A.W. v. L.G.

CourtSuperior Court of Pennsylvania
DecidedOctober 29, 2019
Docket443 MDA 2019
StatusUnpublished

This text of A.W. v. L.G. (A.W. v. L.G.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.W. v. L.G., (Pa. Ct. App. 2019).

Opinion

J-S51030-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.W. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : L.G. : : Appellee : No. 443 MDA 2019

Appeal from the Order Entered January 25, 2019 In the Court of Common Pleas of Berks County Civil Division at No(s): 18-3777

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 29, 2019

Appellant, A.W. (“Father”) appeals from the order entered in the Berks

County Court of Common Pleas, which denied his pro se complaint for custody,

styled as a petition for visitation with his minor son, I.G. (“Child”), while Father

is incarcerated. We affirm.

The trial court issued two opinions, dated January 24, 2019, and April

1, 2019, which set forth the relevant facts and procedural history of this case.1

Therefore, we have no need to restate them.

On appeal, Father raises the following issues for review:

DID THE TRIAL COURT ABUSE ITS DISCRETION OR [OVERRIDE] THE LAW WHEN IT CONCLUDED THAT THE UNPROVEN ALLEGATIONS OF PHYSICAL ABUSE WERE FACTUAL EVIDENCE OF ABUSE BY [FATHER] TOWARDS ____________________________________________

1The trial court makes clear that Father’s notice of appeal was timely filed on February 20, 2019. (See Trial Court Opinion, filed April 1, 2019, at 1 n.1.) J-S51030-19

[MOTHER]?

WHETHER IT IS AN ABUSE OF DISCRETION BY THE TRIAL JUDGE BY HIS STATEMENT OF FACT THAT [FATHER] CONTINOUSLY LIED ABOUT WHAT OCCURRED ON SEPTEMBER 28, 2013 IN AN ATTEMPT TO PRESENT [MOTHER] IN A NEGATIVE LIGHT?

DID THE TRIAL COURT ABUSE ITS DISCRETION, OR [SHOW] BIAS [IN FAVOR OF] MOTHER OR [OVERRIDE] THE LAW IN ITS REASONING AND CONCLUSION THAT [FATHER] WAS UNREMORSEFUL AND COMPLETELY UNREHABILITATED BECAUSE HIS TESTIMONY AT TRIAL WAS CONTRARY TO HIS GUILTY PLEA AS [FATHER] IS NOW EXERCISING HIS RIGHTS OF DUE PROCESS OF CHALLENGING HIS CONVICTION ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL?

DID THE COURT ABUSE ITS DISCRETION BY NOT FULLY EXPLORING THE MERIT OF [FATHER’S] PETITION AND VISITATION BASED ON ITS UNREASONABLE AND UNSUBSTANTIATED CONCLUSION THAT [FATHER] IS [UNREPENTANT AND] UNREHABILITATED?

(Father’s Brief at 1-2, and 9).

Our scope and standard of review of a custody order are as follows:

[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.

A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (quoting R.M.G., Jr. v.

F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009)). “On issues of credibility and

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weight of the evidence, we defer to the findings of the trial judge who has had

the opportunity to observe the proceedings and demeanor of the witnesses.”

Id.

When deciding an award of custody, the court must conduct a thorough

analysis of the best interests of the child based on the factors set forth in the

Child Custody Act (“Act”). E.D. v. M.P., 33 A.3d 73 (Pa.Super. 2011). See

also A.D. v. M.A.B., 989 A.2d 32, 36 (Pa.Super. 2010) (stating: “With any

child custody case, the paramount concern is the best interests of the child.

This standard requires a case-by-case assessment of all the factors that may

legitimately affect the physical, intellectual, moral and spiritual well-being of

the child”).

“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) (emphasis in original). “The court shall

delineate the reasons for its decision on the record in open court or in a written

opinion or order.” 23 Pa.C.S.A. § 5323(d). “There is no required amount of

detail for the trial court’s explanation; all that is required is that the

enumerated factors are considered and that the custody decision is based on

those considerations.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013),

appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A court’s explanation of the

reasons for its decision, which adequately addresses the relevant custody

factors, complies with Section 5323(d). Id. Further,

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The parties cannot dictate the amount of weight the trial court places on the 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 (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super.

2002)). “Ultimately, the test is ‘whether the trial court’s conclusions are

unreasonable as shown by the evidence of record.’” Ketterer v. Seifert, 902

A.2d 533, 539 (Pa.Super. 2006) (quoting Dranko v. Dranko, 824 A.2d 1215,

1219 (Pa.Super. 2003)).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable James M.

Bucci, we conclude Father’s issues merit no relief. The trial court opinions

comprehensively discuss and properly dispose of the questions presented.

(See Custody Order and Opinion, filed January 25, 2019, at 1-9) (analyzing

all custody factors, including eight additional factors regarding incarcerated

party who requests visitation, and concluding denial of Father’s petition for

visitation is in Child’s best interests) and (Trial Court Opinion, filed April 1,

2019, at 3-15) (incorporating court’s prior opinion and stating it considered

affidavit of probable cause in connection with Father’s attack on Mother on

February 3, 2013, to provide background for what led Father to attack Mother

with machete on September 28, 2013; even if court had not considered events

of February 3, 2013, or found those events had not occurred, court still found

-4- J-S51030-19

Mother’s testimony credible about Father’s attack on September 28, 2013;

Mother’s testimony was also consistent with Father’s guilty plea to aggravated

assault for events on September 28, 2013; Father showed no remorse for his

actions; court found Father incredible at custody hearing and found Mother

credible; any error in court’s consideration of affidavit of probable cause was

harmless; Father made only blanket assertions of violations of his due process

and equal protection rights; Father’s attempts to renounce his guilty plea, his

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Related

Ketterer v. Seifert
902 A.2d 533 (Superior Court of Pennsylvania, 2006)
Dranko v. Dranko
824 A.2d 1215 (Superior Court of Pennsylvania, 2003)
S.M. v. J.M.
811 A.2d 621 (Superior Court of Pennsylvania, 2002)
R.M.G. v. F.M.G.
986 A.2d 1234 (Superior Court of Pennsylvania, 2009)
A.D. v. M.A.B.
989 A.2d 32 (Superior Court of Pennsylvania, 2010)
E.D. v. M.P.
33 A.3d 73 (Superior Court of Pennsylvania, 2011)
J.R.M. v. J.E.A.
33 A.3d 647 (Superior Court of Pennsylvania, 2011)
M.J.M. v. M.L.G.
63 A.3d 331 (Superior Court of Pennsylvania, 2013)
A.V. v. S.T.
87 A.3d 818 (Superior Court of Pennsylvania, 2014)

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A.W. v. L.G., Counsel Stack Legal Research, https://law.counselstack.com/opinion/aw-v-lg-pasuperct-2019.