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C.M. v. M.M.

Superior Court of Pennsylvania

July 12, 2019

CM. Appellant

          Appeal from the Order Entered October 15, 2018 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-16-1076

          BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI [*] , J.


          SHOGAN, J.

         CM. ("Mother") appeals from the October 15, 2018 order denying her petition for modification of a custody order.[1] After careful review, we vacate and remand.

         Mother and M.M. ("Father") are the parents of I.M. ("Child"), who was born in January of 2014. The underlying custody action was initiated by Mother pro se in June of 2016, when Child was two years old. Mother asserted that Father "has not been a constant in [Child's] life," and she requested an award of primary physical custody. Custody Complaint, 6/22/16, at ¶ 7. Following a hearing, the trial court granted Mother and Father shared legal custody, Mother primary physical custody, and Father supervised physical custody on alternating Saturdays for four to five hours.[2] Order, 12/20/16, at ¶¶ 1-3. Thereafter, the parties participated in custody conciliation conferences, which resulted in agreed-upon interim orders maintaining shared legal custody and reducing Father's supervised physical custody to one Saturday every four weeks for no more than five hours.[3] See Interim Orders 9/27/17, 1/24/18 (providing Father "supervised periods of partial physical custody once every four weeks" with Mother supervising).

         Mother filed a petition for modification of custody on April 23, 2018. Mother alleged that Father was inconsistent in exercising supervised physical custody and that he has brought "several partners" around Child. Petition for Modification, 4/23/18, at ¶ 3. Mother requested the trial court to award her "full legal custody," as opposed to shared legal custody as had been ordered in prior orders. Id. at ¶ 4. Following a custody conciliation conference, the court issued an agreed-upon interim order filed on June 7, 2018, granting Mother sole legal custody but directing her to inform Father of all legal custody decisions. Order, 6/7/18. The interim order maintained Father's supervised physical custody one Saturday every four weeks and permitted Father to contact Child by "video chat" every Monday, Wednesday, and Friday for at least five minutes, beginning at 7:00 p.m. Id.

         The trial court held a custody hearing on October 10, 2018, during which Andrea Pulizzi, Esquire, represented Mother, and Father appeared pro se. On October 15, 2018, the trial court denied Mother's petition to modify custody. Order, 10/15/18. The court continued its prior orders granting the parties shared legal custody, Mother primary physical custody, and Father partial physical custody. Id. However, the trial court also modified Father's period of custody; it awarded Father custody of Child on the first weekend of each month from Saturday at 10:00 a.m. to Sunday at 5:00 p.m. Id. Additionally, the trial court directed that the custody exchange would occur in Milford, Pennsylvania.[4] Id. Finally, the trial court granted Father telephone contact with Child every Tuesday and Thursday prior to 7:30 p.m. Id.

         On October 29, 2018, Mother filed a pro se notice of appeal.[5] The trial court filed its opinion pursuant to Pa.R.A.P. 1925(a) on January 15, 2018.

         On appeal, Mother presents the following issues for our review:

I. Whether the trial court erred in failing to utilize the relevant factors in determining the best interests of the child[?]
II. Whether the trial court erred by increasing [Father's] periods of visitation despite testimony and admissions [that Father] wasn't utilizing the time provided to him at time of trial[?]

Mother's Brief at 4.[6]

         We review Mother's issues pursuant to the following scope and standard of review:

[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.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
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.
R.M.G., Jr., supra at 1237 (internal citations omitted). 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).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

         The primary focus 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)).

         It is well settled that trial courts are required to consider "[a]ll of the factors listed in section 5328(a) . . . when entering a custody order." J.R.M. v. J.E.A.,33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in ...

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