Oliver, E. v. Oliver, K. ( 2023 )

J-A14026-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ERIC JAMES OLIVER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KRISTINA RASHELLE OLIVER : No. 172 EDA 2023
Appeal from the Order Entered December 16, 2022
In the Court of Common Pleas of Wayne County Civil Division at No(s):
2019-30148
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
JUDGMENT ORDER BY DUBOW, J.: FILED JUNE 12, 2023
Eric James Oliver (“Father”) appeals from the December 16, 2022 order
that, inter alia, granted the petition to modify custody filed by Appellee,
Kristina Rashelle Oliver (“Mother”), and awarded primary physical custody of
the parties’ four minor children to Mother effective July 1, 2023, requiring the
children to move from Pennsylvania to Arizona. Upon review, we vacate and
remand for the trial court to engage in an analysis of the relevant 23 Pa.C.S.
§ 5337 relocation factors.
The pertinent factual and procedural history is as follows. Mother and
Father are parents to 12-year-old K.O., 11-year-old K.O., 8-year-old E.O. and
5-year-old E.O (the “Children”). The parties lived together and were married
until they separated in 2019. In November 2019, the parties agreed that
Father would have primary physical custody of the Children during the week
and Mother would have partial physical custody of the Children every
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weekend. The parties eventually disagreed about the custody arrangement,
prompting Father to petition the court. On March 3, 2020, the trial court
granted Father’s petition for special relief, awarded the parties shared legal
custody, and awarded Father primary physical custody. Soon thereafter,
Mother filed a petition to relocate to Arizona, which the trial court denied after
a hearing. Three months later, despite informing the court that she would
remain in Pennsylvania if the court denied her relocation petition, Mother
moved to Arizona without the Children.
In December 2020, the parties reached a custody agreement providing
that Mother would have partial physical custody of the Children for six weeks
in the summer of 2021 and for one week during Christmas of 2021.
On July 1, 2022, Mother filed a petition for modification seeking primary
physical custody of the Children. The court held a custody trial over two days.
On December 16, 2022, the trial court issued an Opinion and Order that
considered the 23 Pa.C.S. § 5328 (a) custody factors, granted Mother’s
petition, awarded Mother primary physical custody of the Children, and
ordered the Children to move to Arizona effective July 1, 2023.
Father timely appealed. Both Father and the trial court complied with
Pa.R.A.P. 1925.
Father raises various issues for our review, including a claim that the
trial court failed to consider the impact of Mother’s relocation to Arizona, which
is dispositive of our disposition. Father’s Br. at 6.
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The Custody Act mandates that a trial court must consider seventeen
custody factors when deciding a petition for custody and ten relocation factors
when deciding a petition for relocation. See 23 Pa.C.S. §§ 5328(a), 5337(h).
“The party proposing the relocation has the burden of establishing that the
relocation will serve the best interest of the child[.]” 23 Pa.C.S. § 5337(i)(1).
Notably, “a custody case where neither parent is seeking to relocate and only
the children would be moving a significantly distant location if custody shifted
from one parent to another does not per se trigger [S]ection 5337” and its
notice requirements. D.K. v. S.P.K., 102 A.3d 467, 477 (Pa. Super. 2014).
Nevertheless, “[i]n a custody case where neither parent is relocating, but the
children stand to move a significant distance, trial courts should still
consider the relevant factors of [S]ection 5337(h) in their [S]ection
5328(a) best interests analysis.” Id. at 476 (emphasis added). This Court
has acknowledged, “several of the relevant factors of [S]ection 5337(h) are
encompassed, directly or implicitly, by the custody factors listed in [S]ection
5328(a).” Id. at 478. However, “[a]ny relevant [S]ection 5337(h) factor that
is not expressly encompassed in [S]ection 5328(a) should be considered by
the trial court under the catchall provision of [S]ection 5328(a)(16).” Id.This court has explained:
[I]n any custody determination where neither parent is moving,
but the children stand to move to a significantly distant location,
the trial court would still need to consider the age, developmental
stage, needs of the child and the likely impact the child’s change
of residence will have on the child’s physical, educational and
emotional development [pursuant to Section 5337(h)(2)], the
feasibility of preserving the relationship between the other parent
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and the child [pursuant to Section 5337(h)(3)], and whether the
change in the child's residence will enhance the general quality of
life for the child [pursuant to Section 5337(h)(7)]. Even though
these three factors are not directly or implicitly encompassed in
[S]ection 5328(a), they are clearly relevant to the decision of what
is in the child’s best interest when contemplating a move of
significant distance to the other parent’s home, and are therefore
necessarily part of the trial court’s analysis pursuant to [S]ection
5328(a)(16), which requires a trial court to consider “any other
relevant factor” in making a custody determination.
Id. at 477.
Instantly, the trial court ordered a change in custody that will require
the Children to move a significant distance from Pennsylvania to Arizona.
While the trial court analyzed the Section 5328(a) custody factors, the court
failed to analyze the relevant Section 5337(h) relocation factors as required.
Accordingly, we are constrained to remand this case for the trial court to
engage in an analysis of the relevant Section 5337(h) relocation factors
contemporaneously with the Section 5328(a) custody factors. As over six
months have elapsed since the trial court last heard evidence from the parties,
the court may schedule a hearing for additional evidence if necessary.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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