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[U] B.C. v. D.C.

Superior Court of Pennsylvania

March 5, 2014

B.C. Appellee
v.
D.C. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order August 21, 2013 In the Court of Common Pleas of Potter County Civil Division at No(s): 68 of 2010

BEFORE: PANELLA, J., MUNDY, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, D.C. (Mother), appeals from the August 21, 2013 order denying, in part, her petition for modification of the custody of her daughter, M.C.[1] Herein, the trial court awarded both Mother and Appellee, B.C. (Father), shared physical custody of M.C., in lieu of Mother's request for primary physical custody. After careful review, we vacate and remand for proceedings consistent with this memorandum.

We summarize the relevant facts and procedural history of this case as follows. M.C. was born in New York in March 2008. Father initiated the custody matter in February 2010 through the filing of a custody petition. On April 13, 2010, the trial court granted Father primary legal and physical custody, as Mother absconded with M.C. to New York. Mother subsequently filed a petition to modify her custody on December 13, 2010. On January 18, 2011, the trial court entered an order awarding the parties' shared legal custody of M.C. Father sustained primary physical custody of M.C., and Mother obtained partial physical custody of M.C. on alternating weekends from Thursday at 1: 30 p.m. through Monday evening. On August 15, 2011, the parties amended this order, extending Mother's weekend custodial time to 8: 00 p.m. on Monday and implementing a week-to-week physical custody schedule during the summer.

On April 10, 2013, Mother filed a petition for emergency relief, based upon allegations that the brother of Father's paramour sexually abused M.C. while she was in Father's care. Mother subsequently withdrew that petition, without prejudice, as the alleged perpetrator was no longer in contact with M.C. On May 6, 2013, Mother filed the instant petition to modify custody. Within that petition, Mother requested primary physical custody of M.C. Mother implored the trial court to grant her request as M.C. underwent sexual abuse within Father's home.

The trial court held a hearing on Mother's petition to modify on July 19 and August 9, 2013. On August 21, 2013, the trial court granted, in part, and denied, in part, Mother's modification petition. Specifically, the trial court awarded the parties shared legal and physical custody. Mother acquired physical custody of M.C. the first two out of every three weekends, from Friday at 3: 00 p.m. to Monday morning. Additionally, Mother attained custody of M.C. on the third weekend from Sunday at 2: 00 p.m. to Monday morning. Moreover, on this third week, Mother obtained a Wednesday dinner visit from after school to 7: 00 p.m . The trial court also granted Mother an extension of the custodial time on Mondays if the Coudersport Elementary School is closed. Father retained physical custody of M.C. for the remainder of this triweekly period. The trial court did not alter the parties' week-to-week summer schedule. On September 13, 2013, Mother filed a timely appeal along with her concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).[2]

On appeal, Mother raises the following issues for our review.

1. Whether the trial court abused its discretion by failing to set forth its assessments of the factors of [ 23 Pa.C.S.A. §] 5328(a) and therefore did not com ply with [ S] ection 532[ 8] ?
2. Whether the trial court abused its discretion and committed an error of law by failing to give weighted consideration to the factors which affect the safety of the child?
3. Whether the trial court abused its discretion and committed an error of law by giving weighted consideration to [ Father] being the primary caretaker of the child?
4. Whether the conclusions of the trial court are unreasonable as evidenced by the record and should be reversed and are not in the best interests of the minor child?

Mother's Brief at 8.

As the custody trial in this matter was held in July and August 2013, the Child Custody Act ("Act"), 23 Pa.C.S.A. §§ 5321-5340, is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that the provisions of the Act apply if the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011). As with any custody case brought pursuant to the Act, our paramount concern is the best interests of the child. 23 Pa.C.S.A. §§ 5328, 5338. Upon petition, a trial court may modify a custody order if it serves the best interests of the child. I d. § 5338. Section 5328 outlines the 16 best interest factors that a trial court must consider when "ordering any form of custody[ .] " I d. § 5328(a). "All of the factors listed in [ S] ection 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) (citation omitted; emphasis in original). Furthermore, we have concluded that, "[ t] he trial court [ must] set forth its mandatory assessment of the [ 16 best interest] factors prior to the deadline by which a litigant must file a notice of appeal." C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013) (providing this rule shall be prospectively applied from April 22, 2013), appeal denied, 70 A.3d 808 (Pa. 2013).

Herein, the trial court failed to discuss all 16 of the Section 5328(a) best interest factors in open court on August 9, 2013, or within its August 21, 2013 opinion supporting its custody order. Within the trial court's opinion, it stated it "carefully considered the factors set forth in 23 Pa.C.S.A. § 5328[ ] " and it reflected on the factors "set forth in 23 Pa.C.S.A. § 5328(a)(1), [ ] (8) and (13)" regarding the invidious nature of the parties' relationship. Trial Court Opinion, 8/ 21/ 13, at 4.[3] Yet, upon review of the trial court's August 21, 2013 opinion and order, along with the trial transcripts, the trial court neglected to explicitly address all 16 of the best interest factors supporting its custody award. Cf. M.J.M. v. M.L.G., 63 A.3d 331, 336-337 (Pa. Super. 2013) (where the trial court adequately addressed each of the listed Section 5328(a) best interest factors within its original opinion in support of its custody order, the trial court did not err by expounding upon those findings, through citations to the certified record, within its Pa.R.A.P. 1925(a) opinion), appeal denied, 68 A.3d 909 (Pa. 2013). Accordingly, the trial court committed an error of law by failing to set forth its assessment of the 16 best interest factors articulated in Section 5328(a) either in open court or within its opinion entered on August 21, 2013. See C.B., supra ; J.R.M., supra.

As such, we are constrained to remand the matter to the trial court so that it may expressly consider the Section 5328(a) best interest factors when reaching its custody decision. See Pa.R.C.P. 1915.4(d).[4]

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.


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