A.D.W. v. F.W., Jr. ( 2017 )

J-A04030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.D.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
F.W., JR.
Appellee No. 2792 EDA 2016
Appeal from the Order Entered August 3, 2016
In the Court of Common Pleas of Lehigh County
Domestic Relations at No(s): 2014-FC-0538
BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED MAY 04, 2017
Appellant, A.D.W. (“Mother”) appeals from a custody order regarding
her children, M.C.W. (born 2005) and T.P.W. (born 2008) (collectively
“Children”). Mother contends the court abused its discretion and committed
an error of law in denying her motion to relocate the primary residence of
her and the Children from Pennsylvania to South Carolina. Mother also
challenges the decision to change the custody arrangements from Mother
having primary custody to both Mother and F.W., Jr. (“Father”) having
shared physical custody, because Father withdrew his petition to modify the
custody arrangement. We affirm.
We adopt the facts as set forth by the trial court:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A04030-17
Mother informed Father in writing of her intention to
move with [Children], to Moore, South Carolina. Pursuant
to Pa.R.C.P. 1915.17 and 23 Pa.C.S.A. § 5337(c), on
January 15, 2016[,] Mother served Father with notice of
relocation within sixty days of her anticipated move,
April 2, 2016. She provided information about the location
and her proposed modified custody agreement. Her
temporary new address at the home of Maternal
Grandmother would be . . . , Moore, South Carolina 29369.
She identified the school that the children will be attending
....
Mother explained that she was moving because
Maternal Grandmother, age 68, semi-retired with health
issues, had moved to Moore, South Carolina, and is in
need of Mother’s physical assistance. She added that
there will not be any remaining family for Mother in
Pennsylvania. Most importantly, Mother expounded upon
her inability to financially support herself in the Lehigh
Valley as the result of two events that will occur in the fall
of 2016. Pursuant to the Property Settlement Agreement
signed by the parties and filed December 21, 2015 in the
divorce action, Mother is required to refinance the
mortgage on her residence, the marital home, in order to
remove Father from mortgage liability.[1] The Property
Settlement Agreement also provides that the term of
alimony payments to Mother from Husband terminates in
December of 2016. As a consequence, Mother explained
that she will have to sell the home, move from the
residence where she and the children have lived for four
years. Mother’s income from her part-time employment is
insufficient to qualify for refinancing of the mortgage. She
proposed that in South Carolina, she will be financially able
to support the children where the cost of living is less than
in the Lehigh Valley. She purported that the lower cost of
____________________________________________
1
The agreement did not require the sale of the marital residence. Rather,
the agreement provided that if Mother was unable to assume sole
responsibility for the mortgage and release Father from any obligation to pay
the mortgage within nine months from the date of the agreement, then the
marital residence would be listed for sale. Settlement Agreement, 12/21/15,
at 10.
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living will create a stable financial environment for her to
support the children.
Her proposed custodial schedule is as follows. Mother
and Father shall share legal custody; sole physical custody
shall be vested in Mother. Father shall exercise six
uninterrupted weeks of visitation in the summer beginning
immediately after the close of school, during which time he
will celebrate his son’s birthday, Memorial Day, and
Father’s Day with the Children. Father will also have one
week of custody over the Christmas break from school. In
addition, he will have either a week of custody over Spring
Break or the majority of Thanksgiving break, depending
upon whether the year is ‘even’ or ‘odd.’
Father objected to the relocation and to the
modification of the custody schedule set forth in the
agreed order of March 26, 2015. On February 10, 2016,
he filed a Counter Affidavit regarding relocation and a
Petition for Modification. In response, Mother filed an
Answer and New Matter on March 16, 2016 requesting that
the Court grant her relocation as per the terms of her
notice. On April 5, 2016, Father filed his Answer to
Mother’s New Matter. A custody conference was held in
May 2016 and thereafter the matter was listed for trial;
trial commenced July 8, 2016 during which an attempt was
made to interview the Children. The interview was
cancelled; the Court found that both children exhibited
substantial anxiety in the Court’s presence in response to
preliminary attempts to discuss the family. The Court was
advised that the Children were also upset in anticipation of
coming into court. On or before July 14, 2016, both
parties submitted briefs; the matter was taken under
advisement. An Order for custody was filed on August [3],
2016; this is the opinion in support of that order.
. . . Mother has not been straightforward in her notice to
Father in setting forth her motives for the move. In
addition to those reasons identified in the notice, the
testimony at trial revealed that Mother had other motives
for relocating not revealed in her writing. Mother planned
to move to maternal grandmother’s home and upon the
termination of her alimony, marry her fiancé. Her fiancé is
a longtime friend and a South Carolina resident who lives
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just ten miles from maternal grandmother’s home. Mother
and witnesses on her behalf testified that the close
proximity of the Mother’s proposed South Carolina home
and that of Fiancé was not planned; the Court found this to
be disingenuous on Mother’s part and discourteous to all
involved.
* * *
Mother and Father were married January 21, 2003; they
lived at Mother’s home, . . . , Hellertown, Pennsylvania,
until May 2012. In 2012, they purchased the marital
residence, . . . , in Emmaus, where the family resided
together until separation in April 2014 when Father left the
home. Mother and the Children have continued to reside
at the marital residence. The residence is currently under
an agreement of sale. The divorce was finalized in January
2016. . . .
Mother is . . . age 39. She has been employed part-
time as a Salon Coordinator . . . in Bethlehem,
Pennsylvania for several years. She works Tuesday thru
Saturday for 30 hours a week. Her monthly income is
approximately $1,000. She is a graduate of Georgia
Southern University with a bachelor’s degree in Hotel and
Restaurant Management with a minor in Business
Administration. After graduation she was employed in her
field at Hilton Head Island, SC. She moved to
Pennsylvania and purchased a home. She has previously
been employed in a beauty salon, Chili’s Grill & Bar, and
LA Weight Loss Centers, before taking her current job.
She has been actively involved in organizing a successful
fund raising event each year since maternal grandfather’s
death due to pancreatic cancer.
Father is . . . age 39. Since separation in April 2014,
Father has resided at . . . , Allentown, the home of retired
paternal grandparents, . . . . The home is located in the
Allentown School District.[2] Father is a veteran, an Army
____________________________________________
2
According to the trial court, the Allentown School District “falls short of the
quality of education at other suburban school districts,” which includes the
Children’s present school district. Trial Ct. Op., 8/8/16, at 10.
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Reservist, and was deployed to Iraq and Kosovo. He is
employed as a software implementation engineer . . . since
2007. He works 8 AM until 5 PM Monday thru Friday, and
on Tuesday and Thursday he works from home.
The divorce complaint was filed by Mother on April 24,
2014[,] ten days after Father vacated the marital
residence. Since separation, Mother has been the primary
caretaker of the Children in the marital residence. In
December 2014, Mother became engaged to [Fiancé] who
has been her friend since high school; they reconnected on
Facebook in 2008. Mother and Fiancé have been in a
relationship since spring of 2014. Around that same time,
the Children met him and, later, in the summer, they
vacationed with him and his two children.
On or about this same time, Fiancé, who was residing in
North Carolina at that time, had decided to move to South
Carolina to be closer to his own children who had relocated
with their mother, Fiancé’s ex-wife, to Spartanburg, South
Carolina. In December 2014, Mother decided to move to
South Carolina. Within a month, Fiancé applied for a job in
the Spartanburg, South Carolina area and he listed his
North Carolina home for sale. After completing his South
Carolina educational certification necessary for
employment in his field, Fiancé moved from North Carolina
in July 2015 to Duncan, South Carolina, approximately
fifteen miles from his children. He is employed as an
Assistant Principal at the Carver Middle School.
In April 2015 after Mother’s decision to move to South
Carolina, . . . Maternal Grandmother[] listed her
Pennsylvania home for sale, as she, too, had decided to
move to South Carolina. In the fall of 2015, Maternal
Grandmother purchased [a home in] Moore, South
Carolina, the residence to which Mother seeks to relocate.
The home is located ten miles from the home of [Fiancé].
Maternal Grandmother, age 68, chose South Carolina
allegedly due to its climate and its affordability. She has
no relatives in South Carolina; the closest relative is two
hours away in Georgia. Maternal Grandmother[] is a
cancer survivor, has [chronic obstructive pulmonary
disease], arthritis, and carcinoma in her lungs that is in
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remission. She is semi-retired and works on-line with a
company out of Emmaus, Pennsylvania.
In the meantime, the parties entered into a final
custody agreement on March 26, 2015, such that Mother
has primary custody of the Children and that Father has
periods of partial custody on alternating weekends Friday
until Sunday and on alternating Saturdays 10 AM until
3:00 PM and every Tuesday and Thursday 4:30 PM until
7:00 PM. Essentially, Father has contact with the Children
no less than every two days.
On December 21, 2015, an agreement was reached
regarding the division of the marital property. The parties
agreed that Mother could keep possession of the marital
home and that she would remove Father’s name from the
mortgage no later than September 2016. In addition,
Father agreed to pay alimony, $714 monthly, until
December 2016. After the alimony payments cease at the
end of 2016, Mother, who is only employed part-time, will
be unable to financially support the marital residence as
her home or refinance the mortgage. Mother has chosen
to work part time. She has sought employment at one
location in the Lehigh Valley. She did not look for full time
employment because she was going to relocate to South
Carolina.
In January 2016, the parties were divorced and
thereafter, Mother provided Father with notice of her
intention to move to Moore, South Carolina, approximately
670 miles from Allentown, or a ten hour drive. In March
and in April 2016, Mother and the Children spent the
weekend with Fiancé at his home in South Carolina. In
May 2016, Fiancé was held in contempt in his own custody
case, having spent the night with an unmarried woman,
Mother, with his kids and the Children. At the hearing[,]
he testified that they were engaged since December 2014.
The [marriage] date is set for December 2016, after the
termination of alimony.
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Trial Ct. Op., 8/8/16, at 1-8 (footnotes and citations omitted).3
As noted above, Father filed a petition for modification, seeking a
change from Mother having primary physical custody to both parents sharing
physical custody. Father’s Pet. to Modify Custody, 2/10/16, at ¶ 12
(unpaginated). Following a pre-trial conference in June, Father withdrew his
petition for modification on July 8, 2016, the day of trial. Final Order,
8/3/16, at 1 n.1. Prior to the start of trial, the court and the parties’ counsel
discussed whether the issue of custody was properly before the court:
The court: Where does that leave us?
[Father’s counsel]: With just the relocation matter.
* * *
[Mother’s counsel]: I’m not sure that that leaves us with
just the relocation matter, but if he withdraws it, I guess
that’s the only thing pending before the court for purposes
of this hearing. But there’s no issue with respect to
primary physical custody residing in my client, even after
this hearing concludes; because there’s no -- there’s no
issue before the Court with respect to a change of custody
as was in this petition to modify. So I believe that that
resolves the issue with respect to whether or not there will
be any change in the physical custody. There is joint legal
custody between the parties, but my client has primary
physical, and [Father] has partial physical [custody].
* * *
____________________________________________
3
The opinion is timestamped as “filed” on August 5th, and copies were
mailed that same day; but the docket reflects that the opinion was docketed
on August 8th.
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The court: It begs the question that if her relocation
request would be denied, and she moves nevertheless,
then the Court would have to rule on some kind of
schedule.
[Mother’s counsel]: If there’s nothing before the court.
Am I wrong about that?
The court: No, but that’s an absurd result. Her case opens
the door.
[Mother’s counsel]: [Father’s] withdrawing the petition.
* * *
The court: I don’t understand why you’re withdrawing it.
[Father’s counsel]: At the pre-trial conference [held in
June], Your Honor noted that you would not grant
[Father’s] petition [to modify custody] on a hypothetical,
that hypothetical being [Father] obtaining an address in
the children’s school district as he currently lives with his
parents [in the Allentown School District]. Given the short
time between then and now, he was not able to obtain a
residence even though he has done the leg work and is
preparing to do so. So at this time in deference to the
Court, we would respectfully request to withdraw without
prejudice.
[Mother’s counsel]: I, too, recall that being said by Your
Honor. But even after having heard that said, when I
received notice from [Father’s counsel that] he was
withdrawing his petition, I called him to ascertain why he
was doing that. I wanted to be certain of the reason for
doing that. He has no place to—the children—well, strike
that.
The court: So is there room at his parents’ house for the
children to live?
[Father’s counsel]: Certainly, but it is in the Allentown
School District.
The court: So it would be a change in the school district.
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[Father’s counsel]: And the marital home was listed for
sale the day before the pre-trial conference, which gave us
very little time to figure out the logistics. We thought the
most prudent course of action would be to withdraw as per
your statements.
The court: So mother sells the house. We don’t know that
she will remain in the same school district.
[Father’s counsel]: That’s correct.
The court: Everything is in the air here for this family. I
think that, you know, your filing this action today
opens the door for the court to modify [the] custody
arrangement, and not to simply deny relocation. And
you disagree with me on that?
[Father’s counsel]: Agree completely.
The court: You agree?
[Father’s counsel]: Yes.
The court: All right. Well, are we ready to proceed?
[Mother’s counsel]: I am, Your Honor.
R.R. at 108a-09a (emphasis added).4 Mother’s counsel did not object.
At the hearing, Mother testified that she had to move out of the
marital home because she could not refinance the mortgage due to an
insufficient income. N.T. Hr’g, 7/8/16, at 44. Mother testified that she
looked for a three-bedroom home in the Lehigh Valley, but could not afford
any. Id. at 46. She reiterated her intention to move in with Maternal
____________________________________________
4
We cite to the reproduced record for the parties’ convenience.
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Grandmother in South Carolina. Mother opined that she found it difficult to
apply for jobs in either state because she did not know how or when the
court would rule on the relocation petition. Id. at 164-65. After the
hearing, Mother advised the court that the marital home was under an
agreement of sale. Ex. 1 to Trial Ct. Op., 10/4/16 (e-mail dated July 14,
2016, from Mother’s counsel to trial court and Father’s counsel).
The trial court denied Mother’s petition to relocate on August 3, 2016.
The court also modified the custody arrangement such that Mother no longer
had primary physical custody; rather, the parties shared physical custody
equally.5 Among other things, the order stated that the Children’s residence
should not be changed to the extent it would “disrupt the custodial
schedule.” Final Order, 8/3/16, at 7.
Mother timely appealed. She raises the following issues:
Whether the trial court erred as a matter of law and
abused its discretion when it denied Mother’s Request for
Relocation where she met her burden of proving that the
move is in the best interests of the children, where she
met her burden of establishing the integrity of her motive
in seeking relocation, and when proper consideration is
given to the factors enumerated in 23 Pa.C.S.A. § 5337(h)
and 23 Pa.C.S.A. § 5328(a)?
Whether the trial court erred as a matter of law and
abused its discretion when it modified a custody order
____________________________________________
5
Mother would exercise physical custody over the Children from Sunday
through Tuesday, Father would exercise custody from Tuesday to Thursday,
and then the parties would alternate having custody from Thursday to
Sunday. Final Order, 8/3/16, at 2.
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pursuant to 23 Pa.C.S.A. § 5338(a), despite [Father’s]
withdrawal of his petition for modification prior to the trial
proceeding; in the absence of another pending petition or
another claim for modification by either party; where
[Mother’s] relocation request was the only claim of either
party before the court for disposition; and where
[Mother’s] request for relocation was denied?
Mother’s Brief at 9.
We summarize Mother’s arguments with respect to both of her issues:
Mother challenges the court’s weighing of the relocation factors under 23
Pa.C.S. § 5337(h)(1), (2), (3), (6), and (7), as well as the custody factors
under 23 Pa.C.S. § 5328(a)(3), (4), (9), (10), and (12). Mother’s Brief at
21. Mother contends the court erred by concluding that she could have
obtained full-time employment and refinanced the mortgage, and thus would
not have needed to sell the parties’ former marital residence. She says that
the parties’ property settlement agreement required the sale of the home.6
The court, Mother claims, also improperly weighed her desire to live with her
fiancé because she omitted that fact from her notice of relocation.
Mother also objects to the court’s decision to modify the Children’s
custody order even though Father withdrew his petition to modify custody on
the day of the hearing. She claims that she was unaware that modification
____________________________________________
6
As noted above, the parties’ agreement did not unconditionally require the
sale of the marital residence. Rather, under the agreement, Mother was
required to assume sole responsibility for the mortgage within nine months.
Only if that condition was not met would the residence be listed for sale.
Settlement Agreement at 10.
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would still be at issue if relocation was denied and claims she lacked notice
of that issue. Mother argues the court erred by sua sponte transferring
primary custody from Mother to a 50/50 shared custody.
We begin by acknowledging our scope and standard of review in
custody cases:
We review the trial court’s custody order for an abuse of
discretion. We defer to the trial court’s factual findings
that are supported by the record and its credibility
determinations. However, we are not bound by the trial
court’s deductions or inferences, nor are we constrained to
adopt a finding that cannot be sustained with competent
evidence. In sum, this Court will accept the trial court’s
conclusion unless it is tantamount to legal error or
unreasonable in light of the factual findings.
The primary concern in any custody case is the best
interests of the child. The best-interests standard, decided
on a case-by-case basis, considers all factors which
legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual well-being.
D.K.D. v. A.L.C., 141 A.3d 566, 571-72 (Pa. Super. 2016) (quotation marks
and citations omitted), appeal denied, No. 330 WAL 2016, 2016 WL
6462545 (Pa. 2016).
When considering whether to grant relocation, the court must analyze
the ten factors set forth in the relocation provision of the Custody Act, 23
Pa.C.S. § 5337:
(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:
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(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.
(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.
(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.
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23 Pa.C.S. § 5337(h).
When considering a change of custody, the court must consider the
factors listed in Section 5338(a) of the Custody Act, 23 Pa.C.S. § 5338(a).
Mother challenges the court’s consideration of the following of these factors:
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
* * *
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
* * *
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
23 Pa.C.S. § 5328(a)(3)-(4), (9)-(10), (12).
After careful consideration of the record, the parties’ briefs, and the
decisions of the Honorable Michele A. Varricchio, we agree with the decision
to deny relocation and to change custody on the basis of the trial court’s
decisions. See Trial Ct. Op., 10/4/16, at 3-21;7 Trial Ct. Op., 8/8/16, at 8-
____________________________________________
7
The opinion was timestamped as filed on September 30, 2016. The
docket, however, states the opinion was docketed on October 4, 2016, and
copies were mailed to counsel on October 3, 2016.
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17 (discussing, in detail, the relevant factors regarding relocation and shared
physical custody).8
We hold that the trial court did not err in considering the custody issue
even though Father had withdrawn his petition to change the custody
arrangement. As the trial court held, the parties had notice that the custody
issue was before the court prior to the last-minute withdrawal of Father’s
petition, and both parties introduced evidence regarding the relevant
custody issues, as well as relocation, during the hearing. See Trial Ct. Op.,
10/4/16, at 8-10. We add that Mother’s counsel acquiesced to a potential
custody modification by not objecting to the court’s observation that the
parties’ custody arrangements were open to modification. Mother knew that
even if her relocation petition was denied, she still would have to move to a
new home because the marital home was under an agreement of sale, and,
depending on the location of her new residence, a new arrangement for
custody might be required. See Ex. 1 to Trial Ct. Op., 10/4/16 (e-mail
regarding agreement of sale). We do not fault the trial court for electing to
____________________________________________
8
Somewhat confusingly, the trial court stated that “At the time of the [July
8, 2016] relocation hearing, the marital home was under contract for sale.”
Trial Ct. Op., 10/4/16, at 5. The court then cited an e-mail dated July 14,
2016 — after the hearing — from Mother’s counsel that advised the court
that the home was under an agreement of sale. Id. The court’s error,
however, is immaterial, as the court made its first ruling on August 5, 2016,
after both the hearing and the e-mail. We also note that on page five of the
trial court’s October 4, 2016 opinion, and page eleven of the trial court’s
August 5, 2016 opinion, the citation to Hugo v. Hugo should be: 430 A.2d
1183 (Pa. Super. 1981).
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address the parties’ custodial arrangements because of the uncertainty
about where the Children would reside due to the court’s denial of Mother’s
petition to relocate. So long as “the parties had notice that custody would
be at issue, the court is permitted to modify custody without a pending
petition for modification.” C.A.J. v. D.S.M., 136 A.3d 504, 509 (Pa. Super.
2016).
Given the trial court’s thorough consideration of the record and our
deferential standard of review regarding credibility and weighing of the
relevant factors, we cannot conclude, based on this cold record, that the trial
court’s findings are unreasonable. See D.K.D., 141 A.3d at 571-72.
Accordingly, we affirm the order below. The parties are instructed to include
the attached trial court opinions in any filings referencing this Court’s
decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2017
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Circulated 04/10/2017 04:40 PM
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION
A6e AlliW Din Willafr
Plaintiff
) No. 2014-FC-0538)
vs. ) CUSTODY
F WM" JR., ) ASSIGNED TO:
Defendant ) The Honorable Michele A. Varricchio
Appearances:
John J. Zettlemoyer, Jr., Esquire
For Plaintiff
Daniel E. Taglioli, Esquire
For Defendant
********
MEMORANDUM OPINION
MICHELE A. VARRICCHIO, Judge
Mother informed Father in writing of her intention to move with the minor children,
111111mraw age 7, and 41181111 W age 11, to Moore, South Carolina.
Pursuant to Pa.R.C.P. 1915.17 and 23 Pa.C.S.A.§5337(c), on January 15, 2016 Mother served
Father with notice of relocation within sixty days of her anticipated move, April 2, 2016. She
provided information about the location and her proposed modified custody agreement. Her
temporary new address at the home of Maternal Grandmother would be
Moore, South Carolina 29369. She identified the school that the children will be attending as
Elementary School in
1
Mother explained that she was moving because Maternal Grandmother, age 68, semi-
retired with health issues, had moved to Moore, South Carolina, and is in need of Mother's
physical assistance. She added that there will not be any remaining family for Mother in
Pennsylvania. Most importantly, Mother expounded upon her inability to financially support
herself in the Lehigh Valley as the result of two events that will occur in the fall of 2016.
Pursuant to the Property Settlement Agreement signed by the parties and filed December
21, 2015 in the divorce action, Mother is required to refinance the mortgage on her residence, the
marital home, in order to remove Father from mortgage liability. The Property Settlement
Agreement also provides that the term of alimony payments to Mother from Husband terminates
in December of 2016. As a consequence, Mother explained that she will have to sell the home,
move from the residence where she and the children have lived for four years. Mother's income
from her part-time employment is insufficient to qualify for refinancing of the mortgage. She
proposed that in South Carolina, she will be financially able to support the children where the
cost of living is less than in the Lehigh Valley. She purported that the lower cost of living will
create a stable financial environment for her to support the children.
Her proposed custodial schedule is as follows. Mother and Father shall share legal
custody; sole physical custody shall be vested in Mother. Father shall exercise six uninterrupted
weeks of visitation in the summer beginning immediately after the close of school, during which
time he will celebrate his son's birthday, Memorial Day, and Father's Day with the Children.
Father will also have one week of custody over the Christmas break from school. In addition, he
will have either a week of custody over Spring Break or the majority of Thanksgiving break,
depending upon whether the year is 'even' or 'odd.'
2
set forth
Father objected to the relocation and to the modification of the custody schedule
a Counter Affidavit
in the agreed order of March 26, 2015. On February 10, 2016, he filed
an Answer and
regarding relocation and a Petition for Modification.' In response, Mother filed
as per the terms of
New Matter on March 16, 2016 requesting that the Court grant her relocation
A custody
her notice. On April 5, 2016, Father filed his Answer to Mother's New Matter.
trial; trial commenced
conference was held in May 2016 and thereafter the matter was listed for
The interview was
July 8, 2016 during which an attempt was made to interview the Children.
the Court's
cancelled; the Court found that both children exhibited substantial anxiety in
was advised that
presence in response to preliminary attempts to discuss the family. The Court
July 14, 2016,
the Children were also upset in anticipation of coming into court. On or before
both parties submitted briefs; the matter was taken under advisement. An
Order for custody was
filed on August 2, 2016; this is the opinion in support of that order.
interest of
Mother carries the burden of establishing that the relocation will serve the best
the Children as shown under the relocation factors. 23 Pa.C.S.A. § 5337(i)(1). Mother also has
23 Pa.C.S.A.
the burden of establishing the integrity of her motives in seeking the relocation.
§
seeking to prevent
5337(i)(2). Father has the burden of establishing the integrity of his motive in
in setting forth her
the relocation. Id. Mother has not been straightforward in her notice to Father
the testimony at trial
motives for the move. In addition to those reasons identified in the notice,
Mother
revealed that Mother had other motives for relocating not revealed in her writing.
planned to move to maternal grandmother's home and upon the termination
of her alimony,
who lives just ten
marry her fiancé. Her fiancé is a longtime friend and a South Carolina resident
At the time of trial, Father withdrew his Petition to Modify.
3
miles from maternal grandmother's home. Mother and witnesses on her behalf testified that the
close proximity of the Mother's proposed South Carolina home and that of Fiancé was not
planned; the Court found this to be disingenuous on Mother's part and discourteous to all
involved. 23 Pa.C.S.A. § 5337(h)(8).
Nevertheless, our focus in deciding this case is not the equity of the parties, but rather,
the best interests of the Children. The best interests of the Children are the paramount
consideration in a custody proceeding. A. V. v. S.T., 87 A.3d 818, 822 (Pa.Super. 2014); S.J.S. v.
MJ.S., 76 A.3d 541, 548 (Pa.Super. 2013). The determination of best interests must be done on
a case -by -case basis, based upon a "consideration of all factors that legitimately affect the
children's physical, intellectual, moral and spiritual well-being." McAlister v. McAlister, 747
A.2d 390, 391 (Pa. Super. 2000). The case at hand involves the relocation of the Children.
Mother has the burden of establishing that the relocation will serve the best interest of the
Children. 23 Pa.C.S.A. § 5337. For the reasons set forth below, Mother has not met her burden.
This Court rejects the proposed relocation. Mother is precluded from relocating to South
Carolina with the Children.
In that Father filed a counter-affidavit regarding relocation which indicated that he
objects to the proposed relocation or to the modification of the custody order consistent with the
proposal for revised custody schedule, the court determined the terms and conditions of the terms
of custody and entered an order for shared physical custody. 23 Pa.C.S.A. § 5337 (f)
Facts
Mother and Father were married January 21, 2003; they lived at Mother's home,
2012. In 2012, they purchased the marital
41111111, Hellertown, Pennsylvania, until May
4
separation in
residence, 1111111.111111, in Emmaus, where the family resided together until
reside at the
April 2014 when Father left the home. Mother and the Children have continued to
divorce was
marital residence. The residence is currently under an agreement of sale. The
finalized in January 2016. During the marriage two children were born, imp am,
born June 22, 2005, and italla wilt born October
27, 2008.
Mother is AD age 39. She has been employed part-time as a Salon
Coordinator at in Bethlehem, Pennsylvania for several years. She works
$1,000. She
Tuesday thru Saturday for 30 hours a week. Her monthly income is approximately
is a graduate of Georgia Southern University with a bachelor's degree in Hotel and Restaurant
employed in
Management with a minor in Business Administration. After graduation she was
a home. She has
her field at Hilton Head Island, SC. She moved to Pennsylvania and purchased
Loss Centers,
previously been employed in a beauty salon, Chili's Grill & Bar, and LA Weight
fund
before taking her current job. She has been actively involved in organizing a successful
raising event each year since maternal grandfather's death due to pancreatic cancer.
Father is Fe V Jr., age 39. Since separation in April 2014, Father has resided at
, Allentown, the home of retired paternal grandparents, Fall, Sr.,
and mit wr. The home is located in the Allentown School District. Father is a veteran,
as a software
an Army Reservist, and was deployed to Iraq and Kosovo. He is employed
implementation engineer with aninimir Pottsville, Pennsylvania since
2007. He works 8 AM until 5 PM Monday thru Friday, and on Tuesday and
Thursday he works
from home.
5
The divorce complaint was filed by Mother on April 24, 2014; ten days after Father
vacated the marital residence. Since separation, Mother has been the primary caretaker of the
Children in the marital residence. In December 2014, Mother became engaged to Cain
Ma-W (Fiance)2 who has been her friend since high school; they reconnected on
Facebook in 2008. Mother and Fiancé have been in a relationship since spring of 2014. Around
that same time, the Children met him and, later, in the summer, they vacationed with him and his
two children.
On or about this same time, Fiancé, who was residing in North Carolina at that time, had
decided to move to South Carolina to be closer to his own children who had relocated with their
mother, Fiancé's ex-wife, to Spartanburg, South Carolina. In December 2014, Mother decided to
move to South Carolina. Within a month, Fiancé applied for a job in the Spartanburg, South
Carolina area and he listed his North Carolina home for sale. After completing his South
Carolina educational certification necessary for employment in his field, Fiancé moved from
North Carolina in July 2015 to Duncan, South Carolina, approximately fifteen miles from his
children. He is employed as an Assistant Principal at wow School.
In April 2015 after Mother's decision to move to South Carolina,
Maternal Grandmother, listed her Pennsylvania home for sale, as she, too, had decided to move
to South Carolina. In the fall of 2015, Maternal Grandmother purchased
Moore, South Carolina, the residence to which Mother seeks to relocate. The home is located
ten miles from the home of CUM M1111111(Fiancé). Maternal Grandmother, age 68,
chose South Carolina allegedly due to its climate and its affordability. She has no relatives in
2 Mother's fiances last name is 111, there is no relation to Father.
6
is a
South Carolina; the closest relative is two hours away in Georgia. Maternal Grandmother's
She is
cancer survivor, has COPD, arthritis, and carcinoma in her lungs that is in remission.
semi -retired and works on-line with a company out of Emmaus, Pennsylvania.
In the meantime, the parties entered into a final custody agreement on March 26, 2015,
such that Mother has primary custody of the Children and that Father has periods
of partial
10 AM until
custody on alternating weekends Friday until Sunday and on alternating Saturdays
Father has
3:00 PM and every Tuesday and Thursday 4:30 PM until 7:00 PM. Essentially,
contact with the Children no less than every two days.
On December 21, 2015, an agreement was reached regarding the division of the marital
and that she
property. The parties agreed that Mother could keep possession of the marital home
addition,
would remove Father's name from the mortgage no later than September 2016. In
payments
Father agreed to pay alimony, $714 monthly, until December 2016. After the alimony
to financially
cease at the end of 2016, Mother, who is only employed part-time, will be unable
support the marital residence as her home or refinance the mortgage. Mother
has chosen to work
not look for
part time. She has sought employment at one location in the Lehigh Valley. She did
full time employment because she was going to relocate to South Carolina.
In January 2016, the parties were divorced and thereafter, Mother provided
Father with
from
notice of her intention to move to Moore, South Carolina, approximately 670 miles
spent the
Allentown, or a ten hour drive. In March and in April 2016, Mother and the Children
in contempt
weekend with Fiancé at his home in South Carolina. In May 2016, Fiancé was held
with his kids
in his own custody case, having spent the night with an unmarried woman, Mother,
7
and the Children. At the hearing he testified that they were engaged since December 2014. The
date is set for December 2016, after the termination of alimony.
FURTHER FINDINGS AND DISCUSSION
In deciding this matter, the Court must consider the factors for awarding custody, 23
Pa.C.S.A. § 5328(a), and the relocation factors, 23 Pa.C.S.A. § 5337(h), listed in Pennsylvania's
custody statute, 23 Pa.C.S.A. §§ 5321-40; see E.D. v. MP., 33 A.3d 73 (PA.Super.2011).
Where relocation will result in a change in the type of physical custody award, as with any award
of custody, the court must also apply the custody factors set forth in Section 5328(a) of the
Custody Statute. A.V v. S.T., 87 A.3d 818 (Pa.Super.2014). Section 5337 also alters the legal
standards that a trial court must consider when ruling on a request to relocate. Under prior
practice, trial courts considered relocation requests based exclusively upon the tripartite test set
forth in Gruber v. Gruber, 583 A.2d 434, 439 (Pa.Super. 1990). Under the Child Custody Act,
however, trial courts must consider the ten relocation factors listed in subsection 5337(h) as well
as the sixteen custody factors in section 5328. E.D., 33 A.3d at 79.3
3 There are statutory factors for awarding custody and for relocation that are not issues in this case. There were no
allegations that either parent withheld the Children from the other parent. The current custody schedule was agreed
upon and provides Father with frequent contact. There was no allegation of a pattern of conduct of either parent to
promote or thwart the relationship with the other parent. 23 Pa.C.S.A. § 5328(a)(1) 23 Pa.C.S.A. § 5337(h)(5). There
was no testimony of attempts by either party to turn the children against the other parent, 23 Pa.C.S.A. 5328(a)(8).
There have been no issues of child abuse or involvement of protective services. 23 Pa.C.S.A. § 5328(a)(2.1). The
Children are not being separated and there is no step or half siblings to be considered, 23 Pa.C.S.A. § 5328(a)(6).
The relocation factors and the custody factors consider the preference of the Children. 23 Pa.C.S.A. § 5337(h) (4)
and 23 Pa.C.S.A. § 5328(a)(7). While the Court believes that the Children are old enough to comprehend the
custody litigation, the Court chose not to interview them. The Children were visibly upset at an attempt to interview
them and were upset prior to coming into Court. The Court concluded that given their maturity it would not be in
their best interview to subject them to an interview. Neither parent insisted that they be interviewed. There was no
issue that with either party's availability to care for the child or ability to make appropriate child-care arrangements.
23 Pa.C.S.A. § 5328(a)(12). There is no history of drug or alcohol abuse of a party or member of a party's
household or mental or physical condition that impacts custody. 23 Pa.C.S.A. § 5328(a)(14) and (15).
8
During the marriage, and after separation, and divorce, Mother has been the Children's
primary caretaker. 23 Pa.C.S.A. § 5328(a)(3); 23 Pa.C.S.A. § 5337(h)(1). Mother has
maintained a stable and steady environment for the growth and development of the Children.
She was the parent primarily responsible for attending to the Children's physical, educational,
and medical needs. She was the parent available to care for the Children in that Father was the
traditional breadwinner. Mother worked part-time during school hours. Father has worked full
time, two days of the week out of the home.
Since separation, Father's interaction with the Children has changed in that he now is
responsible for performing parental duties that otherwise had been solely Mother's
responsibility. He feeds them, clothes them, addresses their educational needs, plays with them
and otherwise engages in their development. He has done so consistently and regularly. The
nature of the relationships between each child and each parent is unique. For instance, Mother
generally takes Taro dance classes. Mother testified that lardid not want Father to take
her to her dance classes, insinuating something negative between TO and Father. It was later
revealed that '11111 did not want Father to see her practice, so that when he attended the recital
he would be surprised.
It cannot be denied that Mother has raised issues with Father's parental care regarding
meals, medication, and tardiness. The complaints taken individually or taken all together do not
rise to a level that one would reasonably conclude that Father is not a good parent. In fact,
Mother stated that she trusted Father as a parent. The issues seemed more about the parents'
separation, frustration with the circumstances and refusal to communicate with each other.
These issues ceased after communication between the parties. Historically, Mother has been the
9
dominant parent in terms of parental responsibilities, such as education and medical
appointments. However, Father has demonstrated his ability to fulfill his parental
responsibilities. Finally, in so far as Mother has offered Father more than a month of
consecutive custody in her custody proposal, she cannot argue that Father is unable to be a
responsible parent for his Children.
Both parties are committed parents. Father has been the traditional breadwinner and has
had less time available to care for the Children. Despite this, he has exercised frequent and
regular contact. Meanwhile, Mother has been the stable and steady caretaker, tending to
educational and medical needs. Father has been actively involved in the Children's lives on a
weekly basis. Both parents have demonstrated their ability to attend to the daily physical,
emotional, developmental, educational and special needs of the children.
23Pa.C.S.A.§5328(a)(10). Moreover, both parents have equally established that they are able to
maintain a loving, consistent, and nurturing relationship with the children adequate for the
children's emotional needs. 23 Pa.C.S.A. § 5328(a)(9).
Stability is also an element of this factor. Both parents are at a crossroads as far as
housing. Admittedly, Father has been strapped with child support payments and alimony
payments. The alimony terminates in December 2016. Father has expressed his desire to move
from paternal grandparents home. The home is located in the Allentown School District which
falls short of the quality of education at other suburban school districts. A change in residence is
in Father's future. Similarly, as a consequence of the termination of alimony and Mother's
failure to find full time employment, Mother and Children will be vacating the residence where
the Children have resided for the past four years. Other than one application for employment in
10
the Lehigh Valley, Mother did not look for work because she was moving to South Carolina.
According to Mother, the proposed stay at the maternal grandmother's home is just temporary
until she is married and able to relocate with her future husband. In conclusion, at this time, it
appears that Father is more stable in his circumstances; however, this is but one factor.
In addition, the court must consider the need for stability and continuity in the Children's
education, family life, and community life. 23 Pa.C.S.A. § 5328(a)(4). This Court has long
recognized that the removal of a young child from his environment is a factor which bears upon
its emotional well-being." Hugo v. Hugo, 420 A.2d 1183 (Pa.Super. 1981). A disruption of an
established pattern of care and emotional bonds is detrimental to a child. Unfortunately, in this
case, Mother has already disrupted any established pattern. She failed to seek employment
sufficient to maintain the marital residence. Regardless of the court's decision, the Children will
have to move. It is clear there will be a substantial disruption to Children's established routines
and family life. It is unknown to the Court where the Children will attend school this fall.
The Children are both excellent students. They do not attend the same school. al,
age 7, has attended School for two years. This fall, she will be in
second grade. She has participated in dance for four years. She currently attends
gymnastics and intends to participate in the fall. She has established relationships and routines
as a result of the time that she has been involved in school, dance, and gymnastics. AS has
attended School for the past four years. In the, fall he will be in the sixth
grade. He achieved all A's and is Satisfactory to Excellent in all subject matters. He attended
kindergarten and first grade in 1111111MI Elementary School. 1v1 has been at his school
11
as
for several years and has developed relationships there and familiarity in his neighborhood
well.
A consideration in a relocation case is the age, developmental stage, needs of the child
emotional
and the likely impact the relocation will have on the child's physical, educational and
5337(h)(2).
development, taking into consideration any special needs of the child. 23 Pa.C.S.A.
§
Children to
The stability and continuity in education and environment are important. Relocating
family, and
a new school, away from Father, paternal grandparents, paternal aunt and extended
friends would be a significant disruption in their routine.
stay at
Both parents are actively involved with the Children. Mother has been a part-time
home caretaker for the Children, Father exercises a custody schedule that allows
him to be
involved frequently during the week. There is no evidence that one parent's relationship with
than the
the children is by nature better, more extensive, of a better quality, or more involved
been their
other parent. The Children have a very close relationship with their Mother who has
23 Pa.C.S.A.
primary custodian. Equivalently, the Children have an attachment to their Father.
§ 5337(h)(1).
The same could be said of the extended family. The Children have relationships
with
their grandparents. The parents resided with maternal grandparents for a period
of time prior to
Children
moving into the marital residence. Maternal Grandmother lived with Mother and the
to South
during the summer of 2015. The Children have seen less of her since she moved
Carolina, but they have visited several times since. The Children stay at the home
of Paternal
for the
Grandparents during Father's periods of custody. Paternal aunt provides child care
12
Children on behalf of Mother. In addition, the Children have developed a relationship with
Fiancé and his children. 23 Pa.C.S.A. § 5328(a)(5).
Pursuant to 23 Pa.C.S.A. § 5337(h)(7) the court must evaluate whether the relocation will
enhance the general quality of life for the children, including, but not limited to, financial or
emotional benefit or educational opportunity. Mother has not obtained employment in South
Carolina. The qualities of the schools are the similar to those that the Children currently attend.
Here, the benefits of the move to Children are no greater than remaining in Pennsylvania. There
may be excellent schools in South Carolina, but there is no evidence that any of the schools
Children have attended are sub -par.
The Children's general quality of life will not be enhanced, largely due to the lack of
proximity of the residences of their parents. 23 Pa.C.S.A. § 5328(a)(11). Previously, the parties
lived in the same County and regular contact among the parents and Children were achieved
easily. Father has regular physical contact with the Children at least every two days; this is
impossible if the children live hours away. The relationship as it is now is extremely difficult to
preserve over such a distance, especially given the tender age of the Children. Communication
via Skype can preserve face time and children are said to be resilient and can adapt. However,
computers cannot recreate cuddling with a child and a storybook or tucking the child into bed.
23 Pa.C.S.A. § 5337(h)(3).
The distance is substantial, which would prevent frequent visits, and funding travel may
be cost -prohibitive. Father's physical custody of the Children would be reduced, unfortunately,
to three times per year due to the distance and expense. The only means of frequent
communication would be via phone or computer. Although Mother proposed a substitute
13
custody arrangement, summers with Father would not adequately substitute for the consistent
weekly contact between Father and Children. The relocation to South Carolina would not
adequately foster an ongoing relationship between Children and Father. The Children would be
life
deprived of substantial periods of time with Father. There is a limited time period in a child's
to
when the child should be forming relationships with both parents. The distance is prohibitive
maintaining the relationship.
Next, the court must evaluate 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. 23 Pa.C.S.A. § 5337(h)(6) Mother's proposed relocation is
without an immediate financial plan. She explained that once she is married there will be a dual
income household able to provide for a home. She explained her fiancé will financially support
She is
her, and that the kids will be able to do more because of more income in the household.
for
confident that she is able to find employment in South Carolina. However, she never looked
this type of work in the Lehigh Valley in order to sustain herself for the sake of the stability
of
the family here in the Lehigh Valley. She made an inadequate attempt to obtain full time
to
employment in order to retain the marital residence. Were this Court to grant Mother's request
thrown
relocate and then Mother and fiancé end their relationship, the Children's lives would be
Court
into complete turmoil, especially because Mother has no means to support herself. The
with
will not risk putting Children into such a situation, especially when there are viable options
Father. See S.JS., 76 A.3d at 552.
Without a doubt, Mother's relocation is to her emotional benefit. She is engaged to be
looks
married to a longtime friend. Her own mother has relocated to that area. It is clear Mother
14
give her
forward to starting anew. Mother described that she wanted to move so that she could
and
children a family environment where the parents share the same morals and values, drives
that her
ambitions, to help each other and to create that family for her Children. She believes
own happiness will trickle down to the Children. Her plans, however, overlook
a significant
figure in the Children's lives -their father.
described
The Court does not doubt that there have been difficult times for Mother. She
There has never
multiple occasions of verbal abuse, sometimes in the presence of the Children.
and
been a risk of harm to the children. Each party is adequately fit to provide safeguards
or member of
supervision of the Children. Abuse, present and past abuse committed by a party
5328(a)(2), 23 Pa.C.S.A. § 5337(h)(9). There
the party's household, is a factor. 23 Pa.C.S.A. §
and two instances
was credible testimony of Father using inappropriate language towards Mother
of physical confrontation. This event occurred due to the stress and circumstances of
the
There is no
dissolution of the family and the heightened conflict that result from frustration.
excuse for such behavior; however, it has not been pervasive throughout.
There is no continued
the parents are intelligent
risk of harm to Mother. There is conflict between the parents; however
arrangements. Despite
and self-respecting such that the conflict has not interfered with custodial
the tension and strain, each parent is able to remain focused on the best interests
of the Children
and demonstrate a willingness to cooperate with each other. 23 Pa.C.S.A. § 5328(a)(13).
Finally, the court must also evaluate the reasons and motivations and integrity
of Father
who opposes the relocation. 23 Pa.C.S.A. § 5337(h)(8), 23. Pa.C.S.A. § 5337(i)(2). The Court
relationship with the
concludes that Father's motives for opposing relocation are to preserve his
Children as well as his family's relationship with the Children.
15
CONCLUSION
In conclusion, Mother said she was relocating because she cannot maintain the current
home and the cost of living in Emmaus, Pennsylvania, however, she does not have employment
or a source of income in South Carolina. She is interested in work in the non-profit sector and
hotel or restaurant work, but only in South Carolina. She is relocating to assist maternal
grandmother who is in need of physical support due to her health issues, but she doesn't explain
who will help Maternal Grandmother after Mother relocates with her future husband. Mother
wanted to relocate during the school year to a situation that lacks permanency and is subject to
change.
In S.J.S. v. MJS., Mother's relocation with paramour was denied although Mother was
previously primary caretaker. 76 A.3d at 543. Mother (S.J.S.) wished to move with children
seven -and -a -half hours from Father and her previous home. Id. at 546. The Trial Court
examined the factors and appropriately ruled on both parental custody and mother's relocation
request. Id. at 549. The Trial Court found, and the Superior Court affirmed, denying Mother's
request to relocate, when the benefits to children were not exclusive to the new location was
appropriate. Id. at 554. Mother's request to relocate centered on accommodating Mother's
paramour's desire to move. Id. at 553. Mother also argued there were excellent schools in the
proposed relocation area. Id. at 551.
All the factors were examined in S.J.S., but the Court found that Mother's wish to
relocate did not outweigh the detrimental effect on Father's time and relationship with children
especially considering that Mother's reasons for the relocation lacked integrity. Id. at 553. The
Trial Court emphasized the stability of the children's relationships in their current area and found
16
both parents were capable of being fit and caring. Id. at 552. With only a seven-and -a-half-hour
drive separating the current location to the potential relocation, the Trial Court found no
adequate partial custody arrangements existed that would preserve the relationship of children
with their father. Id. at 554.
It "is the fact-finder's sole prerogative to pass on the credibility of the witnesses and the weight
to be given to their testimony." Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa.Super. 2014)
(quoting Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa.Super. 2013)). This Court has found
Father to be credible and earnest. This Court concludes Mother may steer the ship, but her
actions come across as calculating. Father has been involved weekly with Children. If the
Children moved to South Carolina, the Children would be missing the opportunity to develop a
meaningful relationship with Father and Father would not have the opportunity to share in love
and rearing of the Children. Mother's proposed custody arrangement would eliminate the weekly
contact that has been critical for providing the Children with the opportunity to bond with Father
and his extended family.
A new life in South Carolina is not worth the expense to the Children by uprooting them
from Father, school, friends, and extended family while creating instability in their lives. The
benefits to the Children are not exclusive to South Carolina and do not outweigh the detrimental
effect on Father's time and relationship with Children. Mother has not met her burden that
relocation is in Children's best interests.
Date: August 5, 2016
Michele A. Varricchio, J.
17
Circulated 04/10/2017 04:40 PM
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION
A. D. W., No. 2014-FC-0538
Plaintiff/Appellant
vs. CUSTODY
F. W., JR., ASSIGNED TO:
Defendant/Appellee The Honorable Michele A. Varricchio .
'Ns
et,
Pa. R.A.P. 1925(a) STATEMENT
AND NOW, this [th day of September, 2016, the undersigned enters the finQ 471
statement pursuant to Pennsylvania Rules of Appellate Procedure 1925(a):
t?; M
On August 1, 2016, this Court entered a Final Custody Order denying C:1
ci S9
A*
June 222005. ndt,0
Appellant/Mother's request to relocate with the children, M.C.W. born
and modifying its previous
T.P.W. born October 27, 2008, hereinafter referred to as children
physical custody of the
Custody Order of March 26, 2015, to give Mother and Father shared
filed her Notice
children. On August 25, 2016, Appellant A.D.W. (Mother), contemporaneously
August
of Appeal to the Superior Court Docket Number 2792 EDA 2016 from the Court's
1,
Final Custody Order and a Motion for Reconsideration ofFinal
Custody Order pursuant to
filed
Pa.R.C.P. 1930.2. Due to the Children's Fast Track designation, Mother simultaneously
to Pa.R.A.P. 1925(b) with
her Concise Statement of Errors Complained of on Appeal Pursuant
her Notice of Appeal . This Court dismissed Mother's Motion for Reconsideration as moot by
Order of Court dated September 22, 2016.
Mother raises
In her Concise Statement of Matters of Errors Complained of on Appeal,
twelve issues from which the following is taken verbatim:
The Honorable Court committed an error of law and abuse of
discretion in
1.
to a new
denying Mother's request for permission to relocate the children
residence in South Carolina.
2. The Honorable Court committed an error of law and abuse of discretion in
concluding that it would not be in the children's best interest to be in their
Mother's primary physical custody.
3. The Honorable Court's decision awarding shared physical custody to Father
was against the weight of the evidence, and constituted an error of law and
abuse of discretion.
4. The Honorable Court was in error in that it granted a modification of the
custody order pursuant to 23 Pa.C.S.A. §5337 (f), where the Plaintiff's request
for relocation was denied.
5. The Honorable Court was in error in that it granted a modification of the
custody order, despite Defendant's withdrawal of his Petition for Modification
during the trial and in the absence of another pending Petition or other claim
for modification.
6. The Honorable Court was in error in that it modified the custody order after
denying Plaintiff's request for permission to relocate the children, where
Plaintiff's relocation request was the only claim of either party before the
court for disposition.
7. The Honorable Court was in error in that it inadequately weighed the factors
under 23 Pa.C.S.A. §5328(a), in its determination that the children's best
interests required an award for shared physical custody.
8. The Honorable Court was in error in that it inadequately weighed the factors
under 23 Pa. C.S.A. §5328(a)(3), (9), (10), and (12) in its determination that
the children's best interests required an award for shared physical custody.
9. The Honorable Court was in error in that it inadequately weighed Mother's
role as primary caretaker of the children in its determination that the
children's best interests required an award for shared physical custody.
10. The Honorable Court was in error in that it improperly concluded that the
Father is more stable in his circumstances, because the Mother intended to
vacate the former marital residence and it was "unknown to the court where
the Children will attend school this fall."
11. Where the Father had also indicated an intention to move to a new residence
in the near future the Honorable Court erred in finding that Father is the more
stable parent with respect to his residence.
12. Where the court had just denied the planned relocation of Mother, the
Honorable Court erred in weighing against Mother the immediate uncertainty
with respect to the children's schooling as an indication of Mother's
instability supporting the court's modification of Mother's primary physical
custody to an award of shared physical custody.
Appellant/Mother's Concise Statement of Errors Complained of on Appeal, ¶1-12. The Court
adequately addressed Mother's first two contentions of error and the procedural and factual
background of the case in the August 5, 2016, Memorandum Opinion entered in support of the
2
August 1, 2016 Final Custody Order and we incorporate the August 5th Opinion herein.
Additionally, credibility of the parties played a role in this Court's decision to
deny the
not find Mother
relocation; some witnesses were more credible than others. Here the Court did
to be a credible witness about the integrity of her motives in pursuing the relocation.
Standard of Review
Appellate Courts review custody orders using a gross abuse of discretion standard.
Ottolini v. Barrett, 954 A.2d 610, 612 (Pa. Super. 2008). As set forth by the Pennsylvania
Supreme Court the standard of review of "an appellate court reviewing a child
custody order, is
made by the
of the broadest type; the appellate court is not bound by the deductions or inferences
has no
trial court from its findings of fact, nor must the reviewing court accept a finding that
competent evidence to support it." Moore v. Moore, 634 A.2d 163, 168 (Pa. 1993)(intemal
citations). The Court continued,
[h]owever 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.
Moore, 634 A.2d at 168 (internal citations omitted). "In addition, with regards to issues of
viewed and
credibility and weight of the evidence, we must defer to the presiding trial judge who
assessed the witnesses first-hand." V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super.
overrides or
2012)(citations omitted). Moreover, "[i]f a trial court, in reaching its conclusion,
reaches a
misapplies the law or exercises judgment which is manifestly unreasonable, or
evidence of
conclusion that is the result of partiality, prejudice, bias or ill will as shown by the
Bonawits,
record, then discretion is abused." Ottolini, 954 A.2d at 612, relying on Bonawits
v.
3
review of custody cases is "to
907 A.2d 611, 614 (Pa. Super. 2006). The close comprehensive
Bertin, Pennsylvania Child Custody:
ensure that the best interests of the child are being served."
Law, Practice, and Procedure (2016 ed.); Mahoney v. Mahoney, 51 A.2d 694 (Pa. 1986).
Award of Shared Physical Custody
to award shared physical
Mother's third contention of error is that the Court's decision
and constituted an error of law and
custody to Father was against the weight of the evidence,
abuse of discretion. It is well settled that:
court may modify a
Section 5338 of the Act provides that, upon petition, a trial
23 Pa.C.S. §5338. The
custody order if it serves the best interests of the child.
considers all factors that
best[ -]interests standard, decided on a case -by -case basis,
moral, and
legitimately have an effect upon the child's physical, intellectual,
(Pa. Super. 2006) (citing
spiritual well-being. Saintz v. Rinker, 902 A.2d 509, 512
Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).
change
R.S. v. T.T., 113 A.3d 1254, 1258 (Pa. Super. 2015). When considering a possible
trial courts that,
in custody, the Pennsylvania Superior Court has admonished
on the child of the
it is incumbent on the court to fully discuss the possible effect
573, 662 A.2d
proposed transfer of custody." E.A.L. v. L.J.W., 443 Pa.Super.
1109, 1117 (1995) (quotation and citation omitted). See
also Masser v. Miller,
865 A.2d 931, 937
913 A.2d 912, 921 (Pa.Super.2006) (quoting Johns v.
Cioci,
of continuity and
(Pa.Super.2004)) ("The court must give attention to the benefits
stability in custody arrangements and to the possibility
of harm arising from
disruption of longstanding patterns of care.").
R.S. v. TT, 113 A.2d at 1261. When considering an award of shared physical custody the Court
is to consider:
court must consider
[i]n determining whether to award shared [ ] custody, the trial
capable of making
the following factors: (1) whether both parents are fit,
provide love and care
reasonable child rearing decisions, and willing and able to
desire for active
for their children; (2) whether both parents evidence a continuing
both parents as a
involvement in the child's life; (3) whether the child recognizes
source of security and love; and (4) whether a minimal degree
of cooperation
between the parents is possible.
4
R.S. v. TT, 113 A.3d at 1260 relying on Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008).
Mother and Father. They
Here, both children were born into an intact marriage between
in one home until April of 2014.
resided with both parents and were cared for by both parents
in the home and Father arranged
Mother worked part time so that she could care for the children
to be available for the children. After
his work schedule to work two days out of the home
to reside at the marital residence with
Father separated from Mother, the children continued
Mother. The Court entered the prior custody order
by agreement before reaching a custody trial
on March 26, 2015.
continued to see both
Pursuant to the March 26, 2015, Order of Court, the children
Though the children visit with Father
Mother and Father with no more than two days separation.
for two nights during the school week, the children
have had the advantage of being able to sleep
in their normal beds at the marital residence for at least
five nights a week since the parties'
for the children. At the time of the
separation, which has created stability and consistency
for sale. Necessarily, this sale will
relocation hearing, the marital home was under contract
Mother's attorney contacted the Court
disrupt the children's routine and their sense of "home."
that the marital residence was under
and Father's attorney via email on July 14, 2016, to disclose
also asked me to request that the
agreement of sale, and he stated that, "She {Mother] has
children not be told of this just yet, again because of
the pending case. She told me that she
intends to tell Mr. WO, today, and ask him not to tell the children just yet." This statement
to move will be upsetting to the
gives rise to an inference that knowing they would have
that the removal of a young child
children. See, Ex.1. Pennsylvania Court's has long recognized
emotional well-being. Hugo v. Hugo, 420
from his environment is a factor which bears upon his
A.2d 1183 (Pa.Super. 1981).
5
As the Pennsylvania Superior Court stated in, D.K.D. v. A.L.C., 141 A.3d 566 (Pa.
Super. 2016), "the evidence of record supports the ... finding that Mother neglected to make a
or, ....maintain the marital
sincere unencumbered effort to find employment in Pennsylvania
residence to avoid removing L.D. from his stable environment and
steady routine." Id. at 577. In
the USA JOBS website,
D.K.D., the Mother had filled out 800 applications through
Pennsylvania. Id. at 577.
predominantly in Florida, but had filled out some applications for
Here, the testimony at trial was that Mother had only applied
for one full time position in
South Carolina as early as
Pennsylvania and that she had been committed to moving to
in
December of 2014. Based upon Mother's failure to pursue full time employment
final alimony payment in
Pennsylvania so that she could afford the marital residence after the
December of 2016, the marital residence had to be sold regardless
of whether or not this Court
certain disruption to the
granted Mother's relocation petition and request for modification. This
children's best interest to
children's stable environment, prompted the Court in considering the
evaluate Father's desire to take a larger role in raising his children
than he had been previously
Court considered all the
provided with under the March 26, 2015 Custody agreement. The
evidence and found that the possibility of harm arising from disruption
of longstanding patterns
care since April of
of care was negligible, as the children have only been in Mother's primary
2014, and Father still sees the children and performs paternal duties
two weeknights a week and
children will be forced to
every other weekend. Moreover, because of Mother's actions, the
Order and they will
adjust to a new home with Mother, regardless of any change to the Custody
benefit from overnights with Father during the week that will occur
in their paternal grandparents
home, where they have been used to staying with Father since
April of 2014. The shared
and stability in custody
physical custody arrangement will benefit the children with continuity
6
arrangements and their surroundings.
The United States Supreme Court has long held that "[i]t is cardinal with us that the
custody, care and nurture of the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither supply nor hinder." Prince v.
Massachussetts, 321 U.S. 158, 167 (Pa. 1944). While, "[T]he Act of November 23, 2010 is, in a
sense, a radical departure: the Statute dispenses with any reference to public policy that it is in
the best interests of children to permit them to maintain a meaningful relationship with both
parents," both parents active involvement in their children's lives remains the state's goal. 17
West's Pa. Prac., Family Law §28:2 (7th ed.); 23 Pa. C.S.A. §5328(a)(1). For instance, in child
support matters, the Courts have sought to provide the child with at least the, "legal and financial
benefits of a parental relationship," but have stated that, "we hope that [the husband's] heart will
follow his money." K.E.M. v. P.C.S., 38 A.3d 798, 809 (Pa. 2012)(internal citations omitted).
Here, Mother's sale of the marital residence and uncertainty of her future living
arrangements has already disrupted the children's established pattern, and the shared physical
custody award will minimize the harm to the children. The evidence adduced at trial
demonstrated that both parents are fit, capable of making reasonable child rearing decisions, and
willing and able to provide love and care for their children. Both parents have expressed a
continuing desire for active involvement in their children's lives and have supported their words
with their actions of: feeding and clothing their children, addressing their educational needs,
playing with them, taking them to activities and attending events important to the children, such
as T.W.'s dance recital. The children recognize both parents as a source of security and love.
There has been conflict between the parents, however they have demonstrated the ability to keep
the conflict from interfering with the custody arrangements and have demonstrated a willingness
7
to cooperate with each other. Thus, the Court believes that the record
demonstrates that all four
been met such that
of the factors regarding an award of shared legal and physical custody have
that the Court's award of
shared physical custody of the children is in their best interest and
shard physical custody was not against the weight of the evidence nor
constituted an error of law
or abuse of discretion. See R.S. v. TT, 113 A.3d at 1261.
Modifying the Custody Order after Denying Mother's Request to Relocate
decision
Mother's fourth, fifth, and sixth contentions of errors all challenge this Court's
custody after denying
to Modify the existing Custody Order to grant Father shared physical
Petition to Modify
Mother's request to relocate to South Carolina. Father chose to withdraw his
he had not yet
the Custody Order at the time of the relocation hearing in this case, because
discussed the
secured a residence in the children's current school district. The parties
See Notes of
withdrawal of Father's petition to modify on the record before the trial commenced.
"Everything is in
Testimony, N.T., 7/8/2016, at 7:13-10:19. The Court clearly informed counsel,
opens the door
the air here for this family. I think that, you know, your filing this action today
See N.T.,
for the Court to modify the custody arrangement, and not to simply deny relocation."
that Mother's
7/8/2016, at 10:12-16. Thus, both parties were aware of the Court's position
filed March 16,
Answer and New Matter to Defendant's Petition for Modification of Custody
opened the door to
2016, required a Modification of the March 26, 2015 Custody Order, and thus
a new Custody Order. Both parties proceeded to present evidence
of not just the ten relocation
contained in 23
factors contained at 23 Pa.C.S.A. §5337, but also the sixteen custody factors
5328(a). Thus, the parties' due process rights were satisfied as the parties
had
Pa.C.S.A. §
to Modify Custody
adequate notice to prepare for a full custody hearing, as the Father's Petition
to litigate the custody
was not withdrawn until the time of the trial and a full and fair opportunity
8
the Court was aware that the
issues at the trial. This case also involved evolving circumstances,
marital residence needed to be sold by September at the time
of trial and had been informed by
the time the Court issued the Final
Mother's attorney that the home was under contract of sale, at
necessarily have to move
Custody Order on August 1, 2016, and that the children would
somewhere.
absence of a petition for
Generally, the Court may not modify a custody order in the
a request for
modification. Seger v. Seger, 545 A.2d 376 (1988). However, any case involving
because in the event that the
relocation, necessarily involves consideration of custody issues,
following , 23 Pa.C.S.A.
Court grants a proposed relocation request, the Court must,
a new one. Once the Court has been
§5337(g)(4), modify the existing custody order or establish
whether through the initial filing of a
summoned to examine the best interests of the children,
for Relocation, the Court owes an
custody complaint, a petition to modify custody, or a Petition
minimize any harm to children.
obligation to the children to prioritize their best interests and
This is not a simple relocation case, where if the relocation is denied, the parties can continue
without change to their existing custody order. The consequence
of any denial of a proposed
will forego their custody rights
relocation creates uncertainty, as it is unknown whether a parent
and move to the proposed relocation without their children.
Mother informed the Court that she
children's current school district.
could not on her current salary afford to rent a home in the
attend school in the few remaining
This resulted in ambiguity as to where the children would
2016, Final Custody Order. Here, the
weeks of summer following the issuance of the August
1,
Court found it expeditious to
Mother's income and future residence were unknown, and the
modify the Custody Order to create stability for the children.
for this Court to enter a
If the Pennsylvania Superior Court finds that it was inappropriate
9
final custody order, where Father withdrew his Petition to Modify, this Court requests that its
August 1, 2016, Order of Court, be upheld as a temporary modification of the custody order
in
while Mother finds her new employment and new housing, and the children begin school
Lehigh County. See Choplosky v. Choplosky, 584 A.2d 340, 343 (Pa. Super. 1990)(A trial court
may temporarily modify custody order despite lack of petition to modify, where temporary
modification of custody will preserve the well being of children involved while parties prepared
to resolve more permanently the question of where or with whom children should remain.).
Consideration of all of the Custody Factors
Mother's seventh contention of error is that this Court adequately failed to consider the
custody factors under 23 Pa. C.S.A. §5328(a), in making the determination that the children's
best interests required an award for shared physical custody. From the outset, we observe that
case
Mother is correct that the new Child Custody Act, 23 Pa. C.S. §§ 5321-5340, applies to the
at hand because Mother filed her Complaint for Custody after January 24, 2011, the effective
date of the new law. See E.D. v. MP., 33 A.3d 73 (Pa. Super. 2011). Under this Act, when a
party files for custody, the Court is to determine in whose custody the best interests of the child
would be served using the factors found in 23 Pa. C.S.A. §5328. Both parties have the burden of
proof by a preponderance of the evidence, as in custody disputes between natural parents, "the
parents are viewed as having an equal interest in the child's welfare and thus the evidentiary
scale is evenly balanced at the outset." Bertin, PennysIvania Child Custody §7:1; Sawako v.
Sawko, 625 A.2d 692 (Pa. 1993); 23 Pa.C.S.A. §5327 (a). However, in the custody relocation
context, the party seeking to relocate has the burden of establishing that relocating is in
her
children's best interest and each party has the burden of establishing the integrity of their
motives in seeking or opposing the relocation and modification. See 23 Pa.C.S.A. §5337(i).
10
The paramount concern in any child custody case is the best interest of the child.
Durning v. Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011). Determining the best
may
interests of the child requires a "case-by case assessment of all of the factors that
legitimately affect the 'physical, intellectual, moral, and spiritual well-being' of the child."
Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005). Title 23 Pa.C.S.A. §5328 sets forth
fifteen (15) specific factors that the Court is required to determine in deciding the best interest of
the children in a custody proceeding "giving weighted consideration to those factors which affect
the safety of the child." These factors include: (1) which party is more likely to encourage and
permit frequent and continuing contact between the children and the other parent; (2) present and
past abuse committed by a parent or member of the parent's household; (2.1) the information set
forth in section 5329.1(a)(relating to consideration of child abuse and involvement with
protective services); (3) the parental duties performed by each parent on behalf of the children;
(4) the need for stability in the children's education, family and community life; (5)
the
availability of extended family; (6) the children's sibling relationships; (7) the well -reasoned
preference of the children; (8) the attempts of a parent to turn the child against the other parent,
except in cases of domestic violence where reasonable safety measures are necessary to protect
the child from harm; (9) which party is more likely to maintain a loving, stable, consistent and
nurturing relationship with the children adequate for their emotional needs; (10) which parent is
more likely to attend to the daily physical, emotional, developmental, educational and special
needs of the children; (11) the proximity of the residences of the parents; (12) each parent's
availability to care for the children or ability to make appropriate child-care arrangements; (13)
the level of conflict between the parents and the willingness or ability of the parents to cooperate
with one another; (14) the history of drug or alcohol abuse of a parent or member of the parent's
11
parent or member of the parent's
household; and (15) the mental and physical condition of a
with a sixteenth general factor
household. 23 Pa.C.S.A. §5328. 23 Pa.C.S.A. §5328 concludes
of, "any other relevant factor." Id.
factors pursuant to 23 Pa.
This Court, as required, appropriately considered all sixteen
physical custody and
C.S.A. §5328 in reaching its decision to award Father with shared
2016, in Support of the August
discussed the factors in our Memorandum Opinion of August 8,
its discussion and consideration
1, 2016 Final Custody Order. The Court included in a footnote
case. The Court stated:
of the factors that it found to be neutral or not at issue in this particular
that are not issues in
There are statutory factors for awarding custody and for relocation
the Children from the
this case. There were no allegations that either parent withheld
and provides Father with
other parent. The current custody schedule was agreed upon
conduct of either parent to
frequent contact. There was no allegation of a pattern of
Pa.C.S.A. § 5328(a)(1) 23
promote or thwart the relationship with the other parent. 23
by either party to turn the
Pa.C.S.A. § 5337(h)(5). There was no testimony of attempts
have been no issues of
children against the other parent, 23 Pa.C.S.A. 5328(a)(8). There
§ 5328(a)(2.1). The
child abuse or involvement of protective services. 23 Pa.C.S.A.
siblings to be considered, 23
Children are not being separated and there is no step or half
factors consider the
Pa.C.S.A. § 5328(a)(6). The relocation factors and the custody
23 Pa.C.S.A. § 5328(a)(7).
preference of the Children. 23 Pa.C.S.A. § 5337(h) (4) and
to comprehend the custody
While the Court believes that the Children are old enough
were visibly upset at an
litigation, the Court chose not to interview them. The Children
into Court. The Court
attempt to interview them and were upset prior to coming
interview to subject them
concluded that given their maturity it would not be in their best
There was no issue that
to an interview. Neither parent insisted that they be interviewed.
to make appropriate child-
with either party's availability to care for the child or ability
history of drug or alcohol
care arrangements. 23 Pa.C.S.A. § 5328(a)(12). There is no
or physical condition that
abuse of a party or member of a party's household or mental
impacts custody. 23 Pa.C.S.A. § 5328(a)(14) and (15).
of many of these factors is
August 6, 2016, Mem. Opinion, P.8, Fn.3. While this discussion
the reasons for its custody
brief, "the Custody Act requires only that the trial court articulate
into consideration the enumerated
decision in open court or in a written opinion or order taking
factors." M.J.M. v. ML.G., 63 A.3d 331, 336 (Pa. Super. 2013). In MJ.M, the Pennsylvania
12
Superior Court held that,
for the trial
Contrary to Mother's argument, there is no required amount of detail
factors are
court's explanation; all that is required is that the enumerated
considerations. For
considered and that the custody decision is based on those
case at bar, it is
example, from the trial court's Explanation of Decision in the
5328(a) factors to
clear that while the trial court found the majority of the section
found that Father
balance fairly equally between Mother and Father, the trial court
would with
was more likely to promote a relationship with Mother than Mother
was a point of
Father and that Mother's attention to Child's educational needs
better attend to
grave concern. The trial court further concluded that Father would
its Explanation of
these needs. Explanation of Decision, 8/16/12, at 1-9. Thus, in
it weighed the
Decision, the trial court did precisely what it should have done;
determination and
entirety of the section 5328(a) factors in making the custody
of the reasons
articulated its considerations in a manner that informed the parties
for the custody award.
Id. at 336(footnotes omitted). The one factor that was arguably
not specifically cited to
in regards to the shared physical custody was the proximity
of the residences of the
the parties did not
parents here in Lehigh County. This is because as of the time of trial,
Thus the only
know where Mother would reside after the sale of the marital residence.
between Father's
distance the Court had to evaluate at that time was the distance
Mother in South
residence in Allentown and Mother's proposed new residence with her
in 23 Pa.C.S.A.
Carolina. Thus the Court considered all the required custody factors
§5328 (a) in reaching the determination that the children's best
interests would be served
by an award for shared physical custody and Mother's seventh
contention of error is
meritless.
Weight of the Custody Factors
the factors
Mother's eight contention of error is that the Court inadequately weighed
that the children's best
under 23 Pa. C.S.A. §5328 (a) (3), (9), (10), and (12) in the determination
dealt with factor (12)
interest required an award for shared physical custody. The Court
13
no
summarily in footnote 3 to the Memorandum Opinion of August 6, 2016, stating "[t]here was
to make appropriate
issue that[sic.] with either party's availability to care for the child or ability
children were cared
child-care arrangements." The evidence produced at trial showed that the
and his Father
for almost exclusively by the parents or extended family members. Father
the children during the
testified that Father spent almost every minute of his custody time with
Father's meals
week, with the children. The Court addressed Mother's complaints about
and that Mother trusts
medication, and tardiness. The Court found that Father is a good parent
and was available to
Father as a parent. The record reflected that Mother is a primary caregiver
did not error in
care for the child or make appropriate child-care arrangements. Thus the Court
weighing this factor as neutral.
daily physical,
In regards to the tenth factor, "which parent is more likely to attend to the
emotional, developmental, educational and special needs of the children,"
both parties testified
parties tuck their
about attending to their children's needs on a regular consistent basis. Both
was the primary
children in at night, feed, clothe, and bathe the children. It is true that Mother
care giver, particularly when the parties were married, but Father was the
traditional breadwinner
and had less time available to care for the children. It has long been held
that the "fact that a
parent must work is not a factor that may be used to deprive that parent of
custody where
Witmayer v.
adequate arrangements have been made for child's care in parent's absence."
Witmayer, 467 A.2d 371 (Pa. Super. 1983). Since separation, Father
has been actively involved
are in his care.
in the children's lives and attending to the children's daily needs while they
Thus, the Court did not inappropriately weigh the tenth custody factor in
reaching its
determination that the factor was equally established.
Mother's tenth
The Court addresses the weight given to 23 Pa. C.S.A. (9) below with
14
contention of error regarding the Court's conclusion that Father is more stable in his
circumstances at this time. There was credible testimony from both parents about the many
parental duties each parent performs on behalf of the children, thus Mother's contention that the
Court inadequately weighed 23 Pa.C.S.A. §5328(a)(3) to be neutral is not supported from the
record. Thus, Mother's eighth contention of error is meritless.
Mother's Role as Primary Caretaker
Mother's ninth contention of error is that this Court inadequately weighed Mother's role
as the primary caretaker of the children in its determination that the children's best interests
required an award for shared physical custody. The Court specifically stated that, "since
separation, Mother has been the primary caretaker of the Children in the marital residence."
August 6, 2016, Mem. Opinion, P.6. The Court further discussed Mother's role as the parent
primarily responsible for attending to the Children's needs on Page 9 of the Memorandum
Opinion, but also discussed all that Father has done to perform parental duties since the parties
separation. See id, at P.9-10. The "primary caretaker doctrine" was formerly used by
Pennsylvania Courts in custody cases, "to tip the scales in favor of the primary caretaker in a
situation where the trial court deemed both natural parents to be fit to act as a primary custodian"
M.J.M. v. M.L.G., 63 A.2d. at 337-338. In M.J.M., the Pennsylvania Superior Court described in
length the evolution of this primary caretaker doctrine:
[O]n January 24, 2011, major revisions the Custody Act took effect. See
23 Pa.C.S.A. § 5321 et.seq. These revisions included the addition of section 5328,
which, as discussed above, sets forth a list of factors that a trial court must
consider when making a custody determination. Prior to listing the specific
factors, this provision provides: "In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant factors, giving
weighted consideration to those factors which affect the safety of the child[.]" 23
Pa.C.S.A. § 5328(a).
15
The language of this statute is clear. It explicitly provides that all relevant
factors shall be considered by the trial court, and the only factors that should be
given "weighted consideration" are factors that "affect the safety of the child[.]"
Id. "When the words of a statute are clear and free from all ambiguity, the letter
of
it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. §
1921(b); see also Arlo v. Ingram Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194,
1201 (2009). If the Pennsylvania Legislature intended for extra consideration
be
given to one parent because of his or her role as the primary caretaker, it would
have included language to that effect. Stated another way, the absence of such
language indicates that our Legislature has rejected the notion that in analyzing
both parents, additional consideration should be given to one because he or she
has been the primary caretaker.
Furthermore, the consideration the primary caretaker doctrine sought to
address (which parent spent more time providing day-to-day care for a young
child) is addressed implicitly in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§
5328(a)(3) ("The parental duties performed by each party on behalf of the
child."); (a)(4) ("The need for stability and continuity in the child's education,
family life and community life."). The considerations embraced, by the primary
caretaker doctrine have been woven into the statutory factors, such that they have
become part and parcel of the mandatory inquiry.
In short, the Legislature has created a mandatory inquiry to aid trial courts
in determining the best interests of the child in a custody dispute. In doing so, it
articulated the components of a parent's obligations and characteristics, and a
child's needs and welfare, that must be incorporated in the trial court's custody
decision where the parents are incapable of doing so on their own. In setting forth
these factors, the Legislature has required the trial court to give additional weight
only to factors that it finds affect the safety of the child. This language is clear,
and we cannot expand it to provide that a trial court must also give weighted
consideration to a party's role as primary caretaker. We simply cannot graft the
judicially-created primary caretaker doctrine on to the inquiry that the Legislature
has established, and so we conclude that the primary caretaker doctrine, insofar as
it required positive emphasis on the primary caretaker's status, is no longer viable.
We hasten to add that this conclusion does not mean that a trial court
cannot consider a parent's role as the primary caretaker when engaging in the
statutorily-guided inquiry. As discussed above, a trial court will necessarily
consider a parent's status as a primary caretaker implicitly as it considers the
section 5328(a) factors, and to the extent the trial court finds it necessary to
explicitly consider one parent's role as the primary caretaker, it is free to do so
under subsection (a)(16). It is within the trial court's purview as the finder of fact
to determine which factors are most salient and critical in each particular case.
See A.D. v. MA.B., 989 A.2d 32, 35-36 (Pa.Super.2010) ("In reviewing a custody
order ... 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."). Our decision here does not change that.
16
the primary
Id at 338-339 (Fn.10 omitted). Here the Court considered Mother's role as
caretaker in the analysis of the 23 Pa.C.S.A. §5328(a) factors. Mother is not entitled to
contention of error is
additional weighted consideration for this role and thus Mother's ninth
without merit.
Finding of Father's Stability
finding that
Mother's tenth and eleventh contentions of error challenged this court's
that this Court
Father is the more stable parent with respect to his residence. Mother alleges
the Mother
improperly concluded that Father is more stable in his circumstances, because
court where the
intended to vacate the former marital residence and it was "unknown to the
had indicated an
Children will attend school this fall." Mother also alleges that, because Father
that Father is
intention to move to a new residence in the near future, the Court erred in finding
stability in the parents
the more stable parent with respect to his residence. The Court considered
"which party is more
circumstances in accordance with custody factor 23 Pa.C.S.A. §5328(a)(9),
the children
likely to maintain a loving, stable, consistent and nurturing relationship with
to 23
adequate for their emotional needs." The Court also looked at stability in regards
and
Pa.C.S.A. §5328 (a) (4), "the need for stability in the children's education, family,
community life."
the children's
At the time of the custody trial, father was currently living with his parents,
residence and had been
paternal grandparents in Allentown. The children were familiar with this
staying there overnight with Father on alternating weekends at the very
least since March 26,
because he knew
2015. See N.T., 7/8/2016, at 189:4-8. Father chose to stay with his parents,
a good, safe,
their house had enough bedrooms to accommodate the children, and "[i]t was
17
place." Father has been employed at the same company, eib as an implementation engineer for
nine and a half years. See N.T., 7/8/2016, at 190:25-191:17. He works Monday, Wednesday,
Friday from 8:30 to 5:30 down in Pottsville; and then Tuesday, Thursday, he works from 8 am to
4 pm from home. See NJ., 7/8/2016, at 191:23-25. Father testified that after his name is
removed from the mortgage on the marital residence and the alimony payments to Mother cease
in December he does plan on moving out and buying a home. See N.T., 7/8/2016, at 210:1-15.
Counsel for Father indicated to the Court that Father intends to obtain an address in the
children's current school district. See N.T., 7/8/2016, at 9:7-9. This will provide the children
with stability in a residence, education, and family and community life. The removal of a small
child from its environment is a factor which bears upon a child's emotional well-being for
purposes of awarding custody. Custody of Phillips, 394 A.2d 989, 992 (Pa. Super. 1978). Here,
Father is not relocating until December of 2016, while Mother is of necessity relocating very
quickly because of the pending sale of the marital residence. Father's current residence is a
known, safe and good place for the children. Father's stable long term employment and his
commitment to buying a house in the children's current school district will enable the children to
maintain continuity in their friendships, schooling, afterschool activities, and relationships with
extended family. Father testified that over the summer, "my sister watches them on Tuesdays.
My mom watches them Wednesday, Thursday, Friday, and that's the way it's been all summer."
See N.T., 7/8/2016, at 216:10-14. The children have not been in childcare and have been cared
for all by extended family and friends. See N.T., 7/8/2016, at 216:22-217:5. This establishes
continuity for their family life, which helps contribute to a loving, stable, consistent, and
nurturing relationship with the children adequate for their emotional needs.
Mother, on the other hand, was aware at the time that she signed the property settlement
18
to be
agreement, December 21, 2015, that she would need to find full time employment in order
able to afford the marital residence at the end of the alimony payments in 2016, and
that she
only
needed to refinance the mortgage by September of 2016. Despite this knowledge, Mother
that
applied for one full time position in Lehigh Valley. The testimony at trial demonstrated
her
Mother had been planning on moving to South Carolina since December of 2014, helped
South
fiancé move to South Carolina, helped her mother move within ten miles of her fiancé in
Carolina, and neglected to make a sincere, unencumbered effort to find employment in
reflects
Pennsylvania or maintain the marital residence. D.KD., 141 A.3d at 577. The record
all of
that Mother was determined to move to South Carolina, and that she purposefully directed
her available resources toward that state, rather than Pennsylvania and the maintenance of a
Id. A
loving, stable consistent relationship with the children focused on their emotional needs.
court "must consider the importance of continuity in the children's life and desirability of
development of stable relationship with established parental figure and known physical
environment." Gerber v. Gerber, 487 A.2d 413, 416(Pa. Super. 1985). The Court found that as
a result of, "Mother's failure to find full time employment, Mother and Children will
be vacating
the residence where the children have resided for the past four years." Mother has had
various
part-time positions and now works at SUMO Hair Salon for about 30 hours a week where
she
earns $989.71 per month. See N.T., 7/8/2016, 13:4-17:21. It is unknown where Mother
will
Mother
choose to reside as she will also need to pursue full time employment to support herself.
is scheduled to marry her Fiance in December of 2016, he lives in South Carolina.
Thus, while
Father's residence may change to the children's current school district in December, Mother's
residence is a complete unknown. Therefore, the Court did not err finding that Father is the
it
more stable parent with respect to his residence. Because of the sale of the marital residence,
19
is unknown to the Court where the children will attend school this fall, Father's current residence
is in the Allentown School District, Mother made no alternative plans for housing in the
children's current school district should her relocation petition be denied. This ambiguity in
where the children will attend school does effect the children's emotional stability and the
stability in their educational life. The Court did not tie the finding, "it is unknown where the
Children will attend school this fall" to Father's stability. See August 6, 2016, Mem. Opinion,
P.11. Moreover, the Court emphasized that, "at this time, it appears that Father is more stable in
his circumstances; however this is but one factor." See Id. (emphasis added). Thus, the Court
did not put undue weight on this single factor, and did not err in concluding that Father is more
stable in his circumstances.
Immediate Uncertainty with Respect to the Children's Schooling
Lastly, Mother contends that because the court denied Mother's planned relocation, this
Court "erred in weighing against Mother the immediate uncertainty with respect to the children's
schooling as an indication of Mother's instability supporting the court's modification of
Mother's primary physical custody to an award of shared physical custody." Mother provided
Father with Notice of her Proposed Relocation to South Carolina by letter in January of 2016.
Father promptly filed an objection to the Proposed Relocation and a Petition to Modify Custody
in February of 2016. Mother has been on notice since that time that her request to move the
children to South Carolina might not be granted. She has also been on notice since December of
2015, that she could not afford to stay at the marital residence without full time employment past
September of 2016 when she would have to have secured refinancing of the mortgage. The
Children's school district is determined by their primary address. Despite this knowledge,
Mother has done nothing to secure an alternate address in the children's current school districts
20
thus it was not improper for the Court to consider Mother's failure to plan for the children's
schooling as the Court is instructed to consider "any relevant factor" in the best interest analysis.
23 Pa.C.S.A. §5328(a)(16).
Conclusion:
We respectfully request that the August 1, 2016, Final Custody Order be affirmed. If
Mother wishes to regain primary custody of her children, in light of her new living arrangements,
court
she should file a petition for modification pursuant to 23 Pa.C.S.A. §5328(a) and the trial
would be able to hold a hearing and render a custody determination utilizing the 23 Pa.C.S.A.
§5328(a) best -interest factors in light of the new circumstances. See D.K.D. v. A.L.C., 141 A.3d
566, 580 (Pa. Super. 2016).
BY THE COURT;
4A/11G6g4;
ichele A. Varricchio, J.
21
Leslie Kutney
From: John J. Zettlemoyer, Jr. [ilzj@ptd.net]
Sent: Thursday, July 14, 2016 4:19 PM
To: Leslie Kutney;detaglioli@markowitzandrichman.com
Cc:
Subject: v. Walli
now under
Judge Varricchio & Attorney Taglioli: My client has just informed me that her residence in Emmaus is
best, light of the pending case, to inform you, rather than to hold this
agreement of sale. advised her that thought
I I it in
because of the
information back. She has also asked me to request that the children not be told of this just yet, again
pending case. She told me that she intends to tell Mr. vvalk today, and ask him not to tell the children just yet. At this
time I know of no further details about the sale.
John J. Zettlemoyer, Jr., Esq.
Zettlemoyer Law Office, LLP
53 North Third Street
Emmaus, PA 18049
(610) 967-4654
Fax: (610) 965-3420
johnAzettlemoverlaw.com
http://www.zettlemoyerlaw.com
and may
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E.A.1\64
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