C.A.J. v. D.S.M.

136 A.3d 504
CourtSuperior Court of Pennsylvania
DecidedFebruary 18, 2016
StatusPublished

This text of 136 A.3d 504 (C.A.J. v. D.S.M.) 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
C.A.J. v. D.S.M., 136 A.3d 504 (Pa. Ct. App. 2016).

Opinion

OPINION BY

BENDER, P.J.E.:

Appellant, C.A.J. (“Mother”), appeals from the order entered on June 25, 2015, modifying custody and granting Mother and Appellee, D.S.M. (“Father”), shared legal and physical custody of minor child, G.M. (“Child”). After careful review, we vacate the order and remand to the trial court for proceedings consistent with this opinion.

The trial court summarized the relevant facts and procedural history of this case in its Pa.R.A.P.1925(a) opinion, as follows:

Mother and Father are the parents of one minor child, [] born June [] 2012. Mother originally filed a complaint for custody and special relief on January 1, 2013. Following conciliation, the parties reached an agreement and a Custody Order was entered on January 31, 2013 (hereinafter “2013 Order”). The 2013 Order gave Mother primary physical custody with Father having custody every other weekend during the months of September through May 1. From May 1 through September 1, the parties were to share custody 50/50 on a week on/ week off basis.
Prior to the 2013 Order, Mother and Father shared, custody as mutually agreed upon. Earlier in January 2013, before the 2013 Order was entered, Mother relocated to New Kensington, Pennsylvania. As the courts were not involved, Mother did not seek permission to relocate.
Father filed a pro se Petition for Contempt on February 17, 2015. In his petition, Father alleged that Mother was not giving Child back when it was Father’s time. Father also requested that he be given primary care of Child in the petition. This Court ordered the parties to attend a custody conciliation.
The custody conciliation was held on March 19, 2015. Neither party was represented by counsel at the conciliation. At the conciliation, Father requested that the parties share custody on an alternating bi-weekly schedule due to the distance between the parties’ residences. The parties were not able to reach an agreement on custody and requested a hearing before the court on outstanding custodial issues. On March [506]*50631, 2015, a temporary custody order was entered pending the court hearing on Father’s Petition for Contempt.
The hearing on Father’s Petition for Contempt was held on June 24, 2015, with both parties present. Father testified that Mother violated the 2013 Order by refusing him custodial time and harassing him. Father stated the most recent event occurred on December 23, 2014, when Mother came to his residence demanding he return Child, even though it was his time. Thereafter, Mother kept Child the entire month of January and Father did not see Child until February 6, 2015. Father indicated he made contact with Mother through text message during January with no response until February 6. Mother responded by testifying that Father also denied her access to Child and will not let her speak to Child on the phone.
It became apparent at the hearing that neither party followed the 2013 Order. Father and Mother would keep Child for extended periods of time and exchange custody when it was convenient for them and not when the 2013 Order dictated. Therefore, Father indicated at the hearing that he wanted the custody order changed to a two weeks on, two weeks off schedule, because for all practical purposes Mother and Father were already sharing time on an equal basis. Father also presented the testimony of his girlfriend, Angela Small. She testified that she lives with Father along with her two sons, ages 12 and 5. She stated that Child has a good relationship with her sons and they enjoy spending time together. Mother testified she wanted to retain primary physical custody with Father having custody every other weekend. She indicated that the 50/50 custody the parties had over the summertime was not working.
Following the hearing, on June 25, 2015, this Court entered a new custody order (hereinafter “2015 Order”). The 2015 Order granted shared physical custody to both Father and Mother for a two week on, two week off period. Along with the custody order, this Court also issued an order detailing its analysis of the best interests of Child and discussed the relevant custody factors.

Trial Court Opinion (TCO), 8/6/15, 1-4 (footnotes omitted).

On July 24, 2015, Mother filed a timely notice of appeal and Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Mother now presents the following issues for our review:

I. Did the trial court err and abuse its discretion in modifying the prior custody order when a custody modification petition had not been filed but instead only a petition for contempt had been filed?
II. Did the trial court abuse its discretion in applying the custody factors found in 23 Pa.C.S. § 5328 and in determining the best interests of the child?

Mother’s Brief at 6 (unnecessary capitalization omitted). [507]*507S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super.2014).

[506]*506We review a trial court’s determination in a custody case for an abuse of discretion, and our scope of review is broad. Because we cannot make independent factual determinations, we must accept the findings of the trial court that are supported by the evidence. We defer to the trial judge regarding credibility and the weight of the evidence. The trial judge’s deductions or inferences from its factual findings, however, do not bind this Court. We may reject the trial court’s conclusions only if they involve an error of law or are unreasonable in light of its factual findings.

[507]*507Mother argues that she was denied due process when the trial court entered its June 25, 2015 order modifying the 2013 custody order, because Father only filed a petition for contempt, not a petition to modify custody. Mother contends that before a court can modify a custody order, the filing of a petition to modify custody is required, pursuant to Section 5338 of the Domestic Relations Code.1

While we agree that, generally, the appropriate manner in which to request modification of a custody order is to file a petition for modification in compliance with Pa.R.C.P.1915.15, we have previously stated that “this does not prevent the trial court, under appropriate circumstances to alter a custody/visitation Order when it is in the best interest of the child to do so.” Guadagnino v. Montie, 435 Pa.Super. 603, 646 A.2d 1257, 1262 (1994) (quoting Choplosky v. Choplosky, 400 Pa.Super. 590, 584 A.2d 340, 341 (1990)). In fact, we recently emphasized:

While it is the appropriate practice under the Act and the Rules of Civil Procedure to file a pleading entitled a “petition to modify custody” to seek modification of a custody order, this Court has held nonetheless, that if notice of the proceeding adequately advises a party that custody will be at issue, a court may entertain the request to permanently modify a custody order after hearing in that proceeding.

S.W.D., 96 A.3d at 405-406 (Pa.Super.2014) (citing Guadagnino,

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Bluebook (online)
136 A.3d 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caj-v-dsm-pasuperct-2016.