M.J.N. v. J.K.

169 A.3d 108
CourtSuperior Court of Pennsylvania
DecidedAugust 18, 2017
DocketNo. 330 EDA 2017
StatusPublished
Cited by1 cases

This text of 169 A.3d 108 (M.J.N. v. J.K.) 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.J.N. v. J.K., 169 A.3d 108 (Pa. Ct. App. 2017).

Opinion

OPINION BY

BENDER, P.J.E.:

M.J.N. (Father) appeals from the December 23, 2016 order that awarded J.K. (Mother) and Father joint legal custody of Z.K. (Child) (born in June of 2009), and awarded Mother primary physical custody of the Child and Father partial physical custody in accordance with a schedule delineated in the order. The order also held Mother in contempt for not complying with the prior custody order. After review, we vacate in part, affirm in part, and remand.

The trial court set forth a summary of the factual and procedural history of this case in its Pa.R.A.P. 1925(a) opinion, stating:

The parties’ child, Z.K., was born out of wedlock [i]n June [ ], 2009. [Father] filed a Complaint in Custody on December 21, 2009. Since March 12, 2012, the parties have been exercising custody pursuant to a stipulation into which they entered on that date. Pursuant to the stipulation, the parties agreed to shared legal custody of their son, and alternating physical custody on a two-week rotation with a roughly fifty-fifty split of custodial periods with the child.
On June 21, 2016, [Father] filed a Petition for Contempt and Modification of Custody Order. The contempt component was based upon [Father’s] allegation that [Mother] withheld the minor child on several occasions during which exchanges were supposed to occur, including one specific incident where the child allegedly missed a keyboard lesson. [Father] asserted that [Mother] would not bring the child to [Father’s] residence unless [Father] was physically present despite the fact that [Father’s] live-in girlfriend was home at the times at issue. [Father] further claimed that [Mother] could be heard on the phone while [Father] was speaking to the minor child and that [Mother] coached the minor child on what to say.
On December 1, 2016 and December 2, 2016, the [e]ourt conducted a custody trial during which both parties were represented by counsel. The [c]ourt also conducted an in camera interview of the minor child.
On December 23, 2016, the [c]ourt issued an Order granting in part and denying in part [Father’s] Petition for Modification. The Order reviewed each of the factors for a custody determination and made specific factual findings with respect to each factor. 23 Pa.C.S.[ ] §§ 5328, 5329.1. The [c]ourt granted [Father’s] Petition for Contempt and held [Mother] in contempt for failing to comply with the parties’ March 12, 2012 stipulated custody schedule. As a remedy, the [c]ourt awarded [Father] makeup custodial time.
On January 10, 2017, [Father] filed a Motion for Reconsideration and a Motion to Open the Record in order to present additional evidence. Both of the foregoing motions were denied by Order dated January 12, 2017.
[Father] filed the instant Notice of Appeal on January 23, 2017, along with a Concise Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925(b).

[111]*111Trial Court Pa.R.A.P. 1925(a) Opinion (TOO), 2/16/17, at 1-2.

As noted by the trial court, after entry of the December 23, 2016 order, Father filed the instant appeal and raises the following issues for our review:

A. Whether the Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on December 23, 2016, as it failed to award Father Primary Physical Custody of the [C]hild, contrary to the best interest and general welfare of the subject minor Child where the totality of the facts and evidence of Record elicited at Trial support an award of Primary Physical Custody to Father, when considering the same in light of the Factors identified in 23 Pa.C.S.[ ] § 5328?
B. Whether the Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on December 23, 2016, as the Schedule imposed will serve to damage and substantially impact the relationship between Father and the Child as there will be, pursuant to the Order, periods of time when Father will go as many as ten (10) days without personal contact with the Child?
C. Whether the Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on December 23, 2016 in not including a Right of First Refusal or affording Father extra time in the Summer, or on days where the Minor Child does not have school to make up for his significant loss of custodial time with the child?
D. Whether the Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on December 23, 2016, as the facts and evidence of Record elicited at Trial in this matter, as well as the Trial Court[’s] finding Mother in Contempt, demonstrate that Father is more likely than Mother to encourage frequent and continuing contact between the Child and the other Parent, and this factor should weigh heavily in favor of Father?
E. Whether the Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on December 23, 2016, as the facts and evidence of Record elicited at Trial in this matter demonstrate that Father is more likely than Mother to maintain a loving, stable, consistent and nurturing relationship with the Child and this factor should weigh heavily in favor of Father?
F. Whether the Trial Court committed an Error of Law and Abuse of Discretion in issuing the Order entered on December 23, 2016, as the facts and evidence of Record elicited at Trial in this matter demonstrate the level of conflict between the Parties and their willingness ... to cooperate with one another, and this factor should weigh heavily in favor of Father?
G. Whether the Trial Court committed an Error of Law and Abuse of Discretion in Denying Father’s Motion in Li-mine to Preclude the Testimony of the seven (7) year old Minor Child despite Evidence of Mother’s influence upon the Minor Child regarding Father, and history of attempting to influence and tamper with witnesses during the pendency of this matter?

Father’s brief at 4-5.

When presented with child custody matters, we are guided by the following scope and standard of review:

[0]ur scope is of the broadest type and our standard is abuse of discretion. This Court must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to [112]*112issues of credibility and weight of the evidence, this Court must defer to-the trial judge who presided over the proceedings and thus viewed the witnesses first hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only, if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

E.D. v. M.P. 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Taylor, V. v. Smith, K.
2023 Pa. Super. 160 (Superior Court of Pennsylvania, 2023)

Cite This Page — Counsel Stack

Bluebook (online)
169 A.3d 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mjn-v-jk-pasuperct-2017.