D.D.M. v. N.L.M., 052820 PASUP, 2578 EDA 2019

Docket Nº:2578 EDA 2019
Opinion Judge:BOWES, J.
Party Name:D.D.M. Appelant v. N.L.W.
Judge Panel:BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.
Case Date:May 28, 2020
Court:Superior Court of Pennsylvania
 
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D.D.M. Appelant

v.

N.L.W.

No. 2578 EDA 2019

Superior Court of Pennsylvania

May 28, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered August 20, 2019 In the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2014-FC-1091

BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J. [*]

MEMORANDUM

BOWES, J.

D.D.M ("Father") appeals from the August 20, 2019 child custody order that denied his petition for modification and contempt, granted a competing petition filed by N.L.W. ("Mother"), and awarded Mother primary physical custody and sole legal custody of their approximately seven-year-old son, D.M. We affirm the award of physical custody but vacate the award of sole legal custody.

Mother and Father never married. Following the birth of D.M. in July 2012, the family resided together in Lehigh County, Pennsylvania for roughly nine months before Mother and D.M. moved to a different residence in the county. On August 19, 2014, Father filed a custody complaint, which for our purposes, culminated in a stipulated final custody order entered on July 11, 2018. That order awarded Mother primary physical custody of D.M. and granted Father liberal periods of partial physical custody. The parties shared legal custody.

Thereafter, on January 24, 2019, Mother filed a petition for contempt and modification. She asserted that Father was in contempt of the "spirit and intent" of the custody order, requested that the court reduce Father's periods of physical custody to alternating weekends, and sought to eliminate the requirement for co-parent counseling. Mother's Petition for Modification and Contempt, 1/24/19, at unnumbered 2-3. Mother complained, inter alia, that Father was quarrelsome, indifferent to co-parent counseling, and inattentive to their son's education and health care needs. Id. at unnumbered 3-4. In this vein, the certified record reveals that D.M. experienced behavioral issues symptomatic of Attention Deficit Hyperactivity Disorder ("ADHD"), which necessitated the implementation of an individualized education plan ("IEP").

Father countered one month later with a petition for modification and contempt, wherein he asserted that Mother "routinely modifies and interprets the terms of the agreement unilaterally." Father's Petition for Modification and Contempt, 2/22/19, at 3. He requested, inter alia, primary physical custody and increased access to "medical and educational information[.]" Id.at 4.

Prior to the first of three evidentiary hearings, Mother clarified that she was "seeking sole legal [custody] based on some issues that have occurred . . . since the filings," a position that was consistent with the pretrial statement which was subsequently admitted as Exhibit M-1. N.T., 5/31/19, at 6, 18. However, the court indicated that it would not consider legal custody because, at a previous off-the-record pretrial settlement conference, Mother indicated that legal custody was not at issue. The court reasoned, the custody relief checklist that we use [at the pretrial settlement conference] -- and that's not an official record, but it would be in the . . . court reporter's record of it -- it's clearly [sic] that Mother is agreeable to shared and Father is agreeable to shared, so legal custody cannot be an issue for today. It can be raised in a subsequent pleading. You can come back on that, but you have to have the notice. So that cannot be an issue for today.

Id. at 7. Mother did not amend her petition or raise the request in a subsequent pleading.

On August 19, 2019, the trial court announced in open court its custody decision and, pursuant to § 5323(d) of the Child Custody Law, it delineated its analysis of the best-interest factors enumerated in 23 Pa.C.S. § 5328(a), which we discuss infra. See N.T. Custody Decision, 8/19/19, at 1-8. After addressing each of the statutory factors, the court concluded, Based upon the evidence and these findings, we award primary physical custody to Mother with Father exercising partial custody on alternate weekends and a mid-week dinner visit. Additionally, we find that the primary reason for the poor cooperation and communication between the parties resides with Father. For this reason, although neither...

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