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R.S. v. T.T.

Superior Court of Pennsylvania

April 10, 2015

R.S., Appellant
v.
T.T., Appellee

Submitted November 24, 2014

Page 1255

Appeal from the Order entered June 19, 2014, of the Court of Common Pleas, Delaware County, Domestic Relations Division, No(s): 2013-006464. Before OSBORNE, J.

Todd M. Mosser, Philadelphia, for appellant.

Dennis I. Turner, Philadelphia, for appellee.

BEFORE: STABILE, JENKINS, and STRASSBURGER[*] JJ.

OPINION

STRASSBURGER, JUDGE

Page 1256

R.S. (Father) appeals from the final custody order entered June 19, 2014, in the Court of Common Pleas of Delaware County, which awarded primary physical custody of Father's minor son, E.S. (Child), to his mother (Mother) during the school year, and awarded Father and Mother shared physical custody during the summer months. The order also awarded the parties shared legal custody. We vacate and remand for further proceedings consistent with this opinion.

Child was born in December of 2007, as a result of Father's extramarital affair with Mother. On June 19, 2009, Father filed a complaint for partial physical custody and shared legal custody of Child. Father filed an amended complaint for custody on February 1, 2011, in which he requested shared physical custody of Child. This culminated in a custody order entered October 3, 2011, which awarded the parties shared legal and physical custody. Subject to a special schedule for vacations and holidays, Father was granted physical custody of Child each week from 8:00 a.m. Monday morning until 6:00 p.m. on Wednesday. Father also was granted physical custody on alternating weekends.

On June 28, 2013, Mother filed a petition to modify the custody order, in which she requested that she be granted primary physical custody of Child. Father filed a petition to modify the existing custody order on July 23, 2013, in which he requested primary physical and legal custody of Child. A custody trial was held on April 28, 2014. Following the trial, by order entered June 24, 2014, the trial court granted Mother primary physical custody of Child. Subject to a holiday, birthday, and vacation schedule, Father was awarded partial physical custody of Child each Wednesday during the school year from 4:00 p.m. until 7:00 p.m., and on alternating weekends from Friday after school until Sunday at 8:00 p.m. During the summer months, Father was awarded shared physical custody on alternating weeks. Mother and Father retained shared legal custody.

Father timely filed a notice of appeal on July 15, 2014. However, Father failed to file concomitantly a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). Father later filed a concise statement on July 29, 2014. Father filed an amended notice of appeal the following day.[1],[2]

Father now raises the following issues for our review.

1. Should this Court vacate the lower court's final custody order because it was based on unreasonable conclusions relative to the Child's need for stability, and therefore does not further the best interest of the Child, because:
a) The court's most important conclusion (relative to [Child's] commuting time) was not supported by any evidence and was thus not a sustainable finding;
b) The court's order was unreasonable because it failed to address the fact that the Child will now be deprived of Father's care for extended

Page 1257

periods during the school week, which is particularly problematic in light of the court's simultaneous conclusion that Mother will not further the Child's relationship with Father?

Father's Brief at 4.

We address Father's claims mindful of our well-settled standard of review.

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 ...

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