M.E v. v. F.P.W.

CourtSuperior Court of Pennsylvania
DecidedSeptember 19, 2014
Docket262 MDA 2014
StatusPublished

This text of M.E v. v. F.P.W. (M.E v. v. F.P.W.) 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
M.E v. v. F.P.W., (Pa. Ct. App. 2014).

Opinion

J-A18018-14

2014 PA Super 204

M.E.V. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

F.P.W.

Appellee No. 262 MDA 2014

Appeal from the Order of January 8, 2014, In the Court of Common Pleas of Clinton County Civil Division at No.: 1132-10

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

OPINION BY WECHT, J.: FILED SEPTEMBER 19, 2014

M.E.V

2014. In its January 2014 order, the trial court reversed a preexisting

August 2012 custody order, in which the trial court had granted Mother

en, daughter I.W. (born in

In effect, the January 2014 order transferred primary physical custody to

seeking the modification of an existing custody order, to consider

individually a raft of factors enumerated by statute. The trial court in this

case did not conduct such an inquiry in tandem with its 2014 order, instead

incorporating by reference its 2012 findings of fact, even though various

the interim. We find that the trial court did not fulfill its statutory obligations J-A18018-14

onsequently, we vacate

the discussion to follow.

Beginning on January 24, 2011, new legislation1 prescribed a number

of factors that a trial court must consider discretely in entering or modifying

a custody order:

(a) Factors. In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a)(1) and (2) (relating to consideration of child abuse and involvement with protective services).[2]

(3) The parental duties performed by each party on behalf of the child.

(4) education, family life and community life. ____________________________________________

1 See Act of Nov. 23, 2010, P.L. 1106, No. 112, § 2 (effective in 60 days). 2 Section 2.1 became effective January 1, 2014, see Act of Dec. 18, 2013, P.L. 1167, No. 107, § 1. This factor has no clear application under the facts of this case.

-2- J-A18018-14

(5) The availability of extended family.

(6)

(7) The well-reasoned preference of the child, based

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one

another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or

(15) The mental and physical condition of a party or

(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

Notably, this Court has held that it is not sufficient that the trial court

merely state its reasoning on the record in open court or conclusorily assert

that it has considered the enumerated factors in reaching its disposition.

-3- J-A18018-14

The Act requires a court to consider all of the § 5328(a) best form 23 Pa.C.S. § 5328(a) . . . . [Subs]ections 5323(a) and (d) reinforce this mandate by requiring a court to delineate the reasons for its decision when making an award of custody either on the record or in a written opinion. Mere recitation of the statute and consideration of the § 5328(a) factors en masse is insufficient. C.B. v. J.B., 65 A.3d 946, 950 (Pa. Super. 2013). failure to place its reasoning regarding the § 5328(a) factors on the record or in a written opinion is an error of law. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). Accordingly, in C.B., when the trial court merely stated that it had considered the § 5328(a) -the- record explanation was insufficient under the statute. 65 A.3d at 950-51. Similarly, in M.P. v. M.P., we found error where the trial court listed the § 5328(a) factors but failed to apply them. 54 A.3d 950, 955-56 (Pa. Super. 2012).

S.W.D. v. S.A.R., ___ A.3d ___, 2014 PA Super 146, at *5 (Pa. Super. July

case-by-case basis, considers all factors [that] legitimately have an effect

-

Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (quoting Arnold v.

Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).

In a prior memorandum, in which this Court affirmed the August 2012

custody order that directly preceded the January 2014 custody order now

factual and procedural history up to that time:

Father and Mother were never married. On August 12, 2010, Mother filed a complaint for custody seeking primary physical custody of the Children. The trial court held a hearing on the custody complaint on September 7, 2010. On that same date, pursuant to an agreement, the trial court entered a custody order, under which the parties were awarded shared legal

-4- J-A18018-14

custody of the Children, and shared physical custody, alternating on a week on/week off basis, except when the parties had

On August 31, 2011, Father filed a petition for modification of custody and for contempt, seeking primary physical custody of the Children and partial physical custody with Mother every other weekend. Father also sought to hold Mother in contempt of the September 7, 2010 custody order because she allegedly had moved from Clinton County to Centre County, in violation of a standard condition incorporated into the custody order that prohibited her from moving her residence from Clinton County without written permission from the trial court. Father stated that he had filed a PFA petition with regard to an incident between the parties and that a hearing on the PFA petition was scheduled to occur on September 2, 2011.

On September 1, 2011, Mother filed a motion to modify the existing custody order, in which she alleged that she had obtained a temporary PFA order against Father in Centre County, where she was residing. Mother asserted that Father filed a petition for a PFA order against her in Clinton County after he was served with the temporary PFA order from Centre County. Mother sought primary physical custody of the Children, partial, supervised physical custody with Father, and shared legal custody. The trial court scheduled a custody hearing for September 27, 2011. The certified record includes transcripts from PFA hearings held on September 2, 9, and 27, 2011. At the hearing on September 27, 2011, the trial court also heard testimony from Father and Mother with regard to their custody modification petitions.

In an order dated September 29, 2011, and entered September 30, 2011, the trial court directed Mother and Father to be examined by Robert J.

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Related

Arnold v. Arnold
847 A.2d 674 (Superior Court of Pennsylvania, 2004)
Commonwealth Ex Rel. Jordan v. Jordan
448 A.2d 1113 (Supreme Court of Pennsylvania, 1982)
Saintz v. Rinker
902 A.2d 509 (Superior Court of Pennsylvania, 2006)
J.R.M. v. J.E.A.
33 A.3d 647 (Superior Court of Pennsylvania, 2011)
M.P. v. M.P.
54 A.3d 950 (Superior Court of Pennsylvania, 2012)
V.B. v. J.E.B.
55 A.3d 1193 (Superior Court of Pennsylvania, 2012)
C.B. v. J.B.
65 A.3d 946 (Superior Court of Pennsylvania, 2013)
S.W.D. v. S.A.R.
96 A.3d 396 (Superior Court of Pennsylvania, 2014)
M.E.V. v. F.P.W.
100 A.3d 670 (Superior Court of Pennsylvania, 2014)

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