March 3, 2014
Appeal from the Order Entered August 5, 2013 In the Court of Common Pleas of Montgomery County Civil Division No.: 2011-22262.
Joseph D. Seletyn, Esq.
BEFORE: ALLEN, JENKINS, and FITZGERALD, [*] JJ.
R.D., ("Father"), appeals from the August 5, 2013 order granting the petition for special relief filed by M.D., ("Mother"), ordering that the parties' children be enrolled in kindergarten in Kutztown Elementary School in Kutztown Area School District, directing that the parties share transportation equally, ordering that they meet at a location half way between the parties' residences to exchange custody, and denying Father's counterclaim. We affirm.
Mother and Father married in June 2005. They are the parents of twins, K.D. and L.D. ("Children"), who were born on September 1, 2007. The parties separated in 2011 and Mother relocated to Kutztown, Berks County. Father remained in the family home in Hatfield, Montgomery County.
Father filed a custody complaint on April 1, 2011, and on May 25, 2011, the parties entered into an agreed temporary custody order providing for shared legal custody and shared 50/50 physical custody of Children. On that same day, Mother filed a petition for relocation to which Father filed a timely objection. On September 26, 2011, Mother filed a petition to modify custody.
Following a five day trial on February 6 and 7, 2012, and August 1, 2, and 3, 2012, and after consideration of the parties' post-trial motions, on November 27, 2012, the trial court entered a custody order. That order maintained the status quo, i.e., the parties continued to enjoy shared legal and physical custody of Children, and set out a detailed custody schedule. The shared physical custody schedule was ordered as follows: Father has custody of Children every Monday after school until drop off at school on Wednesday, and every other weekend. Mother has custody of Children every Wednesday after school until drop off at school on Friday, and every other weekend. The order also granted Mother's petition for relocation to Kutztown. Importantly, that order did not direct where the then-five year old Children would attend kindergarten the following year. Neither party took an appeal from the November 27, 2012 custody order.
On February 6, 2013, Mother filed a petition for special relief in which she requested that the trial court enter an order directing "that the children shall begin kindergarten at Kutztown Area School District, Kutztown Elementary School in August 2013." Trial Ct. Op., 10/4/13, at 2. On March 14, 2013, Father filed an answer and counterclaim to Mother's petition in which he requested that the court deny Mother's petition and "enter an order that the children shall be enrolled in and attend Hatfield Elementary School in the North Penn School District." Id.
On July 22, 2013, the trial court held a hearing on Mother's petition and Father's counterclaim. The court heard the testimony of Mother, her expert, Brenda Winkler, Ph.D., and Father. We adopt the trial court's recitation of the witness's testimony. See id. at 2-6. Following the hearing, on August 5, 2013, the trial court issued an order granting Mother's petition for special relief and denying Father's counterclaim. Father timely filed a notice of appeal on August 30, 2013. The trial court issued an order on September 4, 2013, directing Father to comply with Pa.R.A.P. 1925 within twenty-one days, and Father timely complied. On October 3, 2013, Mother filed a motion to quash this appeal.
We first address the motion to quash this appeal filed by Mother. Relying on In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009), Mother argues that this appeal should be quashed because Father violated Pa.R.A.P. 1525(a)(2)(i) by failing to file his Rule 1925(b) statement concurrently with his notice of appeal as is required in children's fast track appeals. Although Father did not file his concise statement with his notice of appeal, we note K.T.E.L. makes clear that a failure to file a 1925(b) statement concomitantly with the notice of appeal will result in a defective notice of appeal, but is not necessarily a basis for quashal. K.T.E.L., 983 A.2d at 747. Instead, whether this transgression results in quashal of the appeal should be determined on a case-by-case basis taking into consideration, among other factors, prejudice to the other parties in the case. Id. at 748.
Here, Father filed his statement on September 13, 2013, eight days after being ordered to do so by the trial court. The trial court filed a Rule 1925(a) opinion on October 4, 2013, in which it addressed the merits of the issues raised by Father. Mother argues that Father's failure to file his statement with his notice of appeal caused delay and prejudice to her interests. However, it does not appear that the trial court's issuance of a responsive opinion was unreasonably delayed or hampered in any way by Father's failure to initially comply with Rule 1925(a)(2)(i). Furthermore, because Father complied with the trial court's order directing him to file his Rule 1925(b) statement, Mother's motion to quash this appeal is denied. See J.P. v. S.P., 991 A.2d 904, 908 (Pa.Super. 2010) (holding failure to file 1925(b) statement when ordered by the trial court will result in waiver of all issues and appeal will be dismissed).
Father raises one issue on appeal:
Having previously approved Mother's relocation, and at the same time determining that Father's relationship with [C]hildren was substantial and should be fostered, did not the trial court err in subsequently determining that the children would attend school in Mother's county and in fashioning a transportation order that effectively deprived Father of that relationship, created an undue hardship on him and his young children, and created a scenario whereby Mother could manipulate the conditions to limit Father's quality and quantity of time during his periods of custody?
Father's Brief at 4.
This Court's scope and standard of review is well settled in reviewing a custody order:
[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion.
Staub v. Staub, 960 A.2d 848, 851 (Pa.Super. 2008) (citation omitted).
Furthermore, "it is well established that the paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual well-being and is to be made on a case-by-case basis." Id. at 853 (citation omitted). We note that, although the order sub judice is not, strictly speaking, a custody order, the decision as to where a child attends school should be made using the best interest standard. Id. at 854; see also Dolan v. Dolan, 548 A.2d 632, 635 (Pa.Super. 1988).
Subsumed within Father's stated question are two issues: (1) whether the trial court erred in determining that Children should attend Kutztown Elementary School and (2) whether the court erred in designating that the parties exchange custody of Children at a location half way between the parties' residences rather than their places of employment. First, Father argues that the trial court erred in directing Children attend Kutztown Elementary School. He specifically argues that, in determining that Children's best interests would be served by attending kindergarten in Kutztown, the trial court discounted the history of Children's residence since birth and their attendance at schools and camp in the Hatfield area, their support system of friends and family, and their activities while in Father's custody. Father also claims the trial court erred in relying on Dr. Winkler's testimony about the benefits of full day kindergarten programs, and the suitability and strengths of the Kutztown School District in reaching its decision.
With respect to Father's argument that the trial court failed to consider that the best interests of Children would be to remain in the North Penn School District where they attended preschool, had their child care services, and their base of friends, the trial court opined:
At the July 22, 2013 hearing, Mother testified that [C]hildren would have "lots" of friends at (sic) in the Kutztown school district since twenty five of the children from their preschool would be attending Kutztown Elementary School. Father did not present similar testimony with regard to [C]hildren's friends from the daycare in Hatfield. Father's statement that the North Penn School District would be in the best interests of the children because they would therefore remain "in the school district where they had previously attended preschool, had their child care services, and their base of friends" disregards the fact that [C]hildren also attended pre-school in Kutztown, and, as a consequence have their child-care services in Kutztown, and a base of friends in Kutztown. Father's statement that [C]hildren should "remain" in Hatfield is also misplaced as [C]hildren have spent half of their time in Kutztown, and half of their time in Hatfield, for over a year.
Trial Ct. Op. at 10-11.
The trial court also noted, "Mother presented evidence which was persuasive as to her request that the Kutztown Area School District was the appropriate school district for [C]hildren, K.D. and L.D. [C]hildren's education is the focus of the August 5, 2013, order." Trial Ct. Op. at 18. We agree. In light of the testimony and evidence presented by the parties, we cannot conclude that the trial court abused its discretion in determining that Children's attendance at Kutztown Elementary School is in their best interest. See Staub, 960 A.2d at 851.
Next, Father argues that the trial court erred in fashioning the transportation portion of the order when it designated the meeting place as the midpoint between the parties' residences instead of their places of employment. He claims the result of the trial court's determination was to limit, impair, and destroy his ability to have continuing and meaningful involvement in Children's school and extracurricular activites, and shorten his direct time with Children. Father also alleges the transportation portion of the order created an undue hardship on him and Children and created a scenario whereby Mother could manipulate the conditions to limit Father's quality and quantity of time during his periods of custody. In making this argument, Father emphasizes the severe negative impact this decision will have on him. See Father's Brief at 25. Father avers that Hatfield is the appropriate custody exchange location because it is the mid-point between his place of employment, Center City Philadelphia, and Mother's place of employment, Kutztown.
The trial court addressed Father's issues as follows:
Neither Father nor Mother have presented any evidence that [C]hildren have suffered or have been negatively impacted by the commuting situation, therefore, Father's claim that the trial court failed to consider the "onerous impact" of distance and time of travel is speculative, not supported by the evidence and without merit. Nevertheless, Father now argues that the impact of commuting from his residence in Hatfield to school in Kutztown during his periods of partial physical custody would have an "onerous impact" on [C]hildren. However, Father does not acknowledge that if [C]hildren were to attend school in the North Penn School District, then the commute would be, by Father's own statement, equally "onerous" when they are in Mother's custody and commuting from Kutztown to Hatfield. The parties in this matter share 50/50 custody of the children, with a split in custody occurring mid-week. Therefore, regardless of which school district they attend, due to the respective locations of the parties' residences, [C]hildren will be experiencing a longer commute on certain days.
Trial Ct. Op. at 11-12.
Father testified that Paternal Grandmother or the babysitter sometimes provide transportation to and from the children's daycare in Hatfield when they are in Father's custody. According to Father's testimony, even if [C]hildren were to attend school in Hatfield, he would be relying on [them] to continue to provide transportation to and from school, and, to and from the custodial exchange during the school week. Therefore, Father's claim that the trial court has cut down on Father's custodial time by making the exchange point equidistant between the parties' residences is without merit. In most instances, based on his own testimony, Father himself will not be making the commute to pick up [C]hildren. [C]hildren will be picked up by a third party and then driven to Father's residence which is consistent with Father's previous transportation routine. Therefore, his commute on most days will not be altered. Furthermore, the issue is what is in [C]hildren's best interest and not Father's.
Id. at 12.
Father testified [at the hearing] that the midpoint between Mother's employment in Kutztown and his employment in Center City, Philadelphia would be Hatfield. However, as previously stated in this opinion, there was testimony from both Mother and Father that Father does not, in fact, work in Center City, Philadelphia every day of the week, but that we works in Downingtown, Pennsylvania "two or three times per week." The trial court took this fact into consideration when reaching a decision as to transportation issues connected with [C]hildren's school week.
Id. at 15.
Our careful review of the record reveals that the trial court considered several factors when making its decision as to the best interests of [C]hildren. Those factors included (1) the amount of driving done by each parent individually and the amount of driving to be done by third parties; (2) the places of employment of each parent; (3) the availability of extended family or other third parties to assist in the case of an emergency involving [C]hildren at school; (4) the value of a full-day kindergarten program as opposed to a half-day program; and (5) the suitability of Kutztown Elementary School as testified to by Mother's expert witness.
Most of Father's argument emphasizes how the trial court's order will negatively impact and inconvenience him. However, as the trial court aptly noted, "the question of the best interest of the Father is not the main focus of the inquiry but the question of the best interests of [C]hildren is." Id., see also Staub, 960 A.2d at 854. With this in mind, we conclude that the trial court's decision as to the choice of elementary school and location for custody exchanges is supported by the facts of record. The trial court properly considered the arrangements proposed by the parties in light of Children's best interest. We, therefore, discern no abuse of discretion in the trial court's conclusion that Children's best interest was served by enrolling them at Kutztown Elementary School. See Staub, 980 A.2d at 854. Accordingly, Father is not entitled to relief.
Motion to quash denied. Order affirmed.