E.A.-D. v. I.S.C.

Superior Court of Pennsylvania

E.A.-D. v. I.S.C.

Superior Court of Pennsylvania·Decided December 24, 2020·No. 362 WDA 2020·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.A-D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellant :

:

v. :

:

I.S.C. : No. 362 WDA 2020

Appeal from the Order Entered February 6, 2020 In the Court of Common Pleas of Clearfield County Civil Division at No(s): No. 2017-1578-CD

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 24, 2020 E.A-D. (“Father”) appeals from the Order granting the request of I.S.C.

(“Mother”) to relocate with the parties’ child, T.A.A-D. (“Child”), a male born in December 2016, to Fairfax County, Virginia. The Order also granted shared legal and physical custody initially on an alternating monthly basis, and granted Father primary physical custody each year from the second Sunday in June until the second Sunday in August, and Mother primary physical custody at all other times. Upon careful review, we vacate and remand for further proceedings.

This case has a lengthy and convoluted procedural history. Briefly, Mother and Father met in Fairfax County, Virginia, in 2015, and Mother became pregnant with Child. Mother and Father relocated to Clearfield County, Pennsylvania. Mother and Father’s relationship was tumultuous both

while Mother was pregnant and after Child was born, with Mother leaving Father on several occasions to either return to Virginia to live with her mother, M.R.E. (“Maternal Grandmother”), or arranging other living arrangements in Pennsylvania. Mother accused Father of domestic violence on multiple occasions, and each party, at different times, obtained Protection from Abuse (“PFA”) Orders against the other party.

In January 2017, Father initiated a child custody action against Mother in Centre County, Pennsylvania, where Father lived at the time. In March 2017, the Centre County court awarded Mother primary physical custody of Child, and awarded Father partial physical custody, which the court directed him to utilize at the home of a family member in Virginia, which is where Mother and Child had relocated. On April 18, 2017, the court issued a Consent Order awarding Father primary physical custody of Child, and awarding Mother partial physical custody.

On April 4, 2018, the trial court issued an agreed-upon Order awarding Mother and Father shared legal custody, Father primary physical custody, and Mother supervised partial physical custody.1 On August 2, 2019, following a pro se custody Petition filed by Mother, the trial court issued a Consent Order granting Mother and Father shared legal custody, Father primary physical

1 On September 22, 2017, the Centre County court transferred the custody action to the Clearfield County Court of Common Pleas, as Father and Child had relocated to Clearfield County.

custody, and Mother partial physical custody on alternating weekends and one day per week.

On September 23, 2019, Mother, pro se, filed a request to relocate with Child to Virginia to live with Maternal Grandmother, and a Complaint for emergency custody requesting primary physical custody over Child.2 The trial court issued a temporary custody Order, and held two hearings on November 27, 2019, and December 4, 2019, after which it directed the parties to file briefs.

On February 6, 2020, the trial court entered the instant Order granting Mother’s request to relocate with Child. The Order also awarded Mother and Father shared legal custody over Child, and shared physical custody on an alternating monthly basis until August 2020, at which point Father would have primary physical custody during the summers, and Mother would have primary physical custody at all other times of the year. Each party was awarded partial physical custody on every other weekend during the portions of the year when the other party enjoyed primary physical custody. The February 6, 2020, Order also rescinded all previous custody Orders.

The trial court, beyond the issuance of the February 6, 2020, Order, did not file a contemporaneous opinion in support of its Order, nor did it explain

2In the Complaint, Mother alleged that Father had been arrested for driving under the influence after arriving to pick up Child at the parties’ agreed-upon custody exchange location at a Sheetz in Centre County.

the basis for its decision at either hearing. Father filed a timely Notice of Appeal, and a Pa.R.A.P. 1925(a)(2)(i) and (b) Concise Statement of matters complained of on appeal. On March 31, 2020, the trial court issued its Pa.R.A.P. 1925(a) Opinion, wherein it made credibility determinations, analyzed the sixteen custody factors required at 23 Pa.C.S.A. § 5328(a), and the ten relocation factors required at 23 Pa.C.S.A. § 5337(h).

Father raises the following issues for our review on appeal:

1. Did the [t]rial [c]ourt err as a matter of law and abuse its discretion by withholding its reasoning for its custody and relocation decision until it issued a [Rule] 1925(a) [O]pinion, violating the provisions of 23 [Pa.C.S.A. §] 5323 and subjecting [Father] to the possibility of unwitting waiver of issues in [Father]’s [Rule] 1925(b) [Concise] Statement of Errors?

2. Did the [t]rial [c]ourt abuse its discretion by[:]

A. Denying [Father] a copy of the [c]ourt[-o]rdered Home Study [Mother] referenced in her testimony and which contained information contradicting [Mother]’s testimony and substantiating [Father]’s testimony;

and

B. Suggesting, sua sponte, that the Home Study could be privileged; and

C. Requiring [Father] to “file something” [sic] in order to obtain a copy of the Home Study; and

D. Submitting the full Home Study to the record, thereby making it unavailable to [Father], only after having rendered a final decision following trial.

3. Were the [t]rial [c]ourt’s conclusions unreasonable and against the weight of the evidence as shown by evidence of record?

Father’s Brief at 10-11.

In his first issue, Father argues that the trial court violated the mandates in section 5323 when it neglected to state its reasons for the custody award, either on the record or in a written opinion or order. Id. at 13. Father indicates that the trial court did not address its reasons for its custody award until it issued its Rule 1925(a) Opinion on March 31, 2020, after Father had already filed his Notice of Appeal and his Concise Statement. Id. Because of the trial court’s failure to delineate the reasons for its custody decisions “at or near the time of verdict,” Father claims he was deprived of the ability to properly appeal the trial court’s custody award without inadvertently waiving potential claims on appeal. Id. at 13-14.

This Court reviews a custody determination for an abuse of discretion.

In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). Our scope of review is broad, but we are “bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). 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 proceedings and demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation omitted).

It is well settled that “[t]he paramount concern in child custody cases is the best interests of the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018).

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