M.O. v. J.T.R.

85 A.3d 1058, 2014 Pa. Super. 15, 2014 WL 444214, 2014 Pa. Super. LEXIS 23
CourtSuperior Court of Pennsylvania
DecidedFebruary 4, 2014
StatusPublished
Cited by82 cases

This text of 85 A.3d 1058 (M.O. v. J.T.R.) 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.O. v. J.T.R., 85 A.3d 1058, 2014 Pa. Super. 15, 2014 WL 444214, 2014 Pa. Super. LEXIS 23 (Pa. Ct. App. 2014).

Opinion

OPINION BY WECHT, J.:

M.O. (“Mother”) appeals from the May 23, 2013 order that amended the parties’ February 12, 2013 child custody order following a hearing on J.T.R. (“Father”)’s petition for modification. The principal issue that we confront in this case is whether a trial court must address all sixteen factors enumerated in 23 Pa.C.S.A. § 5328 when the trial court decides a discrete and narrow issue ancillary to a materially unchallenged custody arrangement. We conclude that the trial court is not required to do so, and we affirm that court’s order.

A review of the record establishes the following facts. Mother and Father are divorced. They are the parents of an adult daughter and two minor sons, J.R. (born in September 2000), and, F.R. (born in September 2002) (collectively “the Children”). Mother currently resides in Ken-nett Square, Chester County, Pennsylvania, with her husband and his minor daughter. Father resides in Havre de Grace, Maryland, with his paramour, his adult daughter, and his paramour’s daughter.

On November 13, 2007, the parties entered into an Agreed Parenting Plan Order in Tennessee. Under that order, [1060]*1060Mother had primary custody of the minor children, and Father had partial custody, including six weeks in the summer. The order was modified in December 14, 2009, when Mother moved, but there was no substantive change in custody time. On April 5, 2011, Mother registered the original and modified custody orders in Pennsylvania. The order was modified further by consent on May 16, 2012.

On January 8, 2013, Father filed a petition for modification, seeking more time with the Children, a change in transportation responsibilities, and clarification of the prior order. On February 12, 2013, following a conciliation, an order issued that, among other things, gave Father five weeks of summer custody, but required Father to be off work during his vacation time with the Children. On April 11, 2013, Father filed a Demand for Trial and Certificate of Readiness — Custody. Father’s pre-trial statement raised several issues, including his ability to work during vacation time with the Children.

The trial court succinctly recounts the more recent history of the case:

On Monday, May 20, 2013, two days prior to the commencement of the custody hearing, and at the express request of counsel for [Mother], the undersigned conducted a pretrial conference by telephone with both attorneys, which lasted in excess of one-half hour. On the morning of May 22, 2013, the undersigned conducted an in[-]chambers pre-hearing conference with both attorneys, which lasted approximately one hour. As a result, all issues were resolved by the agreement by the parties except for a single, narrow issue: that is, whether Father would be required to be off from work during three weeks of his summer custodial vacation time. Pursuant to the underlying Custody order, Father has five total weeks of summer custodial vacation time, two of which always take place during the first two weeks of July when his employer’s plant is closed annually. Therefore, Father is off from work during the first two weeks of July during his custodial vacation time. Father received three additional weeks of summer custodial vacation time with the children. Father believes he should not be required to be off from work during these weeks. Mother believes that Father should be required to be off from work in order to supervise and spend time with the children.
The parties presented very limited testimony related to this single issue [on May 22, 2013]. The court listened to the evidence presented and immediately, from the bench, set forth the reasons for the Court Order modifying the Custody Order to permit Father not to have to take off from work during three of his five custodial vacation weeks.1

Trial Court Opinion (“T.C.O.”), 7/2/2013, at 1-2 (unpaginated) (citations to record omitted).

On June 3, 2013, Mother filed a motion for reconsideration of the May 22, 2013, which was denied on July 2, 2013. On June 19, 2013, Mother filed a timely notice of appeal.1 Mother also timely filed [1061]*1061a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) on that date.

Mother raises three issues for our review:

I. Whether the Trial Court committed [an] error of law and/or abused its discretion in failing to consider the sixteen (16) relevant factors set forth in 23 Pa.C.S. § 5328(a)(l-16)?
II. Whether the Trial Court committed [an] error of law and/or abused its discretion in failing to delineate the reasons for its decision on the record in open court or in a written opinion pursuant to 23 Pa.C.S. § 5323(d)?
III. Whether the Trial Court committed an error of law and/or abused its discretion in failing to conduct a hearing de novo pursuant to Pa. R.C.P. No. 1915.4 — 3(b)?

Mother’s Brief at 10.

Mother challenges the trial court’s custody order. Our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion.... 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.

V.B. v. 55 A.3d 1193, 1197 (Pa.Super.2012).

We address Mother’s final issue first. While Mother complains that the trial court did not conduct a de novo hearing, Mother consented to a hearing limited to the single issue that the parties were not able to resolve by agreement. Notes of Testimony (“N.T.”), 5/22/2013, at 4-5. If Mother did not agree with this procedure, she should have raised an objection with the trial court. There is nothing in the record to suggest that she did so. Mother’s failure to object results in waiver of this claim. See Fillmore v. Hill, 445 Pa.Super. 324, 665 A.2d 514, 516 (1995) (“Failure to timely object to a basic and fundamental error ... will result in waiver of that issue. On appeal, the Superior Court will not consider a claim which was not called to the trial court’s attention at a time when any error committed could have been corrected. The principle [sic ] rationale underlying the waiver rule is that when an error is pointed out to the trial court, the court then has an opportunity to correct the error.” (citations omitted)); Smith v. Smith, 431 Pa.Super. 588, 637 A.2d 622, 626 (1993) (“Appellant’s failure to object to the court’s noncompliance with the procedural [requirements] constituted a waiver of his [issue on appeal].”).

Because Mother’s remaining two issues are interrelated, we address them together. Mother argues that the trial court refused to consider expressly each of the sixteen factors that must be considered pursuant to 23 Pa.C.S.A. § 5328(a). Mother also argues that the trial court did not provide its rationale. for its decision, as required by 23 Pa.C.S.A. § 5323(d). Mother’s Brief at 18-26.

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Cite This Page — Counsel Stack

Bluebook (online)
85 A.3d 1058, 2014 Pa. Super. 15, 2014 WL 444214, 2014 Pa. Super. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mo-v-jtr-pasuperct-2014.