S.D.G. v. C.A.B.

• Court: Superior Court of Pennsylvania
• Decided: May 13, 2021
• Docket: 1148 WDA 2020
• Status: Unpublished

Opinion

J-A09041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.D.G., F/K/A S.D.D., F/K/A S.D.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : C.A.B. : : Appellant : No. 1148 WDA 2020

Appeal from the Order Dated September 28, 2020 In the Court of Common Pleas of Venango County Civil Division at No(s): 1003-2015

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 13, 2021

C.A.B. (Father) appeals from the order entered in the Court of Common

Pleas of Venango County (trial court) awarding primary physical custody of

the parties’ minor daughter, P.R.B. (Child) to S.D.G. (Mother), subject to his

periods of partial physical custody during school recesses. We affirm.

I.

A.

Mother grew up in Venango County and has resided there for most of

her life. Father is from Cobb County, Georgia, but lived in Venango County

for several years during his adolescence and high school years. Mother and

Father resided together in Venango County and Child was born in May 2014.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A09041-21

The couple married on February 13, 2015, and they immediately moved to

Cobb County with Child. They resided with Father’s grandmother, M.L.

(Paternal Grandmother), in her large home.

In early August 2015, without informing Father of her intentions, Mother

returned to Venango County with Child. On August 19, 2015, Mother filed

divorce and custody actions in the county. Father filed a competing custody

action in Cobb County, but the Georgia court refused to accept jurisdiction and

concluded that venue and jurisdiction were proper in Venango County.

Apparently, no appeal was taken from that order.

On June 3, 2016, the trial court entered an order awarding the parties

joint legal custody of Child and approving Father’s relocation to Georgia.

Father was granted primary physical custody of Child, subject to Mother’s

periods of two consecutive months out of every five months, with each party

exercising custody in their home state. After the order was entered, Mother

lived at different residences with then-boyfriends and family members in and

around Venango County.

On July 24, 2018, Mother filed a petition in Venango County seeking

modification of the custody order. During the custody trial, Father raised the

issue of jurisdiction and venue and on March 5, 2019, the case was transferred

to Butler County, where Mother then resided and continues to reside.

However, Butler County declined to accept transfer of the case, finding that

Father failed to file the requisite preliminary objections challenging jurisdiction

-2- J-A09041-21

and venue. The court also concluded that Butler County is not the home

county of Child and that Child and Mother lacked significant contacts with the

forum. The court stated that Venango County was the appropriate forum and

transferred the case back to the county on August 5, 2019. No appeal was

taken from that order.

When Mother received custody of Child in August 2019 pursuant to an

arrangement she and Father had made before Child entered kindergarten, she

filed emergency petitions in Venango County. Mother sought modification of

the custody order and alleged Father failed to adequately communicate with

her when Child was in his care and that his lax childcare caused Child to

experience severe eczema outbreaks. The trial court heard oral argument on

August 14, 2019, and entered an order directing that Mother retain custody

of Child pending a hearing. After several scheduling issues, the trial court

held a custody trial on September 14-15, 2020.

B.

At trial, Mother testified that she married B.G. (Stepfather) in January

2020 and they live with their children in Butler County. Mother explained that

she is a homemaker and is working towards a bachelor’s degree in Criminal

Justice. Stepfather is employed as a service technician at an automotive

business. The couple began their relationship in 2016 and they have two

daughters together, O.G. (born 9/17) and C.G. (born 6/19). Mother was

pregnant with the couple’s son at the time of the hearing.

-3- J-A09041-21

Mother explained that she and Father followed the initial June 2016

custody schedule alternating consecutive months with Child until August 2019

when Father advised her of his intention to enroll Child in kindergarten at the

same school she had attended pre-school. Mother then sought the emergency

order and Child has resided with her continuously since that time.

Mother testified that Child has struggled with eczema since she was two

years old and that this condition has resolved due to Mother’s use of an

effective product. Mother stated that she and Father “were never on the same

page about [treatment],” and that Father’s method was ineffective, leading to

severe rashes on Child’s legs, arm, neck and ear. (N.T. Trial, 9/14/20, at 24).

Mother also contended that when Child was in Father’s care, she had difficulty

regularly communicating with Child and Father did not timely respond to her

questions regarding school. Mother testified that she filed the emergency

petition out of concern for Child “because she was broke out, her skin was like

sandpaper, [Father’s] form of communication absolutely is horrible, and I

didn’t know where she was. I didn’t know where she was living. I didn’t have

a phone number for her [because] the two phone numbers that he gave me

in this Skype log did not work.” (Id. at 106). Mother acknowledged that

Father did provide her with contact information, but asserted that he gave her

three different home phone numbers in three months and that many of her

phone calls went unanswered.

-4- J-A09041-21

Mother advised that Child attended kindergarten in Butler County and

that she did well academically, loved her teacher and made many friends. At

the time of the hearing, Child had entered first grade as was doing similarly

well. The family resides in a rural neighborhood in a home with a large yard

where Child enjoys playing outside. Mother’s parents live in Venango County

and Mother testified that Child loves them and is excited to see them. Mother’s

sister and mother visit their home on a weekly basis.

Mother described Child and her two half-sisters as “best friends” and

stated that they are inseparable. (Id. at 35). As to Child’s relationship with

Stepfather, Mother testified that it grew closer over time, that he provides for

her, plays with her and “treats her as if she’s his own.” (Id. at 37). Mother

and Stepfather are financially comfortable and able to support the children.

C.

At the time of the hearing, Father had recently married S.B.

(Stepmother) and they have a son together, C.A.B. II, who was born in May

2019. Father is a commercial truck driver and he typically works from 4:00

a.m. through 6:00 p.m., Monday through Friday. Father testified that he has

primarily resided in Grandmother’s home in Cobb County since February 2015,

though he briefly lived at another residence for only a few months during the

summer of 2019.

Father described his communication with Mother as “strained” and

testified that he provided her with his home phone number. (Id. at 195).

-5- J-A09041-21

Father stated that Mother has used the same Skype email address for five

years to communicate with Child and he answered Mother’s phone calls when

he was at home. He did not answer her calls when he was at work, explaining

that “I can’t pick up my phone while operating an eighty thousand pound

vehicle on a highway.” (Id. at 201). Paternal Grandmother and Stepmother

are Child’s caretakers when he is on the road. Father has made Mother aware

of his work schedule and has asked her to contact them directly if he is unable

to take her call. Child generally returned any missed calls from Mother within

one day and Mother’s calls with Child were often lengthy, lasting for over one

hour.

D.

On September 28, 2020, the trial court entered its order awarding

Mother primary physical custody of Child, subject to Father’s partial physical

custody during school summer recess, every Christmas and New Year’s

holiday and school spring recess. Father timely appealed and he and the trial

court complied with Rule 1925. See Pa.R.A.P. 1925(a)(2)(i)-(ii).1

1 When reviewing child custody orders,

our 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 issues 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 firsthand.

-6- J-A09041-21

II.

Father first contends that jurisdiction and venue are improper in

Venango County. Father acknowledges that Venango County was an

appropriate forum at the outset of the action, but contends that this is no

longer the case because Mother does not reside in the county. Father asserts

that Cobb County, Georgia, is instead the appropriate forum because that is

where Child attended pre-school and has extended family and friends.2

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)3

governs issues of child custody jurisdiction arising between Pennsylvania and

the other states of the United States. See J.S. v. R.S.S., 231 A.3d 942, 947

(Pa. Super. 2020). “The UCCJEA also governs questions of child custody

venue arising between the counties of Pennsylvania[.]” Id. (citing 23 Pa.C.S.

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.

M.J.N. v. J.K., 169 A.3d 108, 111–12 (Pa. Super. 2017) (citations omitted).

2 A court’s decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review. See B.A.B. v. J.J.B., 166 A.3d 395, 403 (Pa. Super. 2017).

3 23 Pa.C.S. §§ 5401-5482.

-7- J-A09041-21

§ 5471). If a Pennsylvania trial court with jurisdiction enters an order

awarding custody, the state will retain “exclusive, continuing jurisdiction”

unless or until certain conditions occur. See id. at 948 (citing 23 Pa.C.S.

§ 5422).

Here, Father concedes that Venango County properly exercised

jurisdiction when it made its initial custody determination regarding Child.

Child was born in Venango County, both parties lived there at that time and

Mother grew up in the county and has close familial ties to it.

As to whether Pennsylvania retained exclusive, continuing jurisdiction

after Father exercised physical custody of Child in Georgia, the relevant

section of the UCCJEA provides:

[A] court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) . . . has exclusive, continuing jurisdiction over the determination until: (1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child’s care, protection, training and personal relationships[.]

23 Pa.C.S. § 5422(a)(1) (emphases added).

A review of the record reflects that both Mother and Child have

significant connections with the Commonwealth and that substantial evidence

concerning all aspects of Child’s care are available in Pennsylvania. Moreover,

the trial court in Georgia where Father resides has expressly declined to accept

-8- J-A09041-21

the case and Child’s ties to the Commonwealth have grown while she attended

school and spent time with family and friends in this state.

Insofar as Father challenges venue between counties in Pennsylvania,

Butler County has already declined to accept transfer of the case and it

specifically found that Venango County, where Child was born, is the

appropriate forum. Given that the Georgia court and the Butler County court

have both declined to exercise jurisdiction, Father’s challenges to jurisdiction

and venue in the county in which this action was initiated nearly six years ago

in 2015 merit no relief.

Father next raises related claims challenging the delay in proceedings

for an approximate one-year period from August 3, 2019, until the custody

trial in mid-September 2020. Father points to the trial court’s grant of multiple

continuances, which he characterizes as sua sponte, and its consideration of

Mother’s emergency petition, which he claims was filed in bad faith. These

actions resulted in Father not seeing Child for over one year, without adequate

due process or consideration of Child’s best interests.

We begin by observing that the primary concern in any custody case is

the best interests of the child. In making a custody determination, a trial

court must consider all factors that legitimately have an effect on the child’s

physical, intellectual, moral and spiritual well-being. See M.J.N., supra at

112.

-9- J-A09041-21

Due process is required during custody proceedings and is a flexible

concept, providing for such procedural safeguards as a particular situation

warrants to ensure fundamental fairness to the parties. See E.B. v. D.B.,

209 A.3d 451, 463 (Pa. Super. 2019). “The fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in a

meaningful manner.” Id. (citation omitted).

This Court has recognized that an interim order, although only

temporary, can have a long-term impact in custody cases because of its effect

on the status quo. See id. at 466. This is because stability is typically in a

child’s best interest, and once an interim modification has been made on a

temporary basis, courts are hesitant to change the child’s routine again. See

id.

In this case, the trial court observed that Mother benefited from the one-

year delay in the proceedings because it provided additional time for Child to

bond with Mother, Stepfather and her half-sisters and to acclimate to school.

However, the trial court found that both Father and Mother were responsible

for any delay in the custody trial. The court noted that one of the continuances

was granted at the request of Father’s counsel because of a scheduling

conflict. The court also observed that although Mother’s filings were troubling

in that Father did not violate the terms of the 2016 custody order, “it was

further troubling to this Court that although Father had the ability to press for

earlier resolution of the pending petitions, he did nothing, preferring instead

- 10 - J-A09041-21

to allow Mother time to strengthen her bond with Child.” (Memorandum

Opinion and Order Court, 9/28/20, at 24). The court concluded:

Regardless of the propriety or impropriety of either party’s actions or inactions, the overriding relevant factor is and always will be the best interest of Child. Therefore, based upon the foregoing Findings, it is the conclusion that Child’s best interest is and will be best served by maintaining the current custodial relationship with Mother having primary physical custody and with Father having partial physical custody for extended holidays and summer school recesses, provided nonetheless that the non- custodial parent will be permitted liberal periods of private personal communications with Child.

(Id.). Because the record supports the trial court’s findings with regard to

the delay in the proceedings, Father’s claims do not merit relief.4

Finally, Father contends the trial court erred in failing to allow evidence

relating to unidentified allegations of child abuse while Child was in Mother’s

care.5 Father maintains that although the allegations pre-date the June 2016

4 We note that Father’s argument that the continuances violated Pennsylvania Rule of Civil Procedure 1915.4 also fails. This Rule provides for the prompt disposition of child custody cases and among its requirements is that a trial be scheduled within 180 days of the pertinent filing. See Pa.R.C.P. 1915.4(b). However, the Rule further provides that if the parties fail to comply with certain filing requirements, the trial court may “dismiss the matter unless the court finds that dismissal is not in the best interests of the child.” Id. Instantly, the trial court acknowledged that it could have dismissed Mother’s petitions based on procedural time limits but found that dismissal would not be in Child’s best interests. (See Trial Ct. Op., at 12). We agree with its assessment and discern no abuse of discretion.

5 The admission or exclusion of evidence is within the sound discretion of the trial court and we will reverse its ruling only upon a showing of an abuse of

- 11 - J-A09041-21

custody order, the trial court was nonetheless required to hear testimony

concerning this pertinent custody factor.6

One of the statutory factors a trial court must consider in making a

custody determination is the “present and past abuse committed by a party

or member of the party’s household, whether there 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.” 23 Pa.C.S. § 5328(a)(2)

(listing sixteen factors to consider when awarding custody).

At the beginning of trial, the trial court noted the comprehensive

proceedings held in June 2016 and advised that it was not revisiting any

events that occurred prior to entry of that order. The court, therefore,

restricted the testimony to events after June 2016 and counsel for neither

Mother nor Father objected. (See N.T. Trial, at 15). Although during Mother’s

testimony Father’s counsel briefly made a vague reference to a CYS contact,

he quickly indicated his agreement that the issue had already been decided.

(See id. at 130).

Further, regarding the custody factor relating to instances of past abuse,

the court specifically stated in its opinion that “there is no history of any abuse

discretion or error of law. See Jordan v. Jackson, 876 A.2d 443, 454-55 (Pa. Super. 2005).

6 It appears from the record that the allegations involved Mother’s former boyfriend.

- 12 - J-A09041-21

by either parent or any member of a parent’s household, either physical or

emotional.” (Trial Ct. Op., at 21). Accordingly, the trial court did consider

this factor and properly limited the evidence at trial to events occurring after

entry of the 2016 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/13/2021

- 13 -