HomeMy WebLinkAbout2013-154
CHENAY A. JOHNSON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. 2013-154 CIVIL
:
DERIC S. MANNING, :
Defendant :
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925
Ebert, J., August 6, 2015 –
Chenay A. Johnson (hereinafter “Mother”) appeals this Court’s June 25, 2015,
Order granting both Mother and Deric S. Manning (hereinafter “Father”) equal custody.
Mother specifically complains of the following errors:
1.The Court erred and abused its discretion in modifying the prior custody
order when a custody modification petition had not been filed but instead
only a petition for contempt had been filed.
2. The Court abused its discretion in applying the custody factors found in
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23 Pa.C.S. § 5328 and in determining the best interests of the child.
Statement of Facts and Procedural History
Mother and Father are the parents of one minor child, Genesis Manning
(hereinafter “Child”), born June 11, 2012. Mother originally filed a complaint for custody
and special relief on January 1, 2013. Following conciliation, the parties reached an
agreement and a Custody Order was entered on January 31, 2013 (hereinafter “2013
Order”). The 2013 Order gave Mother primary physical custody with Father having
custody every other weekend during the months of September through May 1. From
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Concise Statement of Errors Complained of on Appeal, filed Jul 24, 2015
May 1 through September 1, the parties were to share custody 50/50 on a week
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on/week off basis.
Prior to the 2013 Order, Mother and Father shared custody as mutually agreed
upon. Earlier in January 2013, before the 2013 Order was entered, Mother relocated to
New Kensington, Pennsylvania. As the courts were not involved, Mother did not seek
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permission to relocate.
Father filed a pro se Petition for Contempt on February 17, 2015. In his petition,
Father alleged that Mother was not giving Child back when it was Father’s time. Father
also requested that he be given primary care of Child in the petition. This Court ordered
the parties to attend a custody conciliation.
The custody conciliation was held on March 19, 2015. Neither party was
represented by counsel at the conciliation. At the conciliation, Father requested that the
parties share custody on an alternating bi-weekly schedule due to the distance between
the parties’ residences. The parties were not able to reach an agreement on custody
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and requested a hearing before the court on outstanding custodial issues. On March
31, 2015, a temporary custody order was entered pending the court hearing on Father’s
Petition for Contempt.
The hearing on Father’s Petition for Contempt was held on June 24, 2015, with
both parties present. Father testified that Mother violated the 2013 Order by refusing
him custodial time and harassing him. Father stated the most recent event occurred on
December 23, 2014, when Mother came to his residence demanding he return Child,
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Order of Court, filed Jan. 31, 2013
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Notes of Testimony, In Re: Hearing on Defendant’s Motion for Contempt, 9, June 24, 2015 (hereinafter
“N.T. at ___”)
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See Custody Conciliation Summary Report, filed March 26, 2015
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even though it was his time. Thereafter, Mother kept Child the entire month of January
and Father did not see Child until February 6, 2015. Father indicated he made contact
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with Mother through text message during January with no response until February 6.
Mother responded by testifying that Father also denied her access to Child and will not
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let her speak to Child on the phone.
It became apparent at the hearing that neither party followed the 2013 Order.
Father and Mother would keep Child for extended periods of time and exchange
custody when it was convenient for them and not when the 2013 Order dictated.
Therefore, Father indicated at the hearing that he wanted the custody order changed to
a two weeks on, two weeks off schedule, because for all practical purposes Mother and
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Father were already sharing time on an equal basis. Father also presented the
testimony of his girlfriend, Angela Small. She testified that she lives with Father along
with her two sons, ages 12 and 5. She stated that Child has a good relationship with
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her sons and they enjoy spending time together. Mother testified she wanted to retain
primary physical custody with Father having custody every other weekend. She
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indicated that the 50/50 custody the parties had over the summertime was not working.
Following the hearing, on June 25, 2015, this Court entered a new custody order
(hereinafter “2015 Order”). The 2015 Order granted shared physical custody to both
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Father and Mother for a two week on, two week off period. Along with the custody
order, this Court also issued an order detailing its analysis of the best interests of Child
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N.T. at 14-16
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N.T. at 31
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N.T. at 19
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N.T. at 25-27
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N.T. at 31
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See Order of Court, filed June 25, 2015
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and discussed the relevant custody factors. The Court based its change in custody on
the following reasons:
1. Both parties are likely to encourage and permit frequent and continuing
contact between the Child and each other.
2. Both parties have adequately performed parental duties for the Child.
3. Inasmuch as the Child is only 3 years old and is not yet enrolled in
school, this is the best time for the parents to share custody equally.
Obviously, once the Child is enrolled in school, given the significant
distance between the parents’ homes, the Child will obviously have to
have primary custody with one of the parents during the school year.
4. The Child does have significant sibling relationships with the Father’s
girlfriend’s two children who live in Father’s home.
5. Both parties are capable of maintain\[ing\] a loving, stable and consistent
and nurturing relationship with the Child.
6. Father resides in Enola, Pennsylvania and Mother in New Kensington,
Pennsylvania which is near Pittsburgh. Given this significant distance
between the parents’ homes, minimizing exchanges will financially benefit
both parents.
7. Both parties have shown their ability to provide for appropriate child
care arrangements when they are working.
8. The level of conflict between Mother and Father is significant. They do
not communicate well. Accordingly, having a set 50/50 schedule
minimizes the amount of communication these parents have to have with
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each other.
Discussion
A trial court’s determination in a custody case is reviewed for an abuse of
discretion. The factual determinations of the trial court will be accepted as long as they
are supported by the evidence. The trial court’s conclusions may be rejected only if
they involve an error of law or are unreasonable in light of its factual findings. S.W.D. v.
S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). When ordering custody, “the best interest
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Order of Court, filed June 25, 2015
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of the child is paramount.” Id. (internal citations omitted). The 16 factors, found in 23
Pa.C.S.A. § 5328(a), must be considered to determine the child’s best interest and
when ordering any form of custody. Id. at 400-01.
A court may not modify a custody order without the filing of a petition for
modification. 23 Pa.C.S.A. § 5338; See P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super.
2012) (citing Langendorfer v. Spearman, 797 A.2d 303, 308 (Pa. Super. 2002). Filing
the proper petition for modification provides notice and an opportunity to be heard for
the custody proceeding. S.W.D., 96 A.3d at 405. It has been held previously “that if
notice of the proceeding adequately advises a party that custody will be at issue, a court
may entertain the request to permanently modify a custody order after hearing in that
proceeding.” Id. at 405-06 (citing Guadagnino v. Montie, 646 A.2d 1257, 1262 (Pa.
Super. 1994) (superseded by statute, 23 Pa.C.S.A. § 5338, however, still relied on by
the Superior Court in S.W.D.)) Resolution of an ancillary matter may also affect a form
of custody and require consideration of the custody factors. S.W.D., 96 A.3d at 403.
In Langendorfer, the mother filed a petition for contempt. After a hearing, the
court granted the mother’s contempt petition and also modified the custody
arrangement, giving the mother sole legal and primary physical custody. The Superior
Court found that the trial court abused its discretion in changing custody because the
mother’s petition for contempt did not implicate custody and the order scheduling the
hearing did not inform the parties that custody would be considered. Additionally, the
Superior Court noted that the transcript of the hearing reveals that only the contempt
petition was before the trial court. Langendorfer, 797 A.2d at 306-09.
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The situation in P.H.D. is similar to Langendorfer. In P.H.D., the mother filed a
petition for contempt. Following the hearing, the trial court dismissed the mother’s
contempt petition and also clarified the previous custody order. On appeal, the Superior
Court found that the trial court’s clarification was essentially a modification. The
Superior Court, therefore, held that the trial court abused its discretion in altering the
custody terms when no petition for modification was filed. P.H.D., 56 A.3d at 706, 708.
In both Langendorfer and P.H.D. the main issue the Superior Court focused on
when reaching their decisions was the issue of notice. The Court focused on the fact
that the parties were only informed a hearing would be held on the contempt petitions,
and were not made aware that the court would be considering custody. In P.H.D. the
Superior Court stated “As in Langendorfer, \[the father\] here had no notice that custody
was at issue. Neither the contempt petition nor the notice and order to appear held out
the prospect of custody modification.” Id. at 708.
The instant situation is distinguishable from both Langendorfer and P.H.D..
Initially, Father’s pro se Petition for Contempt included a paragraph that stated “The
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father wants primary care of the child”. Thereafter, the matter was initially sent to a
custody conciliation, where the parties discussed custody but were unable to reach an
agreement. The conciliation report also details both parties’ positions with regard to
custody of the child. Furthermore, the conciliation report states:
7. As the parties requested a hearing before the Court on the outstanding
custodial issues, the conciliator submits an Order in the form as attached
scheduling a hearing and providing for temporary custodial arrangements
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which were agreed upon by the parties, pending the hearing.
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Petition for Contempt, filed February 17, 2015
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Custody Conciliation Summary Report, filed March 26, 2015.
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Thereafter, the Court hearing was held on June 24, 2015, with both parties having
notice custody would be discussed as they had requested at the conciliation. At the
hearing, both parties were present and offered their positions on custody. Based on the
best interest of Child and after consideration of the custody factors, this Court modified
the prior custody order.
In fact, this matter is more in line with S.W.D.. In that case, the father filed a
petition for special relief to determine where the child could attend school. In his
petition, the father also requested that the trial court enforce the informal change in
custody the parties now practiced. Following hearing, the trial court made a
determination on where the child would attend school. However, the trial court declined
to modify the custody order. On appeal, the Superior Court found that the trial court
would not have abused its discretion if it had modified the parties’ custody order. The
Court reasoned that
while the pleading filed was entitled a “Petition for Special Relief,” thereby
on its face suggesting that temporary relief was being requested, an
examination of the pleading reveals that the pleading was in fact one
whereby \[the father\] was seeking modification to the \[prior\] custody order
by requesting a change in legal and physical custody.
S.W.D., 96 A.3d at 406. As the mother was provided with adequate notice that
modification of custody was at issue, the trial court would have been within its discretion
to modify it. Id.
Here, Father also included a request for a change in custody within his Petition
for Contempt. Therefore, similar to S.W.D., even though the petition Father filed was
not formally entitled “Petition for Modification”, Mother had clear notice that custody was
at issue. Prior to this Court’s hearing, the parties were involved in a conciliation where
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custody was discussed. When an agreement was not reached, the parties requested a
court hearing on the outstanding custodial issues. A temporary custody order was put
in place before the court hearing, further indicating that the parties knew custody was at
issue. There was no error in this Court modifying the custody arrangement after a
consideration of the relevant custody factors and Child’s best interest.
Conclusion
This Court did not err in modifying the parties’ custody order even though a
formally titled “petition for modification” was never filed. Both parties had notice and an
opportunity to be heard on the custody of Child. After hearing and a consideration of
the custody factors, this Court determined that a modification was in Child’s best
interest.
By the Court,
_______________________
M. L. Ebert, Jr., J.
Stacy B. Wolf, Esquire
Attorney for Plaintiff/Mother
John M. Kerr, Esquire
Attorney for Defendant/Father
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