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[U] R.M. v. S.B.

Superior Court of Pennsylvania

July 25, 2013

R.M. Appellee
v.
S.B., Appellant R.M. Appellee
v.
S.B., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order of September 14, 2012, in the Court of Common Pleas of Montgomery County, Civil Division at No. 2011-31094

Appeal from the Order of October 31, 2012, in the Court of Common Pleas of Montgomery County, Civil Division at No. 2011-31094

BEFORE: STEVENS, P.J., LAZARUS and COLVILLE [*] , JJ.

MEMORANDUM

COLVILLE, J.

In this consolidated appeal, S.B. ("Mother") appeals from the custody order dated September 14, 2012, and from the amended custody order dated October 31, 2012, in the Court of Common Pleas of Montgomery County, which granted, inter alia, R.M. ("Father") primary physical custody and Mother partial custody of the parties' female child, M.N.M.-B. ("Child"), born in November of 2006. We affirm.

The trial court aptly described the procedural and factual history of this case as follows, in part:

Mother and Father were never married and separated in March of 2009. . . . Father returned to his home country, Paris, France in April of 2010. [Child] lived with Father in France from August 2010 until November 2010. On or about November 15, 2010, the parties entered into a custody agreement which was entered as an Order of the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County by the Honorable Barry A. Weisberg ["custody agreement"]. The November 15, 2010 custody agreement provides the parties with shared legal custody, Mother with primary physical custody and Father with partial physical custody. . . .

Trial Court Opinion, 01/02/13, at 1-2. The custody agreement provided that Father would have partial custody of Child in France every August, during Child's Christmas break and/or winter break, and during Child's spring break. Father was granted one week of his choosing with Child every year in the United States. In addition, the custody agreement provided, inter alia, that "Mother shall ensure that Skype communication between Father and [Child] occurs every Wednesday at 6 pm Eastern time and every Sunday at 4 pm Eastern time." Id. at 2. The custody agreement also included the following provision:

All provisions of this Agreement as to Father's parenting time and communications with the child are to be strictly construed. In the event Mother breaches the terms of the Agreement, Father may make application to the Court for an Order transferring custody to Father. Upon a finding of interference/breach by the Court, custody shall be transferred to the Father.

Id.

The trial court continued with the procedural history as follows:
On or about November 10, 2011, Mother registered the . . . custody agreement in [the] Montgomery County Court of Common Pleas. Thereafter, by Order dated December 2, 2011, Judge Weisberg relinquished jurisdiction over the parties' custody matter.
On February 10, 2012, Mother filed Exceptions in Support. On March 30, 2012, Father filed a Petition [to Modify] Custody and a Petition for Contempt. On May 9, 2012, Father filed an Amended Petition to Modify Custody. On May 16, 2012, Father filed an Emergency Petition for Special Relief for Renewal of Minor Child's Passport.
On June 1, 2012, Father appeared with counsel and Mother appeared pro se before this Court for an emergency hearing on Father's Emergency Petition for Special Relief for Renewal of Minor Child's Passport. At the conclusion of the emergency hearing, this Court found that Mother's unwillingness to renew [Child's] U.S. passport was to thwart Father from traveling to France with [Child] for his court-ordered custodial time. As a result, this Court issued an Order dated June 1, 2012, granting Father's Emergency Petition for Special Relief. This Court directed Mother to apply and/or renew the child's U.S. Passport within two (2) days of receiving designated funds from Father. This Court also ordered Mother to promptly provide Father's counsel with proof that she applied for [Child's] U.S. Passport. Immediately upon receipt of [Child's] new U.S. Passport, Mother was to provide the new passport to Father's counsel. Father's request for counsel fees and costs in connection with his Emergency Petition for Special Relief for Renewal of Minor Child's Passport was to be consolidated for review/hearing on the date assigned for outstanding Petitions for Contempt, Modification of Custody and Support Exceptions.

Id. at 3-4.

The hearing was held on September 13 and 14, 2012.[1] At the conclusion of the hearing, on the record and in open court, the trial court granted Father's petitions to modify custody and for contempt, and granted Father primary physical custody and Mother partial physical custody during all of Child's school breaks. The court granted the parties joint legal custody. In addition, the court granted Father's request for counsel fees and costs in connection with his emergency petition for special relief for renewal of minor child's passport.

By written order dated September 14, 2012, the court, inter alia, granted Father's petition to modify custody and granted Father primary physical custody, granted Mother partial physical custody during all of Child's school breaks, and granted the parties joint legal custody. By separate order the same date, the court, inter alia, granted Father's petition to modify custody, granted Father's petition for contempt, and granted Father's request for counsel fees and costs in connection with Father's emergency petition for special relief for renewal of minor child's passport. The order also stated that Father was awarded sole physical custody of Child. On October 31, 2012, the trial court issued an amended order which provided the order "dated September 14, 2012 stating [Father] is awarded sole physical custody is amended to [Father] is awarded primary physical custody and [Mother] is award[ed] partial physical custody . . . ." Order, 10/31/12 (emphasis in original). Mother's timely appeal of the September 14, 2012, order and the amended October 31, 2012, followed.

On appeal, Mother raises the following issues:
1. Whether the Trial Court erred and/or abused its discretion in failing to develop a full and complete record, which was necessary to properly consider all of the sixteen (16) factors set forth in 23 Pa.C.S.A., [§] 5328[(a)], [f]actors to consider when awarding custody?
2. Whether the Trial Court erred and/or abused its discretion in failing to give equal weight to all of the sixteen (16) custody factors set forth in 23 Pa.C.S.A., [§] 5328[(a)] . . ., and instead transferred custody from Mother in Pennsylvania to Father in France as a result of the Court's finding that Mother was in contempt of the custody order?
3. Whether the Trial Court erred and/or abused its discretion in failing to develop the record regarding the ten (10) relocation factors set forth in the Relocation statute, 23 Pa.C.S.A., [§] 5337[h], in failing to apply the ten (10) relocation factors and in failing to place the burden of proof on . . . Father, the parent proposing the relocation, pursuant to 23 Pa.C.S.A., [§] 5337(i).

Mother's Brief at 7.

Our standard of review in custody cases is well-established:
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.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

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 well-being. Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).

Relevant to this custody case are the factors set forth in Section 5328(a) of the Child Custody Act ("Act"), 23 Pa.C.S.A. §§ 5321-5340, which provides:

§ 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.
(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.A. § 5328(a).

In her first issue, Mother argues the record was insufficient for the trial court to properly consider the section 5328(a) factors.[2] Further, Mother asserts the court "failed to make a penetrating and comprehensive inquiry and failed to develop the record itself." Mother's Brief at 13; see English v. English, 469 A.2d 270, 272 (Pa. Super. 1983) (stating, in part, that "[i]t is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself"). We disagree.

In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court thoroughly analyzed the section 5328(a) factors. See Trial Court Opinion, 01/02/13, at 9-21. With respect to the first factor, i.e., which party is more likely to encourage and permit frequent contact between the children and another party, Mother argues "[t]he record should have been further developed with regard to Mother's compliance with the custody order." Mother's Brief at 14. The court found, in part,

This Court heard testimony supported by evidence that Mother has a history of violating custody orders and/or agreements since the parties[] were first before Judge Weisberg in New Jersey. . . . This Court found that Mother's contemptuous and vexatious conduct has not changed. This Court heard credible testimony substantiated by Mother's own admissions that she has continuously violated the parties' current agreement of November 15, 2010.
It became apparent to this Court that Mother is unable to support [Child's] relationship with Father and she is unable to trust Father's parenting skills. Mother cannot adequately encourage and permit [Child] to cultivate a frequent and consistent relationship with Father until she can put [Child's] best interest ahead of her own bitterness toward Father. The existing custody order advances Mother's ability to alienate Father from the affections of [Child] and allows Mother to interfere with Father's visitations and communications with [Child]. . . . As a result, the best interests of [Child] are no longer being served in Mother's primary custodial care.

Trial Court Opinion, 01/02/13, at 10-11.

The record revealed that, since entry of the custody agreement in November of 2010, Child had visited Father in France on eight separate occasions. However, on cross examination, Mother testified she did not make Child available on March 24, 2012, to go for a week of vacation with Father to France. Mother testified she received an e-mail from Father in December of 2011, that he wanted to take a week of vacation with Child in March of 2012. Mother testified, "I don't take those [e-mails] seriously until I get the travel itinerary, but yes, I did receive it." N.T., 09/14/12, at 12. Mother testified that, starting on December 30, 2011, she blocked Father's e-mails, and, as such, she did not receive Father's subsequent e-mail that included the flight itinerary. Thereafter, Father arrived at Mother's home on March 24, 2012, but Mother would not make Child available to Father.

Mother testified that, after Child returned to her primary physical custody in 2010, she had stopped answering Father's e-mails for a time, in part, because of her feelings of "grief and anger, " and because she "needed to just shut down and kind of – I needed to get some relief." Id. at 61. Mother testified she sought treatment from a cognitive behavioral therapist from approximately June of 2011, to December of 2011, because she recognized that she needed to get help and that her feelings would "have a bad influence on [Child] in the long term." Id.

Mother testified that, as a result of the progress she had made in treatment, she "was well enough that when [Father] sent [her] an e-mail in December [of 2011] that [she] saw it as an opportunity to improve [their] relations and kind of make a fresh start." Id. at 66. On December 19, 2011, Mother responded to Father's e-mail and provided information about Child's activities and general well-being. However, on December 30, 2011, Mother sent an e-mail to Father, which stated, in part, "[Father], I have not read your last e-mail. I have decided not to read any of your e-mails as I do not find them helpful in our co-parenting. Your e-mails will no longer be accepted by my inbox and will be deleted before they arrive." Id. at 73.

Father testified that Mother has failed to provide him with Child's health insurance card, with the name of Child's school or any other information regarding Child's school schedule, or with any information regarding Child's vision problem. Father testified Child told him that she has eyeglasses, but Mother never provided Father with eyeglasses for Child during her visits with Father. In addition, Father testified that Mother provided no Skype access for Child for a month around May of 2012, and that Mother "quite regularly will forget Skype, " which is scheduled to occur twice per week according to the custody agreement. N.T., 9/13/12, at 67. Based on the foregoing testimonial evidence, we reject Mother's argument that the record was not fully developed regarding the first factor of section 5328(a).

With respect to the third factor, i.e., the parental duties performed by each party, Mother argues the record is devoid of testimony regarding Mother's performance of parental duties. Contrary to Mother's assertion, Mother introduced into evidence exhibit M-1, which was an e-mail from her to Father that included the activities Child was currently enrolled in as well as the activities in which she intended to enroll Child. In addition, Mother testified to her involvement in Child's medical care. Further, the trial court considered evidence that Father was the primary custodian of Child from August of 2010 to November of 2010 and that Mother has been the primary custodian since the custody agreement of November 15, 2010 with Father having several partial custodial visitations with Child, mostly in France. The trial court had sufficient evidence upon which to base its conclusion that both parents provide Child with care control, protection, support and subsistence and perform daily parenting duties on behalf of Child, but that Mother's vexatious conduct in interfering with Father's visitation and communication with Child evidenced her inability to put Child's interests above her own. As such, we reject Mother's argument that the record was not fully developed regarding the third factor of section 5328(a).

With respect to the fourth factor, i.e., the need for stability and continuity in the child's education, family life and community life, Mother argues there was no testimony "addressing the impact an immediate relocation to a different country would have on" Child's stability in these areas. Mother's Brief at 15. However, the testimony revealed that Child had visited Father in France eight times since the custody agreement. Further, at the time of the hearing, Child was five years old and had not yet started kindergarten or even attended preschool while in Mother's custody. The court found that Mother's alienating and contemptuous behavior would prevent Child from having a meaningful relationship with Father and that Child's emotional and psychological health was best served by granting Father primary physical custody so that Child would have a relationship with both parents. We discern no abuse of discretion.

With respect to the fifth factor, i.e., the availability of extended family, Mother argues the record was not developed regarding her extended family. However, the testimonial evidence revealed that Child and Mother reside with Child's maternal grandparents. Further, the evidence revealed that Child's paternal grandparents live in the south of France and that Child has a large extended family on her paternal side who reside in both France and Germany, including first cousins close in age to Child. We conclude the record was sufficiently developed for the court to consider the fifth factor of section 5328(a).

With respect to the ninth factor, i.e., which party is more likely to maintain a loving, stable, consistent and nurturing relationship with Child adequate for her emotional needs, Mother argues the record is devoid of any information regarding this factor. We conclude the record was sufficiently developed. The court found that Father is more likely than Mother to maintain a relationship with Child adequate for her emotional needs because he is more likely to encourage Child to maintain contact with Mother than vice versa and to abide by court orders. Competent record evidence supports the court's finding. Thus, we will not disturb it.

Finally, with respect to the tenth factor, i.e., which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of Child, Mother argues there was no testimony for the court to adequately address this factor. We disagree. The trial court found that in addition to Mother's interference with Child's relationship with Father, Mother's willful refusal to keep Father abreast of Child's health and education is harmful to Child. The testimonial evidence supports the court's finding that Mother's "vexatious conduct towards Father does not serve [Child's] best interests, " and, thus, Father can best attend to Child's needs in these areas. Trial Court Opinion, 01/02/13, at 19. For all of these reasons, we reject Mother's first issue on appeal.

In her second issue, Mother argues the trial court abused its discretion in placing more weight on the section 5328(a) factors that involved Father's allegations of contempt against Mother.

We discern no abuse of discretion in the trial court's consideration of the section 5328(a) factors in light of the record evidence. Moreover, the evidence supports the trial court's finding that Mother made "continuous attempts to thwart Father from having an adequate parent-child relationship with [Child]." Trial Court Opinion, 01/02/13, at 8. The record supports the trial court's findings that Mother impeded Father's right to parent Child, interfered with Father's visitation and communication with Child, and was unable to put Child's best interests above her own. In addition, the evidence supports the trial court's finding that "the best interests of [Child] are no longer being served in the primary custodial care of Mother" and that "Mother's vexatious conduct will cause more harm to [Child] than [Child] flying to France to live primarily with Father." Id. at 9. Further, it is well-established that this Court defers to the trial court with respect to issues of credibility and weight of the evidence. See C.R.F., III, 45 A.3d at 443. As such, we reject Mother's second issue to the extent she challenges the trial court's determinations regarding the weight of the evidence. Mother's second issue fails.[3]

In her third and final issue, Mother argues the trial court erred or abused its discretion in failing to develop the record regarding the relocation factors set forth in 23 Pa.C.S.A. § 5337(h).[4] Further, Mother argues the court erred or abused its discretion in failing to place the burden of proof in this custody matter on Father pursuant to 23 Pa.C.S.A. § 5337(i)(1) (providing that the party proposing relocation has the burden of proving that relocation will serve the child's best interest as set forth under section 5337(h)). We disagree. This custody matter came before the trial court on Father's separate petitions to modify custody and for contempt, filed on March 30, 2012, and not on a relocation request pursuant to section 5337. Mother's final issue fails. Accordingly, we affirm the orders.

Orders affirmed.


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