C.T. v. A.W.T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.T. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.W.T. :
:
Appellant : No. 2716 EDA 2019
Appeal from the Order Entered August 20, 2019,
in the Court of Common Pleas of Philadelphia County,
Domestic Relations at No(s): No. 0C1500178.
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 30, 2020
In this matter, Appellant A.W.T. appeals from the trial court’s order,
which denied her petition to relocate with the parties’ six-year-old daughter,
S.T. (Child), but granted, in part, the request of Appellee C.T. to modify
custody.1 Because the court did not conduct a full hearing, we vacate the
order and remand for further proceedings.
The record discloses the relevant factual and procedural history:
Child was born in June 2013. Although the record is unclear whether
the parties ever married, testimony revealed that they ended their relationship
at some point in 2014. Recent history began with the previous custody
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* Retired Senior Judge assigned to the Superior Court.
1 The parties, both women, were in a same-sex relationship when Child was
born, and they are Child’s legal parents. The record indicates that A.W.T. is
the biological mother of Child, and C.T. is the adoptive mother.
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arrangement, which the parents entered into by consent order on August 16,
2018. The order provided primary custody to A.W.T. and partial physical
custody to C.T. every other weekend from Friday to Sunday and alternate
weekends from Friday to Saturday. The parties shared legal custody. The
order further provided that the parties may change custody by mutual
agreement.
In April 2019, A.W.T. filed a notice of a proposed relocation, seeking to
move with Child from the Philadelphia area to North Chesterfield, Virginia,
near Richmond. C.T. objected and filed the requisite counter-affidavit; she
also filed a petition to modify the 2018 custody consent order. Subsequently,
A.W.T. filed her own modification petition. The trial court consolidated the
three pending petitions and held a hearing on August 20, 2019. Both parties
appeared with counsel.
During the hearing, A.W.T. initiated her case-in-chief for relocation by
her direct examination. A.W.T.’s testimony began with pertinent information
regarding Child’s current and previous custody arrangements and the
potential benefits Child would receive if the court granted her request to
relocate. A.W.T. testified that her current day job is with Verizon, but that
she also assists women during labor as a doula.2 She explained that the
reason she sought relocation to Virginia is because she wants to advance her
career as a midwife. According to A.W.T., it is illegal to be a lay midwife in
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2A doula is a person trained to provide advice, information, emotional support,
and physical comfort to a mother before, during, and just after childbirth.
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Pennsylvania, whereas in Virginia, she could obtain a certified professional
midwife certificate without first having to become a registered nurse. See
N.T., 8/20/19, at 12. A.W.T. also testified that she would have familial support
in Virginia, including her fiancée, who already resides there. Id. at 26.
The court interjected throughout A.W.T.’s testimony. Most critically, the
court asked A.W.T. whether Delaware, New Jersey, or Maryland have similar
midwife programs to that of Virginia, the inference being that she could still
advance her career without relocating Child. Id. at 42. A.W.T. explained that
while those states did have a similar program, Virginia was unique for several
reasons, including the fact that she would have a support network. Id. at 43.
The trial court then questioned A.W.T.’s motives directly. As A.W.T.
attempted to explain why Virginia was a more suitable choice, the court
ultimately stopped hearing A.W.T.’s case-in-chief and concluded that A.W.T.’s
proposed relocation was “invalid” as it determined that A.W.T.’s true
motivation was to be with her fiancée. See N.T., at 60, 65, 75, 76. A.W.T.
did not present any other witnesses or evidence. C.T. did not cross-examine
A.W.T., nor did C.T. take the stand.
The court immediately transitioned to C.T.’s petition to modify custody.
But instead of hearing from witnesses or allowing the parties to present their
evidence, the trial court essentially limited the modification portion of the
proceeding to arguments from counsel. See N.T. at 76-87. The court then
announced it would keep primary custody with A.W.T. Id. at 87-88.
Thereafter, the court elicited further argument from the attorneys and asked
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questions of the parents as it ironed out the finer details, including holiday
and summer vacation. Id. at 88-94. The court announced that its order would
be ready soon, and the court officer asked the parties to step out. Id. at 95.
The custody order was issued the same day.
The order denied A.W.T.’s petition to relocate, kept primary custody with
A.W.T., but adjusted the weekend schedule. C.T. was awarded partial custody
every weekend, Friday afternoon to Monday morning, except for the third
weekend, which belonged to A.W.T. Most drastically, the court divided the
summer schedule in half, granting each parent six consecutive weeks of
physical custody, which A.W.T. had proposed if relocation was granted.
The court did not delineate its reasons for its decision under either 23
Pa.C.S.A. § 5337(h) (relating to the relocation factors) or 23 Pa.C.S.A. §
5328(a) (relating to the custody factors). See 23 Pa.C.S.A. § 5323(d). Even
after A.W.T. filed her timely notice of appeal, the court did not analyze the
pertinent factors.
A.W.T. raises the following issues for our review, which we reorder for
ease of disposition:
1. Where the court did not hold a full and complete
hearing on the proposed relocation as required by 23
Pa.C.S.A. § 5337(g)(1) and Pa.R.C.P. 1915.17, did it
abuse its discretion and commit legal error?
2. Where the trial court granted in the part [C.T.’s]
petition to modify custody without holding a full and
complete hearing on the custody petitions, did the
trial court abuse its discretion and commit legal error?
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3. Where the trial court failed to give proper weight to
the evidence and testimony of the witnesses, did it
abuse its discretion and commit legal error?
4. Where the trial court’s opinion failed to delineate its
findings with respect to the relocation factors in 23
Pa.C.S.A. § 5337(a), did it commit legal error?
5. Where the trial court’s opinion fails to delineate its
findings pursuant to the custody factors in 23
Pa.C.S.A. § 5328[,] did it abuse its discretion and
commit legal error?
A.W.T.’s Brief at 4.
Our scope and standard of review of child custody orders are settled:
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.
S.T. v. R.W., 192 A.3d 1155, 1160 (PA. Super. 2018) (citation omitted).
Our review differs when an appellant presents a due process challenge:
A question regarding whether a due process violation
occurred is a question of law for which the standard of
review is de novo and the scope of review is plenary.
Id. (citations omitted).
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A.W.T.’s first two issues pertain to the trial court’s process, and thus we
address those issues contemporaneously. A.W.T. contends that the trial court
committed reversible error when it failed to conduct a full hearing on her
relocation petition and the parties’ cross-filed modification petitions. She
alleges the court abruptly denied her relocation, in the middle of her direct
examination and before she presented all of her evidence, without addressing
all of the relocation and custody factors. Similarly, A.W.T. asserts that the
court then granted, in part, C.T.’s petition for modification without conducting
a full hearing.
It is well-settled that the trial court must consider all 10 relocation
factors and all 16 child custody factors when making a decision on relocation
that also involves a custody decision. See A.M.S. v. M.R.C., 70 A.3d 830, 836
(Pa. Super. 2013); see also 23 Pa.C.S.A. § 5337(h)(1-10); and see 23
Pa.C.S.A. § 5328(a)(1-16). Moreover, “[i]f a counter-affidavit regarding
relocation is filed with the court which indicates the nonrelocating party
objects either to the proposed relocation or to the modification of the custody
order […], the court shall modify the existing custody order only after
holding a hearing to establish the terms and conditions of the order pursuant
to the relocation indicating the rights, if any, of the nonrelocating parties.” 23
Pa.C.S.A. § 5337(f) (emphasis added). The trial court “shall hold an expedited
full hearing on the proposed relocation after a timely objection had been filed
and before the relocation occurs.” See 23 Pa.C.S.A. § 5337(g)(1)(emphasis
added).
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In custody hearings, parents have at stake fundamental rights: namely,
the right to make decisions concerning the care, custody, and control of their
child. S.T., 192 A.3d at 1160-1161 (citing Troxel v. Granville, 530 U.S. 57(2000); see also U.S.C.A. Const. Amends. 5, 14; and see generally D.P. v.
G.J.P., 146 A.3d 204 (Pa. 2016)).
Due process must be afforded to parents to safeguard these
constitutional rights. “Formal notice and an opportunity to be heard are
fundamental components of due process when a person may be deprived in a
legal proceeding of a liberty interest, such as physical freedom, or a parent's
custody of her child.” S.T., 192 A.3d at 1161 (citing J.M. v. K.W., 164 A.3d
1260, 1268 (Pa. Super. 2017) (en banc). Moreover, both notice and an
opportunity to be heard must be afforded at a meaningful time in a
meaningful manner. Id. at 1164 (emphasis original) (citation omitted).
Without notice and an opportunity to be heard, a party cannot properly
advocate his or her position, nor expose all relevant factors from which the
finder of fact may make an informed judgment. See id. (citing Everett v.
Parker, 889 A.2d 578, 580 (Pa. Super. 2005)). That said, due process is
flexible and calls for such procedural protections as the situation demands. Id.
at 1161.
The instant hearing addressed three petitions: A.W.T.’s relocation
petition and the parties’ respective modification petitions. In other words, the
court was obligated to conduct a full hearing and analyze both the relocation
factors under Section 5337(h) as well as the custody factors under Section
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5328(a). Due process attached, and with it the mandate that each party have
an opportunity to heard in a meaningful manner.
Examination of A.W.T.’s claims necessitates a de novo review of the cold
transcript. In our review, we have discovered a lack of procedural due
process. Throughout A.W.T.’s direct examination, the court frequently
interjected. A certain level of interaction is entirely appropriate and
necessary, especially when the court sits as the finder of fact and must
manage the proceedings in the interest of judicial economy. Here, however,
the court adopted an increasingly adversarial role.
For instance, A.W.T.’s testified that the proposed elementary school in
Virginia has a farming program, which would provide a unique opportunity for
Child, as Child has shown an interest in the birthing of farm animals. See N.T.
at 36; see also 23 Pa.C.S.A. § 5337(h)(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”). The court
interposed with its own knowledge of farm life, doubting that Child could be
legitimately interested, and suspected that Child only told A.W.T. this interest
because A.W.T. was involved with midwifery. See N.T. at 36-40.
In another instance, A.W.T. attempted to explain that she and Child
moved back to her mother’s home so Child could attend a better school and
out of the “hustle and bustle of Philadelphia, because it is dangerous in
Philadelphia.” Id. at 64-65. The court interrupted:
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The Court: Oh, please […] Do not go down that road. […]
I have lived here for 30 years. […] Nothing
has happened to me, and I don’t find the city
of Philadelphia to be some dangerous,
horrible place. Oh yeah, there you – go
ahead, roll your eyes.
Id. at 65.
A.W.T. denied rolling her eyes. The court stated that crime happens
everywhere and alluded to the killing of a protester during a white supremacist
rally in Charlottesville, Virginia. The court then stated rhetorically, “I forgot,
[A.W.T.’s] going to be in the elite Chesterfield County, as if somehow – that
they wiped it clean of crime.” Id. at 65-66.
At this point, the court revisited A.W.T.’s motivation for seeking
relocation. The court concluded that the A.W.T. was not credible, and that
her real motivation for the propose relocation was A.W.T.’s desire to be with
her fiancée:
The Court: All I’m saying is, at this point, I don’t
have any belief that you are relocating
because you’re doing it for career
reasons. I don’t believe you, not based
on what I just read, and not based on
your own testimony. It looks like your
career moves are basically whatever is
going to work to get you and your new
partner down [in] Virginia.
Id. at 66-67.
A.W.T. had already testified about her motivation. See 23 Pa.C.S.A. §
5337(h)(8) (“The reasons and motivation of each party for seeking or
opposing the relocation.”); see generally N.T. at 12-16, 42-43, 46-58. She
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had explained that Virginia allows those with a certified professional midwife
certificate direct entry into the field without first becoming a registered nurse.
Id. at 55. A.W.T. had testified that she does not have this certificate, that
she would have to complete a program to ascertain one, and that she already
began a registered nurse program. These facts notwithstanding, A.W.T.
testified that completion of a certified professional midwife program was still
the fastest way she could enter the field. A.W.T. conceded that closer states,
like New Jersey, Maryland, and Delaware, have similar programs to that of
Virginia. Id. at 42. However, A.W.T. had testified that midwifery in these
states poses a different set of problems, because a midwife’s services are not
covered by insurance, limiting the clientele to the affluent; A.W.T. intends to
work primarily with lower income individuals and people of color. Id. at 42,
47. A.W.T. testified that Virginia offers insurance coverage. Id. at 47-48.
Furthermore, A.W.T. had also testified that Virginia is the best
opportunity because her new career would require a necessary support
system. Id. at 42-43. Presumably, A.W.T. would retain her job with Verizon
while she completes the midwifery program (A.W.T. had testified that Verizon
approved a transfer to Virginia and that the change of roles was a promotion).
Id. at 30. She explained that her aunt, family friends, and other personal
friends would live in close proximity to her proposed location in Virginia. Id.
at 25. And, most critically for the court, A.W.T. had also testified that her
fiancée lives there. Id. at 26.
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When A.W.T. attempted to explain these nuances, in response to the
court’s inquires, the court hardly allowed A.W.T. to finish her sentences. See
id. at 53-66. The court ultimately deemed this reason to be “not valid.” See
N.T. at 75; see also id. at 71. Notwithstanding the court’s statement, it was
unclear whether the court found the entire proposed relocation to be invalid
or whether the court found A.W.T.’s position on Section 5337(h)(8)(relating
to motivation) to be unpersuasive:
The Court: She doesn’t have to go to Virginia. I’m
not finding that to be a valid relocation.
I’m not finding that that is in the best
interest of the child, because I think
her motivation is not acting in the
child’s best interest.
Id. at 75.
Although this exchange occurred during A.W.T.’s direct examination,
C.T.’s counsel then immediately launched into her petition, without requesting
to cross-examine A.W.T.:
C.T.’s Counsel: Your Honor, [C.T.] is requesting
primary custody, regardless of the
results of the relocation, just to be
clear on our position.
Id. at 75-76.
Counsel for A.W.T. felt compelled to respond:
A.W.T.’s Counsel: And our argument definitely would be
that [C.T.] should not have primary
custody of [Child].
Id. at 76.
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Only then did the court state clearly that it was not going to grant the
relocation and, in the same breath, proceeded to C.T.’s modification petition:
The Court: Ok. So, I’m not going to grant the
relocation. So, she doesn’t want to
give her primary. I understand that.
She’s been the primary for a while. Is
there any possibility of increasing the
amount of time that [C.T.] is getting,
over what she has now?
Id.
Counsel for C.T. responded first, outlining the reasons C.T. sought
primary custody. Id. at 76. During this response, counsel for A.W.T. objected.
Neither the court nor C.T. waited to address the objection, and we cannot
discern whether the objection concerned the court’s process or whether the
objection concerned opposing counsel’s averment. Id. at 76-77. Such was
indicative of the haphazard process.
From this juncture onward, the court engaged in an informal dialogue
with both the litigants and their respective counsels, eliciting their specific
preferences on custody as the court made rapid decisions. See id. at 77-93.
Neither parent took the stand, and as far as we can tell, C.T. was never
actually sworn in. Just as the court terminated the relocation portion of the
hearing, so did the court abruptly decide custody. See id. at 87-88.
In response to A.W.T.’s argument that she was deprived of a full
hearing, the trial court explained that it denied A.W.T.’s proposed relocation,
because A.W.T. brought it “solely for the purpose of pursuing a romantic
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relationship with her new paramour.” See T.C.O., 10/10/19, at 3.3 Thus, the
court determined that A.W.T. “failed to meet her burden regarding the
proposed relocation” under 23 Pa.C.S.A. § 5337(i). Id. at 4. Notably, the
court opines it reached this decision “[u]pon [A.W.T.] concluding her
testimony[.]” Id. at 3. The court posits that, in any event, if A.W.T. desired
to supplement the record, she forfeited her chance with her silence when the
court asked if there was anything else before ending the proceedings. Id. at
5; see also N.T. at 95. Finally, the court concludes that the resulting modified
custody order “occurred as a result of an agreement between the parties,
which the [previous August 2018 custody] order permits.” T.C.O. at 4-5.
C.T.’s argument tracks that of the trial court. She argues that A.W.T.
failed to object to the denial of her relocation, and that A.W.T. waived her
challenge to the custody modification because she agreed to the modified
order. See C.T.’s Brief at 5-6. “At no point during the hearing did counsel for
A.W.T. indicate that A.W.T. objected to the agreed modification. In fact,
A.W.T. and her counsel were active participants in the negotiation of the
agreement regarding custody modification.” Id. at 6 (citation to the record
omitted).
We disagree with C.T. and the trial court’s portrayal of events. The
characterization that A.W.T. finished her case-in-chief, or that she consented
to the modified order, is supremely disingenuous. We conclude that A.W.T.
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3 We observed that A.W.T. testified that she and her fiancée have been
together for over two years and have known each other since A.W.T. was 14
years old. See N.T. at 26.
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was not afforded an opportunity to be heard in a meaningful manner. See
S.T., supra. We disagree that A.W.T. waived this challenge for failing to
preserve the issue by objection. For one, we note that A.W.T. did object,
about some issue, but that objection went unheeded. As the testimony
revealed, it would be impossible for a party to object to the lack of opportunity
to be heard while being deprived of the same. We certainly do not agree with
the court’s depiction that A.W.T. concluded her testimony, so much as the
court concluded it for her.
Given the incomplete hearing, we also disagree with the court’s
conclusion that A.W.T. failed to meet her burden for relocation. A party’s
motivation is, of course, a legitimate factor that the court must consider in its
the relocation analysis. See 23 Pa.C.S.A. § 5337(h)(8). We also recognize
that this Court defers credibility and weight determinations to the trial court.
See, e.g., C.M. v. M.M., 215 A.3d 588, 591 (Pa. Super. 2019). We cannot
affirm the court’s denial of relocation, however. Even if the trial court assigned
dispositive weight to the motivation factor, the court prevented A.W.T. from
presenting the rest of her case.4
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4 For this reason, we need not address C.T.’s counterargument that the court
actually considered all the relevant factors. We mention it here, however, for
two reasons. First, we disagree that the court considered anything but
A.W.T.’s motivation for relocation. Although the court did not delineate its
reasons for its decision, pursuant to 23 Pa.C.S.A. § 5323(d), it appears from
the court’s Rule 1925(a) opinion that this was the sole factor. See T.C.O. at
4, 6, 8. Second, and more concerning, is C.T.’s use of creative license in her
Brief. For instance, C.T. argues that “the court correctly considered that there
is an established pattern of conduct by A.W.T. to thwart the relationship of
the child and the other party[,]” pursuant to Section 5337(h)(5). See C.T.’s
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Relocation aside, we must also address the court’s process as it pertains
to the modification of custody. C.T. argues A.W.T. waived her claim by
engaging in the process of what she describes as a mediation. See C.T.’s Brief
at 4. Similarly, the trial court concluded A.W.T. waived her claim by remaining
silent when the court concluded the proceeding by asking if there was anything
else. See N.T. at 95. Again, we do not agree with the assertion made by C.T.
and the trial court that A.W.T. consented to the modified order. See C.T.’s
Brief at 6; see also T.C.O. at 7. This is factually inaccurate. Nowhere does
the order reference A.W.T.’s consent. Moreover, because the proceeding
devolved from an evidentiary hearing into an oral argument, A.W.T. could no
longer make proper objections. We also note that a certain point, a party
cannot be expected to repeatedly voice its concerns without jeopardizing its
position by further agitating the court. For instance, when the court decided
to award six weeks of consecutive summer custody to each party, without
input from A.W.T., her counsel raised the concern:
A.W.T.’s Counsel: Your Honor, I would – I would
ask for there not be six weeks
consecutive time. I think that’s
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Brief at 12. But upon closer inspection, C.T. merely cites the portion of the
transcript where the court noted that it read the parties’ pre-trial memoranda.
See N.T. at 9. C.T. concludes that because her pre-trial memorandum
documented A.W.T.’s alleged efforts to thwart the relationship, and because
the court read this pre-trial memorandum, then it follows that the court found
the same. See C.T.’s Brief at 12. The court made no such finding, and C.T.
comes dangerously close to misrepresenting the record to this Court. See also
C.T.’s Brief at 11-12 (paraphrasing the testimony and stating that the court
considered Child’s preference under Section 5337(h)(4) even though the court
did not interview Child).
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a lot of time for a six-year-old to
be away from either parent.
The Court: All right, well, you’re overruled.
N.T. at 92-93
Thus, we conclude that the court’s process during the modification
portion of the consolidated hearing also deprived A.W.T. an opportunity to be
heard in a meaningful manner. The court was obligated to conduct a full
hearing on the merits of these petitions. When it did not do so, the court
inadvertently violated A.W.T.’s right to procedural due process and therefore
committed reversible error. On remand, the court shall conduct a full hearing
on A.W.T.’s proposed relocation and on both parties’ respective petitions for
modification.
To be clear, nothing in this decision should be construed as favoring or
disfavoring either party’s position on relocation or modification. The hearing
was incomplete, so we refrain from commenting on A.W.T.’s final issues;
namely, whether the court’s determination of A.W.T.’s motivation was
supported by the record and whether the court failed to delineate its reasons
for the custody award, pursuant to 23 Pa.C.S.A. § 5323(d). We caution,
however, that Section 5323(d) applies to cases involving custody and
relocation. A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (emphasis
added) (citation omitted).
As a final matter, we note that A.W.T. has not sought the trial court’s
recusal, and when no such request is made, this Court has no authority to
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remove a trial judge. See Commonwealth v. Whitmore, 912 A.2d 827,
834 (Pa. 2006). Given our disposition and the fact that the trial court made
specific credibility determinations, the court might consider for itself whether
it still possesses the ability to be a neutral arbiter of this matter.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Strassburger joins this memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2020
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