Merryman, L. v. Dubrock, D.

Citation: Not availableDocket: 1473 WDA 2021

Court: Superior Court of Pennsylvania; September 13, 2022; Pennsylvania; State Appellate Court

Original Court Document: View Document

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Lorraine Patrick (Mother) and Andrew Patrick (Stepfather) appealed a custody order from the Court of Common Pleas of Armstrong County, which granted them shared legal custody and primary physical custody of their five-year-old daughter, P.N.D., while allowing Daniel Dubrock (Father) partial physical custody. The appeal argues that the trial court did not adequately consider the factors outlined in 23 Pa.C.S.A. 5328(a). The parties initially co-parented without formal arrangements until a dispute over the child's school choice prompted Mother to file for primary custody in April 2021. An interim order was issued in July 2021 allowing the child to attend school in Mother’s district and establishing a custody schedule for Father. After a custody hearing on November 5, 2021, the court confirmed the interim schedule, allowing Father custody on specific weekends and Wednesday evenings during the school year, with an increased custody time during summer months. Despite seemingly achieving their goals, Mother and Stepfather appealed, questioning the trial court’s adherence to statutory factors. Procedurally, although they initially failed to file a concise statement of errors, they complied after being directed by the court, preserving their appeal without prejudice claims.

The statement of the question in the Brief submitted by Mother and Stepfather does not align with their argument. They claim the trial court erred due to unsupported findings, yet their argument shifts to the court's failure to consider a statutory factor (Section 5328(a)(15)) and inadequate findings per Section 5323(d). A non-compliant brief under Pennsylvania Rules of Appellate Procedure may lead to a quashed or dismissed appeal, but the court does not find waiver in this instance, as the issues raised are sufficiently suggested by the question. The court emphasizes the need for adherence to appellate rules but acknowledges that the Brief is adequate for review.

Regarding the appeal's merits, the court outlines its broad scope and abuse of discretion standard in custody matters. It must accept the trial court's findings supported by competent evidence and defer to the trial judge on issues of credibility. The court is not bound by the trial court's inferences but may reject its conclusions if they are unreasonable or involve legal errors. The Child Custody Act mandates that the court consider all relevant factors affecting a child's safety, delineating its reasons for custody decisions either in court or through a written opinion. This reasoning must occur at or near the decision time to avoid ambiguity for potential appeals. While there is no specified detail required in the court's explanation, all relevant factors must be considered, and the trial court has discretion over the weight given to evidence. Appellate review is limited unless there is a clear abuse of discretion; however, if a trial court neglects a Section 5328(a) factor, a remand may be warranted for further findings.

The trial court provided a detailed analysis under Section 5328(a) when issuing the custody order. Key considerations included:

1. **Encouragement of Contact**: Both parents facilitate frequent contact with the child; however, there were instances where the mother did not respond to FaceTime calls, although she cited issues with cell service.
   
2. **History of Abuse**: There was no evidence of past abuse or ongoing risk to the child, nor any involvement with child protective services.

3. **Parental Duties**: Both parents, along with the step-parents, actively fulfill parental duties. The mother and stepfather ensure the child maintains her routines, while the father and stepmother also provide care, including cooking and bathing.

4. **Stability and Continuity**: The child attends kindergarten with her older brother, participates in extracurricular activities, and is involved in community programs.

5. **Extended Family Availability**: The child's extended family includes her older brother living with the mother and stepfather, as well as local relatives on the stepfather's side. The mother has family in New York and plans to visit them.

6. **Sibling Relationships**: The child shares a strong bond with her older brother, relying on him for comfort, such as needing to say goodnight before sleeping.

7. **Child's Preference**: The court did not consider the child's preference due to her young age.

8. **Parental Influence**: There was no evidence of either parent attempting to alienate the child from the other.

9. **Nurturing Relationships**: Both parents exhibit love and care for the child, with no evidence indicating that one parent is more capable of providing a nurturing environment than the other.

10. **Daily Needs**: Both parents adequately attend to the child's physical, emotional, developmental, educational, and special needs while she is in their care. 

Overall, the court found no significant differences between the parents regarding their ability to care for the child.

The parties involved in the custody arrangement reside approximately thirty minutes apart, with Mother and Stepfather living in Templeton and Father in Sligo, Pennsylvania. Both parties are capable of caring for the child, with Mother working standard hours while Stepfather ensures the children are ready for school. They utilize family support when needed and have daycare arrangements during summer months. The level of conflict between the parties is low, characterized by cooperative behavior during custody exchanges, demonstrating effective communication for the child's best interests. 

In terms of substance abuse, Stepmother had a prior charge for possession of marijuana but is currently not in any legal trouble. The child has no diagnosed mental or physical conditions and is engaged in social development programs. The court determined that both parties deeply care for the child and are committed to maintaining a cooperative relationship for her benefit. Consequently, the court awarded shared legal custody, with Mother and Stepfather having primary physical custody during the school year, while the child will spend equal time with both parents in summer.

On appeal, Mother and Stepfather argue that the court failed to consider the mental and physical conditions of the parties and their households as required under Section 5328(a)(15) and did not provide clarity on how it weighed the factors in its decision. Mother asserted her stability, while Stepfather described himself as mentally and physically strong due to his military background. No information was presented about the mental or physical health of the child’s older brother or the Father and Stepmother. The court focused on the child's condition, which was reported to be normal.

Counsel for Mother and Stepfather did not cross-examine Father or Stepmother regarding their mental or physical conditions. The trial court expressed satisfaction with the custody case, affirming that the Child was safe in both households and that both parents were qualified. Although the court addressed Section 5328(a)(15) concerning the Child's welfare, it did not specifically evaluate the parties' or stepparents' conditions. There was no indication of error or abuse of discretion, as the court's conclusion suggested that these factors were largely irrelevant. Mother and Stepfather made no allegations of unfitness against Father or Stepmother during the hearing or on appeal, nor did they provide evidence challenging the court's decision regarding their suitability as caregivers.

The trial court's findings under Section 5328(a)(15) were deemed minimal but sufficient, indicating that both parties and stepparents were suitable. The analysis under Section 5323(d) was also found adequate, as the court's reasoning for custody arrangements was clear. The court awarded shared legal and physical custody, emphasizing that the Child should attend school near Mother's home, making shared physical custody impractical due to commuting distances. The decision also considered the Child's close relationship with her older brother. Father was granted substantial visitation, including three weekends and one weekday evening per week, allowing for an ongoing relationship with the Child. The court's delineation of factors and rationale was sufficient, and there was no basis for remanding the case for further proceedings.

A violation of legal standards does not warrant an outright reversal of the trial court's decision but rather a remand for further analysis. The trial court could have provided a clearer Section 5328(a) analysis, specifying how each factor weighed in favor of either parent. However, since the trial court's consideration of the child's best interests was thorough, appellate intervention is not justified. The record supports the award of primary physical custody to Mother and Stepfather, which was their initial request. Additionally, the trial court has significant discretion regarding Father's partial custody, and no grounds exist for denying or limiting it. Thus, there is no abuse of discretion, and the order is affirmed. Judgment was entered on 09/13/2022.