J.J.W. v. R.P.W. ( 2014 )

J.A19045/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.J.W., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
R.P.W., :
:
Appellant : No. 280 WDA 2014
Appeal from the Order Dated January 16, 2014
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007238-0016
BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 16, 2014
Appellant, R.P.W. (“Mother”), appeals from the order entered in the
Allegheny County Court of Common Pleas granting Appellee, J.J.W.’s
(“Father”) petition for modification of custody and relocation. Mother argues
that the court erred in granting Father permission to relocate from
Pittsburgh to Illinois and entering a custody order that is not in the best
interest of their children, J.C.W., born in August of 1999, H.J.W., born in
March of 2002, and P.C.W., born in August of 2005, (“Children”).
Specifically Mother claims the court erred by failing to properly consider the
statutory relocation factors, failing to hear testimony from Children, and
*
Former Justice specially assigned to the Superior Court.
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permitting Father to relocate to Illinois notwithstanding his failure to give
notice of his proposed relocation.1 We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 3/17/14, at 1-10. See also Findings of Fact,
1/16/14, at 2-34. Following a hearing, the court granted Father’s petition
for modification of custody and relocation. Order, 1/16/14, at 1-5
(unpaginated). This timely appeal followed.2 Mother and the trial court
complied with Pa.R.A.P. 1925.
Mother raises the following issues for our review, which we have
reordered for ease of disposition:
[1.] Did the trial court err and abuse its discretion when
considering the relocation factors enumerated in 23
Pa.C.S.[ ] § 5337?
[2.] Did the trial court err and abuse its discretion by
allowing Father to relocate [C]hildren from Pittsburgh to
Glenwood, Illinois when Father never submitted a [n]otice
of [p]roposed [r]elocation as required by 23 Pa.C.S.[ ] §
5337?
[3.] Did the trial court err and abuse its discretion in
entering a custody [o]rder that is not in the best interests
of [C]hildren?
[4. ] Did the trial court err and abuse its discretion in
entering an [o]rder that requires a stay-at-home Mother to
1
Father appeared at the hearing with counsel. Mother appeared pro se.
2
We note “[n]o motion for post-trial relief may be filed to an order of legal
or physical custody.” Pa.R.C.P. 1915.10(d).
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travel from Pittsburgh, Pennsylvania to Glenwood, Illinois
for the majority of Mother’s custody time with [C]hildren?
[5.] Did the trial court err and abuse its discretion by
failing to take testimony from [C]hildren prior to entering
its [o]rder?
Mother’s Brief at 3.
We address Mother’s first and second issues together because they are
interrelated. Mother claims the trial court abused its discretion in permitting
Children to “relocate” to Illinois because Father failed to file a proposed
notice of relocation and erred in its consideration of the relocation factors set
forth in 23 Pa.C.S. § 5337. Id. at 12, 17. We find Mother is not entitled to
relief.
In custody cases, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must
accept findings of the trial court that are supported by
competent evidence of record, as our role does not include
making independent factual determinations. In addition,
with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand. However,
we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is
whether the trial court’s conclusions are unreasonable as
shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of
law, or are unreasonable in light of the sustainable findings
of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Initially, we observe that in any custody case decided under the Child
Custody Act (“the Act”), the paramount concern is the best interests of the
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child. 23 Pa.C.S. §§ 5328(a), 5338(a). “[W]hen a party files a petition for
modification of a custody order, the trial court must perform a ‘best interests
of the child’ analysis considering all of the section 5328(a) factors.” 3 E.D. v.
3
Section 5328(a) provides:
(a) Factors.—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, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is a
continued risk of harm to the child or an abused party
and which party can better provide adequate physical
safeguards and supervision of the child.
(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.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(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.
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M.P., 33 A.3d 73, 80 (Pa. Super. 2011). “Under the Child Custody Act,
however, trial courts must consider the ten factors listed in subsection
5337(h)” 4 when considering “whether it is in the best interest of the child to
(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.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party’s effort to protect a child from
abuse by another party is not evidence of unwillingness
or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a)(1)-(16).
4
Section 5337(h) provides:
(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.
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move with the custodial parent outside of the jurisdiction . . . .” Id. at 79,
81 n.3; see also C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012).
The Custody Act defines “relocation” as “[a] change in a residence of the
child which significantly impairs the ability of a nonrelocating party to
exercise custodial rights.” 23 Pa.C.S. § 5322(a).
Father lives in Glenwood, Illinois, and Children lived with Mother in
Pittsburgh. On June 5, 2013, he filed a motion for special relief in which he
requested, inter alia, primary physical custody of Children. On July 31,
2013, the trial court entered an order indicating that it would treat Father’s
motion as a petition for modification of custody and for relocation. Order,
7/31/13. In response to a prior petition to modify custody filed by Father,
the trial court stated:
The [c]ourt notes that this is not a traditional relocation
case in that neither parent is seeking to move.[5] Father’s
request for primary physical custody, however, would
require the children to move from Pittsburgh, Pennsylvania
to Glenwood, Illinois, and said move would significantly
impair the ability of Mother to exercise her custody rights.
As such, this [c]ourt believes that Father’s requested
action falls within the definition of “relocation” as set forth
in 23 Pa.C.S.[ ] § 5322. The [c]ourt must therefore
analyze the ten (10) factors set forth in 23 Pa.C.S.[ ] §
(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S. § 5337(h)(1)-(10) (emphasis added).
5
We note that in the court’s January 16, 2014 findings of fact, issued
following the hearing on relocation and custody, the court stated: “Father
himself is not relocating.” Findings of Fact, 1/16/14, at ¶ 102.
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5337(h) in evaluating Father’s request for primary
custody.
Findings of Fact, 12/11/12, at ¶ 68.
We disagree with the trial court’s conclusion that Father’s motion for
special relief should have been treated as a petition for relocation. Our case
law interpreting the Custody Act has construed the statutory language to
apply to situations where a custodial parent seeks to physically relocate with
the child. See, e.g, C.M.K., 45 A.3d at 422 (holding mother’s proposed
move constituted relocation because it significantly impaired father’s ability
to exercise his current custodial rights (emphasis added)); E.D., 33 A.3d at
74; A.V. v. S.T., 87 A.3d 818, 819 (Pa. Super. 2014). However, in the
instant case, both Father and Mother are “nonrelocating part[ies],” as Father
continues to reside in the marital residence in Illinois and Mother continues
to reside in Pittsburgh. See 23 Pa.C.S. § 5322(a). Accordingly, we
conclude that Father’s motion for special relief should not have been treated
as a petition for relocation under the Custody Act. Therefore, Mother’s
claims that the trial court erred by overlooking Father’s failure to file a notice
of proposed relocation and considering the relocation factors is without
merit. However, we hold the court properly construed Father’s motion as a
petition to modify custody.
For Mother’s third issue on appeal she claims the trial court erred in
determining that awarding Father primary custody of Children is in their best
interests. Mother’s Brief at 9. Specifically, she argues the trial court’s
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conclusions under each of the enumerated Section 5328(a) factors are not
reasonable. Id. at 10. Mother alleges the trial court overemphasized her
alleged failure to encourage Children to contact Father and “placed
overwhelming focus on J.C.W.’s need for specialized schooling . . . .” Id.
Mother is not entitled to relief.
Instantly, after careful review of the record, including the notes of
testimony from the January 9, 2014 hearing, the parties’ briefs and the well-
reasoned decision of the Honorable Donald R. Walko, Jr., we affirm on the
basis of the trial court’s decision. See Trial. Ct. Op. at 18-22 (finding (1)
Father more likely to encourage contact between Children and Mother; (2)
Father would perform parental duties as primary custodian; (3) status quo
harmful to Children’s best interest; (4) Mother attempted to turn Children
against Father; and (5) Mother unable to attend to special needs of J.C.W.).
The trial court comprehensively addressed each of the Section 5328(a)
factors and we discern no abuse of discretion by the trial court. See C.R.F.
45 A.3d at 443.
For her fourth issue, Mother claims the trial court erred by entering an
order that requires her to travel from Pittsburgh to Illinois for the majority of
her custodial time with Children.6 Mother’s Brief at 11.
6
We note the trial court made the following, inter alia, findings of fact:
“Father testified that he has worked as a flight attendant with United Airlines
for twenty (25) years. Father further credibly testified that he is able to
obtain low-cost buddy passes through his work if Mother ever wished to fly
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The trial court opined as follows:
The [c]ourt initially reminds Mother that this jurisdiction
abides by a “best interests of the child” standard, not a
“best interest of the parent” standard.
The [c]ourt concluded in its January 16, 2014 [f]indings
of [f]act that the best interest of [Children] would be
served by providing Father with primary physical custody
and Mother with extended periods of partial physical
custody. The [c]ourt then considered how this custody
arrangement could best be effectuated. As noted in the
[c]ourt’s [f]indings of [f]act, Pittsburgh, Pennsylvania and
Glenwood, Illinois are approximately seven (7) hours and
four (4) minutes apart by car. While the [c]ourt
determined that Mother should be able to exercise custody
of [ ] Children on as frequent a basis as Father was
granted in the December 10, 2012 [o]rder of [c]ourt, the
[c]ourt also determined that it would not be suitable for [ ]
Children to be regularly transported back and forth
between Illinois and Pittsburgh, as such travel would be a
recurring, unreasonable disruption to their everyday lives.
The [c]ourt, therefore, entered an [o]rder that provides
that Mother may exercise custody of [ ] Children in Illinois
every other weekend. During Mother’s longer custodial
periods (e.g., Spring Break, Summer Vacation, and holiday
breaks), she is able to exercise custody of [ ] Children in
Pittsburgh.
Trial Ct. Op. at 12-13 (emphasis supplied). We discern no abuse of
discretion. See C.R.F., 45 A.3d at 443.
Last, Mother argues the trial court erred and abused its discretion by
not taking Children’s testimony at the January 9, 2014, hearing. With
respect to this allegation of error, the trial court stated:
to the Chicago area to visit with [ ] children.” Findings of Fact, 1/16/14, at ¶
76.
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The latest custody proceeding in this case occurred on
January 9, 2014.[ ] The prior custody proceeding took
place on November 15 and 16, 2012, approximately one
(1) year and two (2) months before the more recent
hearing. [A.P.W.] and [J.C.W.] testified at the first
proceeding on November 16, 2012. When contemplating
whether to interview [ ] Children at the January 9, 2014
proceeding, the Court determined that exposing the stress
of another custody hearing to [ ] Children would not be in
their best interest, especially in consideration of the short
time period between the trials. Nor did either party
request that [ ] Children be interviewed or testify at
the second custody proceeding.
Trial Ct. Op. at 23 (emphasis added).
This Court has stated:
“Failure to timely object to a basic and fundamental error .
. . will result in waiver of that issue. On appeal, the
Superior Court will not consider a claim which was not
called to the trial court's attention at a time when any
error committed could have been corrected. The principle
[sic] rationale underlying the waiver rule is that when an
error is pointed out to the trial court, the court then has an
opportunity to correct the error.”
M.O. v. J.T.R., 85 A.3d 1058, 1061 (Pa. Super. 2014) (citation omitted).
Mother did not raise this issue at the time of trial. Therefore, we find
this issue waived. See id.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 9/16/2014
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