, who has very recently worked behaviorally with these parents and their child (including maternal grandmother), there have been no abnormal behaviors exhibited by this child in that office setting.

* * * *

The results of the present custody evaluation are most consistent with a phased-in expansion of Father's custodial time with his daughter. There is insufficient support in the data obtained for requiring supervised visitation of the minor

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