Rudzinski, J. v. Salmon, C.

• Court: Superior Court of Pennsylvania
• Decided: June 20, 2023
• Docket: 2823 EDA 2022
• Status: Unpublished

Opinion

J-S13016-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

JACQUELYN RUDZINSKI : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CHRISTOPHER SALMON : No. 2823 EDA 2022

Appeal from the Order Entered November 2, 2022 In the Court of Common Pleas of Philadelphia County Domestic Relations at 0C2000950

BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED JUNE 20, 2023

Jacquelyn Rudzinski (Mother) appeals from the order which granted

shared physical custody of A.R. (Child) to Mother and Christopher Salmon

(Father), and sole legal custody of Child to Father. We affirm.

Child is two years old, having been born in August 2020. The trial court

explained:

The parties to this action were in a relationship from November 2014 to May or November 2019. Notes of Testimony 10/26/22, 15. [C]hild was conceived sometime in November of 2019. NT 20. Mother lives in a two-bedroom home in Northeast Philadelphia with her three children. NT 13, 48. Mother has an eleven-year-old child from a previous relationship and a six- month-old child with her current partner. NT 45-46. Mother’s fiancé and the father of her six-month-old does not live in the home and works as an [ICU] doctor. NT 46, 87. Mother works at Thomas Jefferson Hospital as a respiratory therapist. NT 13-14. Mother works twelve-hour shifts, three days a week. NT 14, 84. ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S13016-23

Father lives in a three-bedroom home with his wife in Bucks County. NT 168. In addition to [his w]ife’s four-year-old child from a previous relationship, Father and wife are the parents of a six-month old. NT 168-169. Father works in sales and financing at automotive dealerships and recently completed training at a new dealership. NT 169-170. He testified that once training is completed, he will be working 5 days a week. NT 173. The parties live approximately 35 minutes apart. NT 327.

Trial Court Opinion, 1/12/23, at 6-7 (footnotes omitted).

On September 30, 2020, Mother filed a complaint seeking sole physical

and legal custody of Child.1 Father filed an answer and counterclaim on April

16, 2021. The parties entered into interim consent orders in May 2021 and

October 2021. On February 25, 2022, Father filed a motion for special relief.

The trial court held “a protracted hearing” on October 26, 2022. Order,

11/2/22, at 1. After a “full day hearing,” the court “held the matter under

advisement.” Trial Court Opinion, 1/12/23, at 2. On November 2, 2022, the

court entered a four-page order detailing the award of shared physical custody

“on a 2-2-5-5 basis.” Order, 11/2/22, at 1. The court also determined, “[i]n

accordance with the custody factors stated on the record, the court placing

____________________________________________

1 Father had filed for custody in Bucks County, and the trial court in Bucks County determined “Philadelphia was the proper venue.” Trial Court Opinion, 1/12/23, at 1 n.1.

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heavy weight on factors #1, 13 and 16, Father shall have sole legal custody

of the child.” 2 Id. at 2.

On November 4, 2022, Mother timely filed a notice of appeal and concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2).

Mother presents the following question for review:

Did the Court of Common Pleas abuse its discretion in determining child custody and parenting time with regard to the parties’ [C]hild, A.R.?

Mother’s Brief at 1.

Mother argues the trial court “failed to even acknowledge let alone weigh

and balance [M]other’s primary and most times sole caretaking role for

[Child].” Id. at 15. Mother claims the court disregarded Mother’s “past role

as the child’s primary caretaker,” which is “an important and often critical

factor … now reflected in [the Child Custody Act].” Id. (citation omitted); see

also Mother’s Reply Brief at 1-5. Mother asserts the trial court “misconstrued”

and “misapplied” this Court’s decision in M.J.M. v. M.L.G., 63 A.3d 331 (Pa.

Super. 2019). Mother’s Brief at 19-21. Throughout her argument, Mother

revisits the hearing testimony, and assails the weight the trial court gave the

2 Factor 1 requires that the court consider which “party is more likely to encourage and permit frequent and continuing contact between the child and another party”; factor 13 requires consideration of “the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another”; and factor 16 provides for consideration of “any other relevant factor.” See 23 Pa.C.S.A. § 5328(a).

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testimony in considering the statutory factors which informed its decision. Id.

at 16-32.

Father argues the trial court’s order is proper. See Father’s Brief at 3-

12. Father maintains the trial court considered the statutory factors and “ruled

correctly … based on the testimony given at trial.” Id. at 11.

Preliminarily, we recognize:

Our standard and scope of review of a custody order is well- established. Our standard of review over a custody order is for a gross abuse of discretion. Such an abuse of discretion will only be found if the trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias[,] or ill[-]will as shown by the evidence of record.

A.L.B. v. M.D.L., 239 A.3d 142, 147 (Pa. Super. 2020) (citation and quotation

marks omitted).

Further,

[w]e 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 issues of credibility and weight of the evidence, we must defer to the [trial court] who viewed and assessed 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.

Id. at 147-48.

Prior to “making an award of custody, the Child Custody Act requires

trial courts to consider all 16 factors set forth at 23 Pa.C.S.A. § 5328(a) to the

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extent the factors are relevant.” E.B. v. D.B., 209 A.3d 451, 468 (Pa. Super.

2019) (citation omitted). “It is within the trial court’s purview as the finder of

fact to determine which factors are most salient and critical in each particular

case.” M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). In all custody

matters, “the paramount concern is the best interest of the [child] involved.”

A.L.B., 239 A.3d at 148.

Mother asserts the trial court erred in relying on M.J.M. and failed to

“properly weigh and consider Mother’s primary and at times sole caretaking

role for [Child,] which should have been a very important consideration in the

[trial] court’s custody decision.” Mother’s Brief at 19. Mother states that in

M.J.M., this Court “merely recognized that the ‘primary caretaker doctrine’ is

no longer needed as a stand-alone, common[-]law doctrine, because the

statutory factors now reflect this important consideration.” Id. We disagree.

In M.J.M., a mother appealed from a custody order granting primary

physical custody of the parties’ child to the father. The mother asserted the

trial court erred “because the opinion it issued in support of its determination

was insufficient in content.” M.J.M., 63 A.3d at 334. The mother claimed,

“the trial court’s articulation of its reasons must be detailed and extensive.”

Id. at 336. In rejecting the mother’s argument, we stated: “[T]he trial court

did precisely what it should have done; it weighed the entirety of the section

5328(a) factors in making the custody determination and articulated its

considerations in a manner that informed the parties of the reasons for the

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custody award.” Id. We analyzed the “major revisions” to the Child Custody

Act which took effect in 2011:

[R]evisions [to the Child Custody Act] included the addition of section 5328, which … sets forth a list of factors that a trial court must consider when making a custody determination. Prior to listing the specific factors, this provision provides: “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[.]” 23 Pa.C.S.A. § 5328(a).

The language of this statute is clear. It explicitly provides that all relevant factors shall be considered by the trial court, and the only factors that should be given “weighted consideration” are factors that “affect the safety of the child[.]” Id. “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b); see also Ario v. Ingram Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194, 1201 (2009). If the Pennsylvania Legislature intended for extra consideration be given to one parent because of his or her role as the primary caretaker, it would have included language to that effect. Stated another way, the absence of such language indicates that our Legislature has rejected the notion that in analyzing both parents, additional consideration should be given to one because he or she has been the primary caretaker.

Furthermore, the consideration the primary caretaker doctrine sought to address (which parent spent more time providing day- to-day care for a young child) is addressed implicitly in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§ 5328(a)(3) (“The parental duties performed by each party on behalf of the child.”); (a)(4) (“The need for stability and continuity in the child’s education, family life and community life.”). The considerations embraced by the primary caretaker doctrine have been woven into the statutory factors, such that they have become part and parcel of the mandatory inquiry.

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In short, the Legislature has created a mandatory inquiry to aid trial courts in determining the best interests of the child in a custody dispute. In doing so, it articulated the components of a parent’s obligations and characteristics, and a child’s needs and welfare, that must be incorporated in the trial court’s custody decision where the parents are incapable of doing so on their own. In setting forth these factors, the Legislature has required the trial court to give additional weight only to factors that it finds affect the safety of the child. This language is clear, and we cannot expand it to provide that a trial court must also give weighted consideration to a party’s role as primary caretaker. We simply cannot graft the judicially-created primary caretaker doctrine on to the inquiry that the Legislature has established, and so we conclude that the primary caretaker doctrine, insofar as it required positive emphasis on the primary caretaker's status, is no longer viable.

We hasten to add that this conclusion does not mean that a trial court cannot consider a parent’s role as the primary caretaker when engaging in the statutorily-guided inquiry. … [A] trial court will necessarily consider a parent’s status as a primary caretaker implicitly as it considers the section 5328(a) factors, and to the extent the trial court finds it necessary to explicitly consider one parent’s role as the primary caretaker, it is free to do so under subsection (a)(16). It is within the trial court’s purview as the finder of fact to determine which factors are most salient and critical in each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa.Super.2010) (“In reviewing a custody order ... our role does not include making independent factual determinations.... In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand.”).

M.J.M., 63 A.3d at 338-39 (italic emphasis in original, bold and underline

emphasis added).

Like the trial court, we find this Court’s discussion in M.J.M. relevant to

the parties’ dispute. Instantly, the trial court referenced all 16 factors set

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forth in 23 Pa.C.S.A. § 5328(a). See N.T., 10/26/22, at 324-32; Trial Court

Opinion, 1/12/23, at 7-9 (trial court stating it “considered all of the statutory

factors, placing its reasoning on the record.” (record citation omitted)). The

court further observed that parties “cannot dictate the amount of weight the

trial court places on evidence.” Trial Court Opinion, 1/12/23, at 12.

Mother testified that she and Father dated from 2014 to 2019. N.T.,

10/26/22, at 15, 131. Child was born in August 2020, and was two years old

at the time of the custody hearing. Id. at 13, 42. Mother described her

communication with Father as “very conditional,” and previously “volatile.”

Id. at 36, 92. Mother did not receive text messages Father sent two weeks

after Child’s birth, “because [Father] was blocked.” Id. at 98-99. Mother

stated that she “blocked [Father i]n March,” approximately five months before

Child was born. Id. at 99. Mother testified that she did not permit Father any

time with Child prior to the parties agreeing to the first interim court order in

May 2021, when Child was seven months old. Id. at 99-100. Mother

explained that among other concerns, she was uneasy with Father’s drinking.

Id. at 103-04.

Mother works three 12-hour shifts a week as a respiratory therapist.

Id. at 13-14. According to Mother, her family members or fiancé care for

Child when she works. Id. at 45. Mother testified that she is home with Child

when she is not working. Id. at 76. Mother only works weekends if Child is

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with Father; she also plans to reduce her work schedule, but stated, “I’m not

part-time yet.” Id. at 84-85.

Father testified that he was starting a new job and would be working

five days a week, from 9 a.m. to 4 p.m. or 5 p.m. Id. at 173. He admitted

to having two convictions of driving under the influence (DUI), with the most

recent conviction occurring in 2015. Id. at 175. Father testified he has not

had “any problems since then.” Id. at 213.

Father confirmed that Mother blocked him on her cell phone in March

2020. Id. at 181. As a result, Father contacted “pretty much all of [Mother’s]

immediate family,” because he wanted to know “what’s going on? I need[ed]

to know if my child is healthy.” Id. at 182. According to Father, he learned

through “a family member, [Child] was born[,] … was a boy, and he was

healthy.” Id. at 183. Father stated he “went immediately” to court. Id. at

184. Father first met Child when Child was seven months old and the parties

consented to an interim order which provided Father with custody of Child for

two hours on Thursdays and Sundays. Id. at 183-84. In October 2021, the

parties entered into a second order which increased Father’s custody to every

other Thursday from 10 a.m. to 6 p.m., and on alternating weekends from

Friday at 5 p.m. to Sunday at 6 p.m. Id. at 42.

Father stated: “I’m not trying to take [Child] away from [Mother], I just

want my shared time.” Id. at 178; see also id. at 208 (Father repeating,

“I’m not trying to take anything away from [Mother].”).

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After hearing the evidence, the trial court recessed before reconvening

to place its findings on the record. Id. at 324-32. The court identified and

addressed the 16 factors set forth in section 5328 of the Child Custody Act.

The court stated:

It is extremely clear, from the evidence presented, that both households provide, and will continue to provide and maintain a loving, stable, consistent, and nurturing relationship, adequate for [C]hild’s emotional needs. [C]hild is very clearly bonded with both families, and appears to be happy, healthy, and safe.

Id. at 326-27. However, the court also found the parties had a “high-conflict

relationship” and were “not capable of co-parenting.” Id. at 328.

The trial court took the matter under advisement and entered its

custody order the following week. Order, 11/2/22, at 1-4. The order

specified: “In accordance with the custody factors stated on the record, the

court placing heavy weight on factors #1, 13 and 16, Father shall have sole

legal custody of Child.” Id. at 2. As noted, factor 1 considers which “party is

more likely to encourage and permit frequent and continuing contact between

the child and another party”; factor 13 concerns “the level of conflict between

the parties and the willingness and ability of the parties to cooperate with one

another”; and factor 16 provides for consideration of “any other relevant

factor.” 23 Pa.C.S.A. § 5328(a). In emphasizing these three factors, the trial

court opined: “In an ideal world, parents would work together ….” Trial Court

Opinion, 1/12/23, at 14. We discern no abuse of discretion.

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It is the trial court’s role “as the finder of fact[,] to determine which

factors are most salient and critical in each particular case.” M.J.M., 63 A.3d

at 339. The record demonstrates the trial court “did precisely what it should

have done; it weighed the entirety of the section 5328(a) factors in making

the custody determination and articulated its considerations in a manner that

informed the parties of the reasons for the custody award.” Id. at 336.

Accordingly, Mother’s argument does not merit relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/20/2023

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