S.M.E. v. R.J.E.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2016
• Docket: 1937 EDA 2015
• Status: Unpublished

Opinion

J-S11045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.M.E. IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

R.J.E.

No. 1937 EDA 2015

Appeal from the Order entered June 2, 2015 in the Court of Common Pleas of Philadelphia County, Family Court Division, at No. OC1002022

BEFORE: FORD ELLIOTT, P.J.E, OTT and MUSMANNO, JJ.

JUDGMENT ORDER BY MUSMANNO, J.: FILED APRIL 29, 2016

S.M.E. (“Mother”) appeals from the Order entered on June 2, 2015,

which amended the Custody Order entered on August 25, 2014.1 We vacate

and remand for the preparation of a new order and opinion.

In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for purposes of this appeal. See Trial

Court Opinion, 7/30/15, at 1-3. On June 2, 2015, following a hearing, the

trial court entered an Order amending the August 25, 2014 Custody Order.

The June 2, 2015 Order essentially denied Mother’s Petition for Modification,

as the Order did not include the custodial changes requested by Mother in

1 The Custody Order pertains to the three minor children of Mother and R.J.E. (“Father”): R.E., III (born 11/9/00); J.E. (born 4/15/04); and R.E. (born 4/11/11) (hereinafter “Children”). J-S11045-16

her Petition. Mother filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b)

Concise Statement of Errors Complained of on Appeal. Thereafter, the trial

court issued its Opinion, pursuant to Pa.R.A.P. 1925(a).

On appeal, Mother raises the following issues for our review:

1. Whether the trial court erred in refusing to modify the Custody Order to allow Mother to care for her [C]hildren during fifty-two (52) overnights per year when Mother is available and Father leaves [C]hildren with a baby-sitter due to his work schedule[?]

2. Whether the trial court violated Mother’s fundamental constitutional parenting rights by depriving her of [C]hildren during fifty-two (52) overnights per year and entrusting [C]hildren to a third party who was not a party to the custody litigation[?]

Mother’s Brief at 3.

In any custody case decided under the Child Custody Act (“the Act”),2

the paramount concern is the best interests of the child. See 23 Pa.C.S.A.

§§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial

court may modify a custody order if it serves the best interests of the child.

23 Pa.C.S.A. § 5338; see also E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa.

Super. 2011). Section 5328(a) sets forth a list of sixteen factors that the

trial court must consider when making a “best interests of the child” analysis

for a custody determination. See 23 Pa.C.S.A. § 5328(a).

2 See 23 Pa.C.S.A. §§ 5321 et seq. Because the custody trial was held in June 2015, the Act applies to this case. See C.R.F. v. S.E.F., 45 A.3d at 445 (holding that, if the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply). -2- J-S11045-16

Moreover, section 5323(d) mandates that, when the trial court awards

custody, it “shall delineate the reasons for its decision on the record in open

court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d) (emphasis

supplied). Mere recitation of the statute and consideration of the section

5328(a) factors en masse is insufficient. See S.W.D. v. S.A.R., 96 A.3d

396, 400 (Pa. Super. 2014). A trial court’s failure to place its reasoning

regarding the section 5328(a) factors on the record or in a written opinion is

an error of law. See id.

In its Opinion, the trial court states that it discussed the section

5328(a) factors at the hearing. See Trial Court Opinion, 7/30/15, at 3

(referencing N.T., 6/2/15, at 52-56). Our review of the hearing transcript

discloses that, while the trial court did address some of the section 5328(a)

factors at the hearing, it did not address all of them. See 23 Pa.C.S.A.

§ 5323(d). Further, our review of the record discloses that the trial court did

not address all of the section 5328(a) factors in a written opinion or order.

See id.

Accordingly, we must vacate the trial court’s June 2, 2015 Order and

remand this matter for the preparation of a new order and opinion compliant

with section 5323(d). Upon remand, the trial court is directed to issue a

new order and opinion within thirty days of the date of this Order.

Order vacated. Case remanded for further proceedings consistent with

this Order. Jurisdiction retained.

-3- J-S11045-16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/2016

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