Smith v. Confer

• Decision Date: 03 May 2023
• Docket Number: 1003 WDA 2022,J-A06004-23
• Parties: JASMINE SMITH v. DUANE CONFER, II Appellant
• Court: Pennsylvania Superior Court

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JASMINE SMITH v. DUANE CONFER, II Appellant

No. 1003 WDA 2022

No. J-A06004-23

Superior Court of Pennsylvania

May 3, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Dated August 3, 2022 In the Court of Common Pleas of Mercer County Civil Division at No(s): No. 2013-1424

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

OLSON J.

Appellant Duane Confer, II ("Father"), appeals from the order entered on August 3, 2022, in the Court of Common Pleas of Mercer County, that modified an existing custody order.^[1] After careful review, we affirm.

The record reveals that Mother lives in Roanoke, Texas with her boyfriend, S.A. ("Boyfriend"). N.T., 7/18/2022, at 87-88. She has resided in Texas since October 2019 when she moved there for work. Id. She works full-time as a sales manager. GAL Report, 3/22/2022, at 2.

Father resides in Hermitage, Pennsylvania. N.T., 7/19/2022, at 8. He is medically retired from the Marine Corps. Id. at 15. Father's paramour works as a caseworker for Children and Youth Services in Lawrence County. N.T., 7/18/2022, at 205. She does not live with Father and Child but, on occasion, stays overnight. Id. at 212.

Mother initiated this matter when she filed a divorce complaint in May 2013. At that time, Mother and Father (collectively, "Parents") resided in Hermitage, Pennsylvania. Thereafter, in August 2013, Mother filed a petition for primary physical custody of Child, then five years old.

Interim orders dated November 5, 2013, and February 13, 2014, awarded Mother primary physical custody, Father partial physical custody, and Parents shared legal custody. Subsequently, Father filed a petition to modify custody in March 2015, and by stipulated order dated August 4, 2016, the trial court awarded Parents shared legal and physical custody, inter alia. Specifically, during the school year, the court awarded shared physical custody pursuant to a two-two-three custody arrangement. This arrangement involves a two-week, repeating schedule wherein the child spends two days with one parent, the next two days with the other parent, then three days with the first parent. The schedule switches the following week and repeats thereafter.

During the summer, the stipulated order awarded Father physical custody every week from Monday at 7:30 a.m. until Thursday at 5:00 p.m. Mother then exercised custody from Thursday at 5:00 p.m. until Friday morning at 7:30 a.m. Father then had custody from Friday at 7:30 a.m. until Mother's workday concluded on Friday. Finally, the order awarded Mother custody from Friday after her workday concluded until the following Monday at 7:30 a.m.

On August 15, 2019, Mother filed a petition for modification, averring that she was relocating to Dallas, Texas because of her job and requesting that she be awarded partial physical custody. Specifically, Mother requested custody during Child's school breaks. On August 22, 2019, Father filed a petition for emergency relief requesting primary physical custody of Child. After a custody conference, by order dated October 28, 2019, the court issued an interim order awarding Father primary physical custody, and Mother partial physical custody one weekend a month in Pennsylvania, Thanksgiving break, and half of Christmas break. The order also provided that Mother was to file a notice of relocation within ten days of the date of the order.

Mother filed a notice of relocation and an amended petition to modify on November 12, 2019, wherein she requested primary physical custody of Child. Thereafter, by stipulated order dated March 13, 2020 ("existing custody order"), the trial court awarded Parents shared legal custody, Father primary physical custody, and Mother partial physical custody. Specifically, the court awarded Mother partial physical custody during Thanksgiving break, half of the winter/Christmas break, spring break, during the summer from July 1 until one week prior to the start of school, and one period per month of up to four days if she is in the Mercer County area.

On January 27, 2022, Mother filed a petition for modification of the existing custody order, wherein she again requested primary physical custody. Hearings occurred on July 18, 19, and 21, 2022. Mother testified in her case-in-chief and presented the testimony of Boyfriend. Father appeared pro se. He testified in his case-in-chief, and presented the testimony of his paramour, S.S. Finally, Mother testified on rebuttal, and she presented the testimony of Autumn Johnson, Esquire, the guardian ad litem ("GAL").

The court conducted an in camera interview of Child in the presence of the GAL. Child was fourteen years old and about to start eighth grade. N.T., 7/18/2022, at 10. Child did not provide the court with a clear preference, but he discussed his life in Pennsylvania and the many connections he has with friends, the school system, and Boy Scouts. Id. at 30-31. Child further testified that, while in Mother's custody in Texas, he has attended a football camp, an excursion camp,^[2] played laser tag, and lifted weights. Id. at 19-20.

Child also stated that, in October 2021, he hurt his finger while playing football, and it required surgery. Id. at 13. In addition, Child was on, as best can be discerned, his school's wrestling team. Child testified that, against his surgeon's instructions to not wrestle for the rest of the season, in February 2022, he and Father decided that his finger had adequately healed for him to wrestle in "a couple of" tournaments. Id. at 13-15; Mother's Exhibit 4, Letter from Surgeon. Child also testified that Father tells him about the custody litigation including, but not limited to, the GAL's reports. N.T., 7/18/2022, at 21.

The GAL filed two reports dated March 22, 2022, and July 12, 2022, in which she changed her recommendations, as follows. In the March 22, 2022 report, the GAL recommended that primary physical custody remain with Father.^[3] GAL Report, 3/22/2022, at 3. However, after an April 7, 2022 pre-trial conference, the trial court ordered the GAL to obtain Child's medical records for the last five years. Thereafter, the GAL re-interviewed Mother, Child, and Boyfriend on July 10, 2022. GAL Report, 7/12/2022, at 2. The GAL stated that she learned Father allowed Child to wrestle despite not being cleared by his surgeon and, further, Father encouraged Child to lie and say that he was cleared to resume wrestling. Id. The GAL also stated that Father allowed Child to read her March 22, 2022 report, as well as court filings by Mother. Id. at 3. Finally, the GAL stated that she believes Child will have the same opportunities for sports and academics in Texas as he has in Pennsylvania. Id. at 4. Accordingly, the GAL recommended that the court award Mother primary physical custody. Id.

By order entered August 3, 2022, which was accompanied by an opinion dated August 5, 2022, the trial court awarded Mother primary physical custody, and Father partial physical custody during Thanksgiving break, half of Child's winter break, and during the summer from the end of the school year until July 22 every year. The order also provided Parents shared legal custody. Thereafter, on September 1, 2022, Father, through counsel, timely filed a notice of appeal.^[4] The trial court filed a Rule 1925(a) opinion on September 23, 2022.

Father presents the following issues for review:

1. Did the honorable trial court err and abuse its discretion by radically changing primary physical custody to Mother, contrary to the long held custody status quo and well-reasoned preference of [Child], who is by every objective indication from music, academics, friendships, and athletics, excelling and thriving while historically living with Father in Hermitage, Pennsylvania and attending Hickory School District?

2. Did the honorable trial court err and abuse its discretion by radically changing primary physical custody to Mother, contrary to the initial recommendation of the [GAL] made on March 22, 2022 stating that Father should be primary physical custodian?

3. Did the honorable trial court err and abuse its discretion by radically changing primary physical custody to Mother and failing to accurately apply 23 Pa.C.S.[A. §] 5328, the 16 relevant custody factors, to the facts of this case? The court sent the minor child across the country against his preference and contrary to the status quo to live in North Richland Hills, Texas, away from his routines, family, Father, friends, activities and way of life.

Father's Brief at 8-9 (suggested answer omitted).

We review Father's issues according to the following scope and standard of review:

[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.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009), quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001). Moreover,

[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.

The parties cannot dictate the amount of weight the trial court places on evidence. Rather,

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