S.A.M. v. S.C.C. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
S.A.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
S.C.C., :
:
Appellant :
:
v. : No. 1422 MDA 2015
:
H.R. :
Appeal from the Order Dated July 20, 2015,
in the Court of Common Pleas of Columbia County
Civil Division at No. 2010-CV-0001570-CU
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 16, 2016
S.C.C. (“Mother”) appeals from the order dated and entered on
July 20, 2015, in the Columbia County Court of Common Pleas, Civil
Division, granting S.A.M. (“Father”) the right to relocate E.M. (“Child”), born
in May of 2008, from Reading, Pennsylvania, to Sweeny, Texas, pursuant to
§ 5337(h) of the Child Custody Act (“the Act”), 23 Pa.C.S.A. § 5337(h). We
affirm.1
* Former Justice specially assigned to the Superior Court.
1
H.R. is the Maternal Grandmother and was granted leave to intervene in
October 2014 by the trial court. She did not file a separate notice of appeal
but has filed a brief as appellee, to which Father was granted permission to
respond.
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The relevant facts and procedural history of this case are as follows.
Mother and Father are the biological parents of Child. They never married
and separated within a week or two after Child’s birth in May 2008. (Trial
court opinion, 8/21/15 at 3.) Father resides in a two-bedroom apartment in
Reading, Berks County, Pennsylvania. (Id. at 2.) He is employed by
Aramark and makes a modest income. (Id. at 3.) Mother resides with her
boyfriend of two years in a residential area in Berwick, Columbia County,
Pennsylvania. (Id.) During the week, she works eight to ten hours for a
private cleaning service, and on Saturday or Sunday, she works a 12-hour
shift at Wise Foods. (Id.)
Mother has two other minor children, M.G. and M.C. (together,
“Half-Siblings”). (Id.) M.G.’s father is incarcerated in Maryland. (Id.)
M.C.’s father lives in Berwick but has never had any contact with M.C. (Id.)
Neither father pays child support. (Id.) Half-Siblings reside with Maternal
Grandmother, who lives approximately two blocks away from Mother. (Id.)
This custody matter began on August 26, 2010, when Father filed a
complaint for custody, seeking primary physical custody of Child. On
November 15, 2010, the trial court issued an order, awarding primary
physical and legal custody of Child to Mother and partial physical custody of
Child to Father. On April 7, 2011, the trial court modified the existing order,
awarding primary physical custody of Child to Mother, splitting legal custody
between the parents, and granting Father periods of partial physical custody
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to take place every other weekend, on designated holidays, and each
summer for one week. On June 3, 2011, Father filed exceptions to the
custody arrangement. On February 2, 2012, the trial court modified the
existing order, increasing Father’s partial physical custody of Child during
the summer to a period of four weeks.
In August 2013, Mother began experiencing “emotional” problems,
which she and Maternal Grandmother characterized as depression. (Id. at
4.) Consequently, thereafter Child began living primarily at Maternal
Grandmother’s residence. (Id.) In light of these events, on August 21,
2013, Father filed a petition for special relief, seeking primary physical
custody of Child. On September 17, 2013, the trial court issued an order,
effectively reversing the existing custody arrangement such that Father
obtained primary physical custody of Child while Mother was given partial
physical custody to take place every other weekend, on designated holidays,
and each summer for a period of four weeks. Further, the order specifically
granted Maternal Grandmother the right to exercise Mother’s custody rights
if Mother could or would not do so. (Id.) Subsequently, Child began living
with Father in Reading. (Id.)
On September 16, 2014, Maternal Grandmother filed a petition to
intervene pursuant to Pa.R.C.P. 2327, and on October 16, 2014, the trial
court granted Maternal Grandmother leave to intervene. On October 21,
2014, Maternal Grandmother filed a petition to modify custody, seeking
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partial physical custody of Child. In her petition, Maternal Grandmother
argued that she stood in loco parentis to Child, averring that, at the time
the September 17, 2013 order was entered, Child had been residing at her
residence for a period in excess of three months and that she had assumed
and was fulfilling the role of Child’s parent. (Maternal grandmother’s petition
for modification, 10/21/14 at 2 (unpaginated).) On February 20, 2015, the
trial court issued an order, effectively entitling Maternal Grandmother to
Mother’s custody rights. (Trial court opinion, 8/21/15 at 4.) On March 13,
2015, Father filed exceptions to the trial court’s ruling.
On May 13, 2015, Father filed a notice of proposed relocation, seeking
the right to relocate Child from Reading to Sweeny, Texas, his hometown.
Father stated that the reason for the proposed relocation was so that he and
Child could be near his family, which encompasses his parents, a brother
and two sisters, multiple nieces and nephews, grandparents, and
great-grandparents, almost all of whom live within a 30-mile radius of
Sweeny. (Id. at 5.) On May 15, 2015, Maternal Grandmother filed a
counter-affidavit to the proposed relocation. On May 20, 2015, Mother filed
a notice of intention to reassert custody/visitation rights, and then, on
May 29, 2015, she, too, filed a counter-affidavit to the proposed relocation.
On July 15, 2015, the trial court held a hearing on Father’s exceptions
and notice of proposed relocation, and Mother’s notice of intention to
reassert custody/visitation rights. At the hearing, Mother, Father, and
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Maternal Grandmother each testified on his or her own behalf. R.M.
(“Paternal Grandfather”) also testified in support of Father. On July 20,
2015, the trial court issued the underlying order, awarding primary physical
and legal custody of Child to Father and granting Father the right to relocate
Child to Sweeny. The trial court’s order also awarded Maternal Grandmother
shared legal custody of Child during her periods of partial physical custody in
the summer, on Christmas, and during spring break, and granted Mother
partial physical custody, as to be agreed upon between her and Maternal
Grandmother. On August 10, 2015, Mother filed a timely notice of appeal
but failed to simultaneously file a concise statement of errors complained of
on appeal, in contravention of Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter,
on August 20, 2015, Mother filed a concise statement of errors complained
of on appeal.2
On appeal, Mother raises six issues for our review:
1. Did the trial court commit an error of law in
failing to take into consideration the bond
between [Child] and [Half-Siblings]?
2. Did the trial court commit an error of law in
failing to consider the bond between the
maternal family and [Child], which will be
broken due to the granting of the relocation
petition allowing [Child] to move to Texas?
2
Although Mother failed to comply with Pa.R.A.P. 1925(a)(2)(i) and (b),
relating to children’s fast track appeals, we decline to dismiss or quash her
appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa.Super. 2009). Here,
Mother filed her Rule 1925(b) statement 19 days after filing the notice of
appeal.
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3. Did the trial court commit an error of law in
failing to consider the fact that [Father] was
not involved in [Child’s] life during the early
portion of [Child’s] life?
4. Did the trial court commit an error of law in
failing to consider the abuse of [Father]
towards one of [Half-Siblings]?
5. Did the trial court commit an error of law in
failing to take into consideration the safety of
[Child] while relocating to Texas?
6. Did the trial court commit an error of law and
abuse of discretion in determining that it would
be in the best interest of [Child] to move to
Texas with [Father] to be closer to [Father’s]
family when the testimony indicated that
[Father’s] family[,] while centralized in
Texas[,] had not lived there in the last 18
months?
Mother’s brief at 4.
Intervenor, H.R., has filed a brief raising the issues that Father has not
met his burden as to relocation and the trial court failed to properly weigh
the factors enumerated in 23 Pa.C.S.A. § 5337.
Initially, we observe that, as the custody relocation hearing in this
matter was held on July 15, 2015, the Act, 23 Pa.C.S.A. §§ 5321-5340, is
applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super 2012) (holding
that, if the custody evidentiary proceeding commences on or after the
effective date of the Act, i.e., January 24, 2011, the provisions of the Act
apply).
In custody cases, our scope and standard of review is as follows:
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In reviewing a custody order, our scope
is of the broadest type and our standard is
abuse of discretion. We must accept findings
of the trial court that are supported by
competent evidence of record, as our role does
not include making independent factual
determinations. In addition, with regard to
issues of credibility and weight of the evidence,
we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s
deductions or inferences from its factual
findings. Ultimately, the test is whether the
trial court’s conclusions are unreasonable as
shown by the evidence of record. We may
reject the conclusions of the trial court only if
they involve an error of law, or are
unreasonable in light of the sustainable
findings of the trial court.
Id. at 443 (citation omitted).
We have stated:
[t]he discretion that a trial court employs in
custody matters should be accorded the
utmost respect, given the special nature of the
proceeding and the lasting impact the result
will have on the lives of the parties concerned.
Indeed, the knowledge gained by a trial court
in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate
court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).
Further, with any custody case decided under the Act, the paramount
concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338.
“This standard requires a case-by-case assessment of all the factors that
may legitimately affect the physical, intellectual, moral and spiritual
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well-being of the child.” M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super.
2013) (citation omitted).
A modification of an existing custody may take place if relocation is at
issue.
If a counter-affidavit regarding relocation is filed with
the court which indicates the nonrelocating party
objects either to the proposed relocation or to the
modification of the custody order consistent with the
proposal for revised custody schedule, the court shall
modify the existing custody order only after holding
a hearing to establish the terms and conditions of
the order pursuant to the relocation indicating the
rights, if any, of the nonrelocating parties.
23 Pa.C.S.A. § 5337(f).
Following the hearing, if relocation is permitted, the court shall modify
any existing custody order or set forth terms and conditions of any new
order. 23 Pa.C.S.A. § 5337(g).
Section 5337(h) of the Act, 23 Pa.C.S.A. § 5337(h), sets forth the ten
relocation factors that a trial court must consider when ruling on a relocation
petition:
(h) Relocation factors.--In determining whether
to grant a proposed relocation, the court shall
consider the following factors, giving weighted
consideration to those factors which affect the
safety of the child:
(1) The nature, quality, extent of
involvement and duration of the
child’s relationship with the party
proposing to relocate and with the
nonrelocating party, siblings and
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other significant persons in the
child’s life.
(2) The age, developmental stage,
needs of the child and the likely
impact the relocation will have on
the child’s physical, educational
and emotional development, taking
into consideration any special
needs of the child.
(3) The feasibility of preserving the
relationship between the
nonrelocating party and the child
through suitable custody
arrangements, considering the
logistics and financial
circumstances of the parties.
(4) The child’s preference, taking into
consideration the age and maturity
of the child.
(5) Whether there is an established
pattern of conduct of either party
to promote or thwart the
relationship of the child and the
other party.
(6) Whether the relocation will
enhance the general quality of life
for the party seeking the
relocation, including, but not
limited to, financial or emotional
benefit or educational opportunity.
(7) Whether the relocation will
enhance the general quality of life
for the child, including, but not
limited to, financial or emotional
benefit or educational opportunity.
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(8) The reasons and motivation of
each party for seeking or opposing
the relocation.
(9) The present and past abuse
committed by a party or member
of the party’s household and
whether there is a continued risk of
harm to the child or an abused
party.
(10) Any other factor affecting the best
interest of the child.
23 Pa.C.S.A. § 5337(h). Additionally, “as the party proposing relocation,
[Father] bears the burden of proving relocation will serve [Child’s] best
interests.” S.J.S. v. M.J.S., 76 A.3d 541, 551 (Pa.Super. 2013), citing
23 Pa.C.S.A. 5337(i).
In her brief on appeal, Mother argues that the trial court abused its
discretion in finding that Father satisfied his burden of proof that Child’s
relocation from Reading to Sweeny would serve Child’s best interest under
§ 5337(h). As to § 5337(h)(1), Mother contends that the trial court failed to
accord sufficient weight to the bond between Child and Half-Siblings and to
the detrimental impact that severing said bond will have on Child, which,
Mother asserts, would be the unavoidable consequence of Child’s relocation.
(Mother’s brief at 13-14.) Regarding § 5337(h)(7), Mother disputes the trial
court’s apparent supposition that Father’s reuniting with his family in Texas
will enhance Child’s general quality of life. Rather, she suggests that
Paternal Grandfather’s testimony that he works nationwide as an electrician
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and has not been back to Texas in the last 18 months is indicative of what
little family support there will be available for Father and Child in Sweeny.
(Id. at 14.) Finally, with respect to § 5337(h)(9), Mother alleges that Father
bit M.G.’s face in a fit of rage and argues that the trial court did not give
adequate consideration to the continuing risk of harm which Father presents
to Child. (Id. at 15.) We disagree.3
Here, the trial court found the following with regard to the relocation
factors:
“(1) The nature, quality, extent of involvement
and duration of the child’s relationship with the
party proposing to relocate and with the
nonrelocating party, siblings and other
significant persons in the child’s life.”
This weighs in favor of Father. He has had primary
custody of [Child] for the last two years and has
been the caring and nurturing parent. Prior to that
time, he traveled almost two hours each way every
other weekend, regularly and faithfully, to exercise
his custody rights. When Father is not working he is
with [Child] all the time. His bond with [Child] is
seemingly strong. Mother has had minimal
involvement for the last two years. It is hard to say
how strong the bond is since for the last two years
she has seen [Child] on some weekends. [Maternal
Grandmother] has been very involved with [Child]
3
We note that Mother did not challenge the lack of a discussion of the
16 custody/best interests factors under § 5328(a) in the trial court’s opinion.
She has, therefore, waived that challenge. See Krebs v. United Refining
Company of Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (holding
that an appellant waives issues that are not raised in both his or her concise
statement of errors complained of on appeal and the statement of questions
involved in his or her brief on appeal). We additionally note that Father has
had primary custody of Child since September 2013. He retains primary
custody in his relocation to Texas.
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over the years, as a helper and surrogate for Mother
and as a grandmother. During the last two years,
she has been with [Child] every other weekend,
some holidays, and time in the summer. [Child] has
a bond with and has been in regular contact with
[Half-Siblings]. They appear to get along well.
[M.G.] is three grades (fifth grade) ahead of him and
[M.C.] is two grades (kindergarten) behind him.
During the last two (2) years, their contact with
[Child] has been only during Mother’s custody
periods of every other weekend, etc.
“(2) The age, developmental stage, needs of
the child and the likely impact the relocation
will have on the child’s physical, educational
and emotional development, taking into
consideration any special needs of the child.”
[Child] is seven years old and entering second grade.
Father clearly is the proper party to have primary
physical custody. Father’s family is in Texas. That
family appears to be solid, well[-]educated,
hardworking, and family[-]oriented. If Father stays
in Reading, he likely will not have the opportunities
and support systems that he will clearly have in
Texas. Those support systems will be there for
[Child] as well. At his age, [Child] needs stability
and support from many people. That stability is
simply not available in Berwick with Mother and
[Maternal Grandmother].
“(3) The feasibility of preserving the
relationship between the nonrelocating party
and the child through suitable custody
arrangements, considering the logistics and
financial circumstances of the parties.”
Mother has had very irregular contact with
[Child] for two years. She sees him in conjunction
with [Maternal Grandmother’s] custodial periods.
She texts [Child] and has regular phone contact, as
does [Maternal Grandmother]. Relocation will not
affect Mother’s relationship with [Child] with an
appropriate schedule. [Maternal Grandmother’s]
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relationship is secondary to Father’s rights and
relationship.
Presumption in cases concerning primary
physical custody.
(a) Between parents.—In any action
regarding the custody of the child
between the parents of the child,
there shall be no presumption that
custody should be awarded to a
particular parent.
(b) Between a parent and third
party.—In any action regarding the
custody of the child between a
parent of the child and a
nonparent, there shall be a
presumption that custody shall be
awarded to the parent. The
presumption in favor of the parent
may be rebutted by clear and
convincing evidence.
(c) Between third parties.—In any
action regarding the custody of the
child between a nonparent and
another nonparent, there shall be
no presumption that custody
should be awarded to a particular
party.
23 Pa.C.S.[A]. § 5327.
Although it is acknowledged that she may have
rights of partial custody, we must recognize the
parent’s rights to raise the child. Presently,
[Maternal Grandmother] (and Mother to a lesser
degree) see [Child] every other weekend, some
holidays, and four weeks in the summer. The
master was inclined to reduce this time. [The trial
court] agrees. A schedule including most of the
summer, Christmas vacation, spring break if
possible, and fact time twice each week and phone
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calls regularly will maintain consistent and frequent
contact allowing for continuing the relationship
[Child] has with [Maternal Grandmother] and
Mother, which is limited. The distance and cost is of
some concern. However, [the trial court] would
envision cost being minimized by meeting halfway
driving for summer exchanges and the same or a
plane at Christmas and in the spring. Mother and
[Maternal Grandmother] can afford to help with costs
with a part-time job. Father should be able to earn
more, particularly if he moves.
“(4) The child’s preference, taking into
consideration the age and maturity of the
child.”
[Child] is too young to express a reasoned
preference.
“(5) Whether there is an established pattern of
conduct of either party to promote or thwart
the relationship of the child and the other
party.”
None of the parties exhibit a significant pattern
of conduct promoting or thwarting the relationship of
the parties with [Child]. However, Father has been
relatively cooperative. He has been regular with his
partial custody and, now, full custody. It does not
appear that he wants to thwart the relationship of
[Child] with [Mother] and/or [Maternal
Grandmother]. Mother does not appear to want to
thwart the relationship of [Child] with Father.
[Maternal Grandmother] has been cool toward Father
and does not promote [Child’s] relationship with
Father. However, [Maternal Grandmother] has just
become less encouraging of the relationship of
Father with [Child], although this may be because of
this scheduled hearing and Father’s intent to
relocate.
“(6) Whether the relocation will enhance the
general quality of life for the party seeking the
relocation, including, but not limited to,
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financial or emotional benefit or educational
opportunity.”
The relocation will indeed enhance Father’s
quality of life. He will be home with a strong,
hardworking extended family. He will have at least
the same job opportunity and likely better
opportunities. He may be able to transfer within his
own company to Texas and/or secure a better paying
job. He will have family to help day-to-day with
[Child]. It is extraordinarily understandable why he
desires to move back to his family and his roots.
“(7) Whether the relocation will enhance the
general quality of life for the child, including,
but not limited to, financial or emotional
benefit or educational opportunity.”
This is the most important point. Father is
intending to take this opportunity to move back to
his [hometown] where he has family support.
Importantly, that support will be there for [Child]
also. The [trial court] saw the [Paternal
Grandfather] testify. He is a hardworking solid man.
He has led a hard life providing for himself and his
family. He has a large house with plenty of room for
[Child]. The school is nearby. He has nieces and
nephews of a similar age nearby. Father is clearly
the parent who can raise [Child] now. The relocation
clearly enhances Father’s chance for a better life,
and thus, affords more opportunities for [Child].
Father has [Child] enrolled in Cub Scouts and a
YMCA camp in Pennsylvania. Those opportunities or
similar one[s] will exist in Texas, although within the
warmth of an extended family.
“(8) The reasons and motivation of each party
for seeking or opposing the relocation.”
Father is moving to his hometown to be near
his family. He has no family in Pennsylvania,
besides [Child]. He is not moving to spite Mother or
[Maternal Grandmother]. That is clear. Mother and
[Maternal Grandmother] are opposing relocation
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because they love [Child] and want to see him every
other weekend during the school year. Once again,
[the trial court] concurs with the master that
[Maternal Grandmother’s] custody schedule should
be reduced in deference to Father[‘s] preferred right
and obligation to be the nurturing party. Mother has
not credibly reasserted her rights. She intends to
see [Child] more frequently in the future or to get
custody. But her plans are ephemeral and wishful.
“(9) The present and past abuse committed by
a party or member of the party’s household and
whether there is a continued risk of harm to
the child or an abused party.”
This was a murky area in the testimony.
Mother alleged abuse of her and [M.G.] over five
years ago. There was no documentary evidence.
These facts were not a factor prohibiting custody or
limiting custody at the hearing in September 2013,
or at the hearing of February 2015. These
allegations were not raised before the master either
time. Mother and [Maternal Grandmother] are still
not saying that Father’s custody should be limited or
supervised because of alleged past abuse. These is
no evidence of a continued risk of harm to [Child].
“(10) Any other factor affecting the best
interest of the child.”
[The trial court] has heard from the family that
[Child] would be living with in Texas, i.e., Father and
[Paternal Grandfather]. The [trial court] does not
know the people he would be around in Berwick,
except for [Half-Siblings]. Although there is strong
consideration given to keeping siblings together, or
in this case half-siblings, this factor is one of many.
Moreover, he is now with [Half-Siblings] every other
weekend, not all the time. With this relocation
order, he will be with [Half-Siblings] more in the
summer and more at Christmas. He will be having
face time online with them weekly. In addition,
although [Half-Siblings] are of a similar age, [Child]
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also has cousins in Texas of a similar age with whom
he can bond.
Trial court opinion, 8/21/15 at 9-16.
After a careful review of the certified record, the trial court’s opinion,
the briefs on appeal, and the relevant law, we conclude that the trial court’s
findings are supported by clear and convincing, competent, and sufficient
evidence. As such, we discern no abuse of discretion or error of law in its
reasoning or decision, and find that it was appropriate for the trial court to
determine that Father met his burden of proving that Child’s relocation from
Reading, Pennsylvania, to Sweeny, Texas, would serve Child’s best interest
under 23 Pa.C.S.A. § 5337(h).
Accordingly, for the reasons state above, we affirm the trial court’s
order, granting Father the right to relocate Child from Reading,
Pennsylvania, to Sweeny, Texas, pursuant to 23 Pa.C.S.A. § 5337(h).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2016
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