Bleam, A. v. Wynne, K.

• Court: Superior Court of Pennsylvania
• Decided: October 25, 2023
• Docket: 2618 EDA 2022
• Status: Unpublished

Opinion

J-A21020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ALEXIS BLEAM : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN WYNNE : : Appellant : No. 2618 EDA 2022

Appeal from the Order Entered September 20, 2022 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2022-FC-0026

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 25, 2023

Kevin Wynne (“Father”) appeals from the September 20, 2022 order

entered in the Lehigh County Court of Common Pleas which, inter alia, denied

his petition to modify custody and awarded Alexis Beam (“Mother”) primary

physical custody and Father partial physical custody of now six-year-old L.W.

(“Child”). Father challenges the trial court’s consideration of the 23 Pa.C.S. §

5328 custody factors. Upon review, we affirm.

The relevant procedural and factual history follows. Father and Mother

are parents to Child, who was born in July 2017. The parties were in a

romantic relationship for approximately a year. When they separated in 2018,

they had a verbal custody agreement where Mother had physical custody of

Child during the week, and Father had physical custody every weekend. On

September 2, 2020, following a custody trial, the court ordered the parties to

have joint legal custody and shared 50/50 physical custody of Child. J-A21020-23

On January 1, 2022, Father filed a petition to modify custody requesting

primary physical custody of Child. According to Father, the petition was

prompted by the fact that the parties live 45 minutes apart, Child was

approaching school-age, and Child was going to need to establish a primary

residence. On February 4, 2022, Mother filed an answer and counterclaim

requesting primary physical custody of Child.

Father lives in a home with his fiancé, Michelle Blazofsky (“Fiancée”)

and their two-year-old child. Father is a Quality Assurance Analyst who works

from home while Fiancée is a teacher in the Northern Lehigh School district.

Father enrolled Child in preschool and summer camps.

Mother lives with her parents (“Maternal Grandmother” and “Maternal

Grandfather” collectively, “Maternal Grandparents”) in the home she grew up

in. Mother is a stay-at-home parent during the day. She is enrolled in a

master’s degree program at Kutztown University and attends classes once or

twice a week, relying on Maternal Grandmother to watch Child. Mother does

not believe that preschool is beneficial, and instead takes Child to playgroups,

museums, and parks during the day.

To address the parties’ petitions, the court held a three-day-long

custody trial. At the start of the proceedings, the parties agreed that since

Child was approaching elementary school age, it would be in Child’s best

interest for the court to award one of them primary physical custody during

the week, rather than shared physical custody. The parties also agreed to

joint legal custody of Child.

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During the trial, the court heard testimony from Father; Susan Kane

Yaegar, M.D., Lehigh Valley Children’s Emergency Room pediatric surgeon;

Lena Kuhn, Mother’s friend; Milissen Nunez, Mother’s friend; Johnathan

Velazquez-Rivera, Mother’s friend, Michelle Blazofsky, Father’s fiancée;

Maternal Grandmother, and Maternal Grandfather.

At the conclusion of the trial the court issued an order and opinion, in

which the court considered the Section 5328 custody factors and found all the

factors to be neutral except for factor 3—the parental duties performed by

each party on behalf of Child—which the court found to favor Mother.1 The

court denied Father’s petition to modify, granted Mother’s counterclaim for

custody, and awarded Mother primary physical custody of Child during the

school year. The court awarded Father partial physical custody of Child every

other weekend during the school year, and shared physical custody of Child

during the summer months.

Father timely appealed and filed a contemporaneous concise statement

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The

trial court relied on its September 20, 2022 Order and Opinion in lieu of a Rule

1925(a) opinion.

Father raises the following issues for our review:

A. Did the trial court err and abuse its discretion in giving weighted consideration to Mother as primary caregiver of [] ____________________________________________

1 The trial court found custody factor 6—sibling relationships—to favor Father

because Father has one other child and Mother does not have any other children. The court did not find this factor to be dispositive.

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Child, despite the fact that the parties had been sharing physical custody of [] Child since September 2020?

B. Did the trial court err and abuse its discretion in determining factor number 1 (which party is more likely to encourage and permit frequent and continuing contact between [] Child and the other party) to be even, despite evidence that Mother has previously withheld [] Child from Father?

C. Did the trial court err and abuse its discretion in determining factor number 4 (the need for stability and continuity in [] Child’s education, family life, and community life) to be even, despite the substantial evidence to the contrary?

D. Did the trial court err and abuse its discretion in determining factor number 10 (which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of [] Child) to be even, despite the fact Father has been the parent who has promoted [] Child’s educational needs?

E. Did the trial court err and abuse its discretion in failing to award Father primary physical custody of [] Child based upon the totality of the statutory factors enumerated in 23 Pa.C.S. [] § 5328(a)?

Father’s Br. at 15-16.

A.

This court reviews a custody determination for an abuse of discretion,

and “our scope of review is broad.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.

Super. 2014). This court will not find an abuse of discretion “merely because

a reviewing court would have reached a different conclusion.” In re K.D.,

144 A.3d 145, 151 (Pa. Super. 2016). This Court must accept the findings of

the trial court that the evidence supports. S.W.D., 96 A.3d at 400.

Importantly, “[o]n issues of credibility and weight of the evidence, we defer

to the findings of the trial judge who has had the opportunity to observe the

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proceedings and demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136,

1159 (Pa. Super. 2015) (citation omitted). We can interfere only where the

“custody order is manifestly unreasonable as shown by the evidence of

record.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation

omitted). Further, in a custody case, relief is not warranted unless the party

claiming error suffered prejudice from the mistake. J.C. v. K.C., 179 A.3d

1124, 1129-30 (Pa. Super. 2018).

The Custody Act requires a trial court to consider all of the Section

5328(a) custody factors when “ordering any form of custody,” and further

requires the court to give “weighted consideration to those factors which affect

the safety of the child[.]” 23 Pa.C.S. § 5328(a). A trial court must “delineate

the reasons for its decision when making an award of custody either on the

record or in a written opinion.” S.W.D., 96 A.3d at 401. See also 23 Pa.C.S.

§ 5323(a) and (d). However, “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).

When reviewing child custody matters and the trial court’s consideration

of the Section 5328(a) custody factors, our paramount concern is the best

interests of the child. See Saintz, 902 A.2d at 512 (explaining that this

Court’s “paramount concern and the polestar of our analysis” in custody cases

is the best interests of the child) (citation omitted). “The best-interests

standard, decided on a case-by-case basis, considers all factors which

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legitimately have an effect upon the child’s physical, intellectual, moral, and

spiritual well-being.” D.K.D. v. A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016)

(citations omitted). “Common sense dictates that trial courts should strive,

all other things being equal, to assure that a child maintains a healthy

relationship with both of his or her parents, and that the parents work together

to raise their child.” S.C.B. v. J.S.B., 218 A.3d 905, 916 (Pa. Super. 2019).

Finally, in any action regarding the custody of the child between the parents

of the child, there shall be no presumption that custody should be awarded to

a particular parent and no preference based upon gender. 23 Pa.C.S. §§

5327(a) and 5328(b).

B.

In his first issue, Father avers that the trial court erred in its application

of custody factor 3, which considers the parental duties performed by each

party on behalf of the child. Father’s Br. at 34; 23 Pa.C.S. § 5328(a)(3).

Specifically, Father argues that it was an abuse of discretion for the trial court

to employ the outdated “primary caretaker doctrine” to find that Mother’s role

as primary caretaker tipped the scales in her favor. Id. at 38. Father further

argues that in M.J.M., this Court rejected the application of the primary

caretaker doctrine, stating that it was “no longer viable.” Father’s Br. at 39

(citing M.J.M., 63 A.3d at 339). Father misstates this Court’s holding in

M.J.M.

By way of background, the “primary caretaker doctrine” dates back forty

years ago to Commonwealth ex rel. Jordan v. Jordan, 448 A.2d 1113,

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1115 (Pa. Super. 1982), where this Court held that in cases involving an award

of primary custody “where two natural parents are both fit, and the child is of

tender years, the trial court must give positive consideration to the parent

who has been the primary caretaker.”

Thirty years later in M.J.M., this Court recognized that our legislature

implemented “major revisions” to the Custody Act in 2011, including the

addition of Section 5328, which, as discussed above, “sets forth a list of factors

that a trial court must consider when making a custody determination.” 63

A.3d at 338. In M.J.M., we explain that the primary caretaker doctrine is “no

longer viable” because it has now been incorporated into the Section 5328

custody factors. Id. at 339. Specifically, “the consideration the primary

caretaker doctrine sought to address (which parent spent more time providing

day to day care for a young child) is addressed implicitly” in custody factors 3

and 4. Id. (citing 23 Pa.C.S. 5328 (a)(3) (“The parental duties performed by

each party on behalf of the child.”; (a)(4) (“The need for stability and

continuity in the child’s education, family life and community life.”). Moreover,

“a trial court will necessarily consider a parent’s status as a primary caretaker

implicitly as it considers the [S]ection 5328(a) factors, and to the extent the

trial court finds it necessary to explicitly consider one parent's role as the

primary caretaker, it is free to do so[.]” Id. Accordingly, the trial court did

not err when it considered Mother’s role as Child’s primary caretaker in its

analysis of the Section 5328 custody factors.

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Here, the trial court found that custody factor 3 favored Mother. The

court emphasized that Child resided primarily with Mother until September

2020, when the parties exercised shared custody. Trial Ct. Op., 9/20/22, at

4. Moreover, Mother’s schedule permits her to spend more time with Child

during the day, necessarily providing more day-to-day care for Child. As the

record supports the trial court’s findings, we find no abuse of discretion.

C.

Father next avers that the trial court abused its discretion when it

determined that custody factor 1—which party is more likely to encourage and

permit frequent and continuing contact between the child and the other

party—was even, despite evidence that Mother has previously withheld Child

from Father. Father’s Br. at 38; 23 Pa.C.S. § 5328(a)(1). Father argues that

the trial court heard undisputed evidence that Mother withheld Child from

Father, and no evidence that Father withheld Child from Mother. Id. at 43.

Specifically, Father avers that Mother withheld custody of Child from Father in

2019, prompting him to file a Custody Complaint. Id. at 40. Moreover, Father

asserts that Mother was unavailable for several weeks in May 2020 and May

2022, and failed to disclose her whereabouts while Father cared for Child. Id.

at 40-41.

The trial court acknowledged that Mother withheld Child from Father

four years ago in August 2019 but placed weight on the fact that Mother

“offered Father additional periods of physical custody over the course of time”

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to make up for this transgression. Trial Ct. Op. at 3. As always, we decline

to reweigh the evidence or usurp the trial court’s credibility determinations.

As the record supports the trial court’s findings, we decline to find an abuse

of discretion.

Moreover, Father’s argument that custody factor 1 should have favored

him because Mother failed to disclose her whereabouts is unavailing. While it

might be relevant to the analysis of other custody factors, we fail to discern

how it impacts custody factor 1, with compels the court to consider which

party is more likely to encourage frequent and continuing contact between

the child and the other party, not contact between the two parties.

D.

In his third issue, Father asserts that the trial court abused its discretion

when it concluded that custody factor 4—the need for stability and continuity

in the child’s education, family life, and community life—was neutral. Father’s

Br. at 43; 23 Pa.C.S. § 5328(a)(4). Father argues that this factor should

weigh in his favor because he is gainfully employed, has a fiancée and a new

child with her, and together they are able to care for Child and stick to a

schedule. Id. at 49-51. Father argues that the trial court “focused on Mother

with respect to [C]hild’s schooling and activities” and failed to consider

evidence that he enrolled Child in a formal preschool program, dance lessons,

and summer camp. Id. at 50-51.

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In analyzing this factor, the court credited Mother’s testimony that Child

has an excellent relationship with Maternal Grandparents and participates in

activities with them, that Child participates in horseback riding and yoga when

in Mother’s care, and that Child’s school is walking distance from their home.

Trial Ct. Op. at 5. The court also acknowledged the parties’ different

employment and living situations and, overall, determined the factor to be

even. Id. at 4-5. The record supports the trial court’s findings and, once

again, we decline to reweigh the evidence. Thus, we find no abuse of

discretion.

E.

In his fourth issue, Father avers that the trial court abused its discretion

when it determined that custody factor 10—which party is more likely to

attend to the daily physical, emotional, developmental, educational, and

special needs of the child—did not favor either party. Father’s Br. at 52; 23

Pa.C.S. §5328(a)(10). Father argues that the factor should favor him,

because he is the one who has promoted Child’s educational needs. 2 Id. at

52. Specifically, Father argues that he enrolled Child in preschool when

Mother failed to. Id. at 54.

____________________________________________

2 To support this issue, Father also presents arguments that the trial court failed to consider his testimony regarding Child’s medical treatments and Mother’s disappearances over the years. These arguments are waived, as they were not raised in Father’s Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived”).

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Mother testified that she made an intentional decision to not enroll Child

in preschool because she did not “think it’s the best option for a child when

they’re younger[,]” and that it was not her “style of parenting[.]” N.T. Trial,

9/8/22, at 48, 49. Instead, Mother informed the court that she likes to spend

time with Child during the day and take Child to parks and playgroups as well

as engage in arts and crafts. Id. at 22-23. Father fails to demonstrate how

Mother’s alternative activities failed to meet Child’s educational needs. In

fact, during his testimony, Father agreed that a “child can learn from many

different activities outside of a classroom.” Id. at 38. We discern no abuse

of discretion in the trial court’s conclusion that this factor is even.

F.

In his final issue, Father avers generally that the trial court abused its

discretion when it failed to award Father primary physical custody of Child

based on the totality of the statutory factors enumerated in Section 5328.

Father’s Br. at 59.

The trial court opined:

At the outset of the trial, Father stated that his reasons for seeking the relief he requests are that he fears for [] Child’s safety, he fears for [] Child’s life because of Mother’s motor vehicle accident, Mother’s DUI, Mother’s marijuana use, and tension in Mother’s house. However, he has failed to prove [these] allegation[s] with competent evidence.

Mother’s reason for seeking the relief she requests is that [] Child is now of school age and the residences of the parties are too far for the parties to exercise shared physical custody. The parties agree to these two (2) points.

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The above analysis results in the factors being even except for factor number [3], the primary caregiver.[3] This factor favors Mother. The parties agree that a decision must be made as to primary physical custody since [] Child is of school age and that they reside too far from each other to exercise shared physical custody and, based upon their addresses, the Court finds this agreement reasonable. Therefore, the Court is, at the request of the parties, constrained to find that Mother must be awarded primary physical custody.

Trial Ct. Op. at 8. As discussed above, our review of the records supports the

trial court’s findings. We decline to reweigh the evidence or usurp the trial

court’s credibility determinations. Accordingly, the trial court did not abuse

its discretion when it awarded Mother primary physical custody of Child.

Order affirmed.

Date: October 25, 2023

3 The trial court found custody factor 6—sibling relationships—to favor Father

because Father has one other child and Mother does not have any other children. The court did not find this factor to be dispositive.

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