R.M.G., Jr. v. F.M.G., No. 908 WDA 2009

• Decision Date: 16 December 2009
• Docket Number: No. 908 WDA 2009
• Citation: 986 A.2d 1234
• Parties: R.M.G., JR., Appellant v. F.M.G., Appellee.
• Court: Pennsylvania Superior Court

986 A.2d 1234

R.M.G., JR., Appellant v. F.M.G., Appellee.

No. 908 WDA 2009

Superior Court of Pennsylvania.

Submitted September 21, 2009.

Filed December 16, 2009.

James J. Geibig, Greensburg, for appellant.

Maureen S. Kroll, North Huntingdon, for appellee.

BEFORE: MUSMANNO, BENDER and CLELAND, JJ.

OPINION BY CLELAND, J.:

¶ 1 R.M.G., Jr. ("Father") appeals from the order entered on May 4, 2009 following a hearing on the petition filed by F.M.G. ("Mother") to modify custody of their two children, S.G. (d.o.b. 2/13/99) and Z.G. (d.o.b. 10/23/00) (collectively "the Children"). Father complains the trial court erred by modifying a May 2008 custody arrangement because Mother did not demonstrate a material change in circumstances. Father also argues the trial court erred or abused its discretion by finding a changed custody arrangement would serve the best interests of the Children. Because a material change in circumstances is not a prerequisite to modification and because we find no abuse of discretion in the trial court's modification of the May 2008 arrangement, we affirm.

¶ 2 The trial court provided the following background information:

[Mother] and [Father] were married in April of 2000 and divorced four years later in 2004. There were two children born of the marriage between [Father] and [Mother], those being [S.G.] and [Z.G.]. After the separation of mother and father, father took up residence in Youngwood, which is located in Westmoreland County, and mother took up residence in Ruffs Dale, which is located a few miles from Youngwood. Prior to the parties['] separation the children attended the Hempfield Area School District and at the time of the separation it was agreed by mother that the children should remain with father in order to complete the school year in the Hempfield Area School District.

Subsequently, mother and father were scheduled for a custody hearing before Master Bruce Tobin in order to determine the appropriate custody arrangements for [the Children].

Even though both parties were represented by attorneys at that point in time,¹ the parties appeared before Master Tobin without counsel and reached an agreement whereby father would retain primary physical custody of the children and mother would permit father to relocate with the children to Altoona in order that he could take up residence with his newly found girlfriend, [C.M.]. Mother at this point in time was living with a gentleman by the name of [M.H.]. Also it should be noted that the parties during the relevant time frames became divorced.

Mother had a previous child to another man and that child's name was [J.S.] and while living with [M.H.], mother had another child named [C.H.]. Both [J.S.] and [C.H.] were siblings of [S.G.] and [Z.G.]. ...

The agreement reached between the parties allowing the father to relocate to Altoona to live with his girlfriend, [C.M.], was uncounseled by either party.

The essence of the agreement was that father would be permitted to move to Altoona and that mother would have periods of partial custody every other weekend with the children and periods of time with the children during the summer.

Trial Court Opinion, 6/24/09, at 2-3 (footnote added). The agreement was memorialized in a custody consent order entered on May 2, 2008.²

¶ 3 Mother filed a petition to modify the May 2008 agreement, seeking enlarged periods of physical custody. Following a hearing conducted on April 23 and May 1, 2009, the trial court issued findings of fact and an order by which Mother and Father continued to share physical and legal custody of the Children. However, the order granted increased periods of physical custody to Mother. The order decreased Father's periods of custody but increased Father's transportation obligations. Father filed this timely appeal. Both Father and the trial court complied with Pa.R.A.P. 1925.

¶ 4 Father presents six issues for our consideration:

I. Whether the Trial Court erred and abused its discretion in concluding that [Mother], in seeking to modify the parties' existing Custody Order dated May 2, 2008, met her burden in demonstrating that a substantial change in circumstances existed to justify the trial Court's reconsideration of the custody disposition?

II. Whether the trial court erred and abused its discretion in finding that the best interest and welfare of the minor children is served by its award of shared physical and legal custody of said minor children to [Mother], as set forth in its Order of Court dated May 1, 2009?

III. Whether the Trial Court erred and abused its discretion in failing to find that the best interest and welfare of the minor children is served by entering an Order confirming the status quo custodial arrangement that has been followed by the parties since the entry of the previous Order of Court dated May 2, 2008, with an award of primary physical custody of the minor children to [Father], and periods of partial physical custody of the minor children to [Mother], on alternate weekends throughout the calendar year?

IV. Whether the Trial Court erred and abused its discretion in failing to give positive consideration to [Father], who has acted as the minor children's primary caretaker in rendering its award of shared physical custody of the minor children to [Mother]?

V. Whether the Trial Court erred and abused its discretion in entering an Order requiring [Father] to bear the majority responsibility of transporting the minor children to and from New Alexandria, PA for custody exchanges without requiring [Mother] to share in said transportation task?

VI. Whether the Trial Court erred and abused its discretion in failing to transfer venue/jurisdiction of the within Custody action to the Court of Common Pleas of Blair County, Pennsylvania?

Father's Brief at 5-6.

¶ 5 Our scope and standard of review of a custody order are as follows:

[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. ... However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. ... Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion.

Bovard v. Baker, 775 A.2d 835, 838 (Pa.Super.2001) (quoting Kaneski v. Kaneski, 413 Pa.Super. 173, 604 A.2d 1075, 1077 (1992)). "Further, as we have stated many times before, the paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual wellbeing." Id. at 838-39 (citations and quotations omitted).

¶ 6 "[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial judge who has had the opportunity to observe the proceedings and demeanor of the witnesses." Billhime v. Billhime, 869 A.2d 1031, 1036 (Pa.Super.2005) (citation omitted).

The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super.2002) (quoting Robinson v. Robinson, 538 Pa. 52, 57, 645 A.2d 836, 838 (1994)).

¶ 7 We first note the trial court issued findings of fact. Our review confirms that those findings are supported by the record. Our role, then, is to determine only whether the trial court's consideration of the best interest of the Children was careful and thorough, and whether we are able to find any abuse of discretion in the trial court's conclusions.

¶ 8 Our reading of the trial court's conclusions announced from the bench (see N.T., 5/1/09, at 35-44) in conjunction with the trial court's opinion confirms that the trial court thoroughly and thoughtfully considered the best interests of the children. Nevertheless, while we find no abuse of discretion warranting our reversal of the trial court's order, we are compelled to note our disagreement with the legal analysis undertaken by the trial court in conjunction with its factual findings. In particular, we find the trial court placed undue weight on Ferdinand v. Ferdinand³ and improperly applied a Gruber⁴ test in the course of its analysis.

¶ 9 Again, the trial court correctly recognized its obligation "to do what is in the children's best interest," Trial Court Opinion, 6/24/09, at 6. The trial court then discussed factors considered in reaching its decision to modify the May 2008 custody order. The trial court explained:

The first thing that this Court is required to consider is whether or not we should separate [S.G.] and [Z.G.] from their siblings [J.S.] and [C.H.]. ... As a result of this [c]ourt's reading of the Ferdinand case, this [c]ourt concluded that as a general rule in Pennsylvania, we do not separate siblings unless there are compelling circumstances in the case to allow that to occur. ... [T]his [c]ourt is very concerned about maintaining a strong ongoing relationship between the siblings. ...

Id. at 6-8. However, Ferdinand is inapposite and the trial court's reliance on it is misplaced.

¶ 10 In Ferdinand, the mother of two children, who were fathered by different men, sought to relocate to Michigan with a third man. The fathers opposed the mother's relocation and each sought primary custody of his respective child. The trial court denied the mother's petition and awarded custody to the children's respective fathers. On...