Ressler, S. v. Eppley, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHAWNA A. RESSLER, NOW : IN THE SUPERIOR COURT OF
SHAWNA A. RIOPELLE : PENNSYLVANIA
:
Appellant :
:
v. :
:
TRAVIS L. EPPLEY :
:
Appellee : No. 131 WDA 2021
Appeal from the Order Entered December 23, 2020
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2014-299
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED: July 2, 2021
Appellant, Shawna A. Ressler, now Shawna A. Riopelle (“Mother”),
appeals from the order entered in the Cambria County Court of Common Pleas,
denying her request to relocate with the parties’ minor child, L.A.E. (“Child”).
We affirm.
The relevant facts and procedural history of this appeal are as follows.
Mother and Appellee, Travis L. Eppley (“Father”), dated for approximately
three years, and Child was born in 2011. The parties separated in 2013. By
custody order entered July 31, 2019, the parties have shared legal custody of
Child. Mother has primary physical custody, subject to Father’s periods of
partial custody every other weekend. Father is also afforded additional
custody periods “as the parties may mutually agree.” (Order, entered
7/31/19, at 5).
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Father lives in Cambria County and works as a forklift operator at a retail
distribution center. Father has been in a relationship with his current partner
for almost five years. Mother also lives in Cambria County. She worked as
an engineering consultant, supporting the Pennsylvania National Guard, but
her government contract terminated. In 2020, Mother married Justin Riopelle
(“Stepfather”), who is a sergeant in the United States Army. Stepfather is
currently stationed in Hawaii, but he is scheduled for relocation in 2022.
On April 27, 2020, Mother filed a notice of proposed relocation, seeking
to move to Hawaii with Child. Father filed a counter-affidavit on May 4, 2020,
objecting to relocation or modification of custody. On July 24, 2020, the court
conducted a summary hearing via Zoom. By opinion and order entered July
30, 2020, the court denied Mother’s request to relocate.
Mother subsequently requested a full evidentiary hearing, which the
court conducted on November 6, 2020. As part of the hearing, the court
interviewed Child outside the presence of counsel or the parties. On December
23, 2020, the court issued another order and opinion denying Mother’s request
to relocate. Mother timely filed a notice of appeal and concise statement of
errors complained of on appeal on January 22, 2021.
Mother raises the following issues for our review:
Did the trial court abuse its discretion and make an error of
law in finding the Father’s testimony credible pertaining to
the integrity of Father’s motives in opposing relocation?
Was the trial court’s decision to deny relocation against the
sufficiency of the evidence?
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Was the trial court’s decision to deny relocation against the
weight of the evidence such that the conclusion of the trial
court was unreasonable in light of the evidence?
(Mother’s Brief at 8).
In her three issues, Mother asserts that Father failed to provide a reason
for his opposition to relocation when testifying at the November 6, 2020
hearing, and the court failed to address this omission in its subsequent order
and opinion. Further, Mother emphasizes that Father provided inaccurate
testimony on multiple occasions during the full evidentiary hearing. Mother
insists that Father lied about his marital status, his influence on Child’s
religious beliefs, how often he sees Child, and what activities he participates
in with Child. Although Mother acknowledges that the court is to be given
latitude in making credibility determinations, she maintains it was
unreasonable to credit Father’s testimony under these circumstances.
Mother also claims that the court did not properly weigh all relevant
evidence, including Father’s inability to provide a reason for opposing
relocation and his status as a convicted felon. Regarding Father’s relationship
with Child, Mother insists that Father does not spend as much time with Child
as he claims, he rarely exercises his custodial rights, and he performs few
parental duties. Additionally, in the event of relocation, Mother contends she
will pay for all flights and make all arrangements for Child to visit Father.
Mother argues that her willingness to cover all travel expenses for Child is a
valid reason to approve relocation. Based upon the foregoing, Mother
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concludes that the court’s denial of her relocation petition is against the weight
and sufficiency of the evidence. We disagree.
In reviewing a child custody order:
[O]ur scope is of the broadest type and our standard is
abuse of discretion. This Court 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, this Court must defer
to the trial judge who presided over the proceedings and
thus viewed 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.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation
omitted).
“The trial court must consider all ten relocation factors and all sixteen
custody factors when making a decision on relocation that also involves a
custody decision.” A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa.Super. 2013).
With respect to a custody order, Section 5328(a) provides:
§ 5328. Factors to consider when awarding custody
(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
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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.
(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
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.
(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.
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(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.A. § 5328(a). In expressing the reasons for its decision, “there is
no required amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that the custody
decision is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331,
336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A
court’s explanation of reasons for its decision, which adequately addresses the
relevant custody factors, complies with Section 5323(d). Id.The Custody Act defines “relocation” as “[a] change in residence of the
child which significantly impairs the ability of a nonrelocating party to exercise
custodial rights.” 23 Pa.C.S.A. § 5322(a). Section 5337 sets forth the
procedures and factors governing relocation in relevant part as follows:
§ 5337. Relocation
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(a) Applicability.—This section applies to any
proposed relocation.
(b) General rule.—No relocation shall occur
unless:
(1) every individual who has custody rights to
the child consents to the proposed relocation; or
(2) the court approves the proposed relocation.
* * *
(d) Objection to proposed relocation.—
(1) A party entitled to receive notice may file
with the court an objection to the proposed relocation
and seek a temporary or permanent order to prevent the
relocation. The nonrelocating party shall have the
opportunity to indicate whether he objects to relocation
or not and whether he objects to modification of the
custody order or not. If the party objects to either
relocation or modification of the custody order, a hearing
shall be held as provided in subsection (g)(1). The
objection shall be made by completing and returning to
the court a counter-affidavit, which shall be verified
subject to penalties under 18 Pa.C.S. § 4904 (relating to
unsworn falsification to authorities), in substantially the
following form….
* * *
(h) Relocation factors.—In determining
whether to grant a proposed relocation, the court shall
consider the following factors, giving weighted consideration
to those factors which affect the safety of the child:
(1) The nature, quality, extent of involvement
and duration of the child’s relationship with the party
proposing to relocate and with the nonrelocating
party, siblings and other significant persons in the
child’s life.
(2) The age, developmental stage, needs of
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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.
23 Pa.C.S.A. § 5337(a)–(b), (d)(1), (h). Moreover,
[T]he party proposing relocation…bears the burden of
proving relocation will serve the children’s best interests.
See 23 Pa.C.S.A. § 5337(i). Each party, however, has the
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burden of establishing “the integrity of that party’s motives
in either seeking the relocation or seeking to prevent the
relocation.” 23 Pa.C.S.A. 5337(i)(2).
S.J.S., supra at 551. In all of these proceedings:
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the
trial court places on evidence. Rather, the paramount
concern of the trial court is the best interest of the
child. Appellate interference is unwarranted if the trial
court’s consideration of the best interest of the child
was careful and thorough, and we are unable to find
any abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal
citations omitted).
Instantly, the court conducted the summary hearing and considered all
custody and relocation factors, including Father’s motive for opposing
relocation. (See Trial Court Opinion, filed July 30, 2020, at 6-15; Trial Court
Opinion, filed February 19, 2021, at 6-9). Significantly, the court determined
that relocation would hinder Father’s ability to preserve his relationship with
Child:
Notwithstanding the efforts of Mother and [Stepfather] to
ensure Father’s custodial time, it is clear that relocation to
Hawaii with Child would indelibly change Child’s relationship
with Father. In all likelihood, the majority of Father’s
custody will take place in Pennsylvania. Because of the
distance between Hawaii and Pennsylvania, Father probably
will never be able to attend Child’s parent-teacher
conferences, school concerts, parent lunches, sporting
events, or lessons. Although Mother offered week-long and
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summer custody to Father, all of her proposed schedules
necessitate large gaps of time between visits. Father cannot
afford additional trips to Hawaii unless he plans financially
for a year, uses significant vacation time, and forges his own
family vacation. Father acknowledges that additional travel
to Hawaii is not easy or realistic. Despite Mother’s best
efforts, it is not feasible to fully preserve Father’s
relationship with Child if Mother relocates to Hawaii. This
factor does not favor Mother’s proposed relocation, and it is
the most significant basis for the [c]ourt’s decision.
(Trial Court Opinion, filed July 30, 2020, at 8-9) (internal quotation marks
omitted).1
The court later conducted a full evidentiary hearing. Following the
hearing, the court addressed the new evidence presented for its consideration,
which included Mother’s testimony about inaccuracies in Father’s testimony
from the summary hearing. In its final order and opinion, the court
acknowledged certain inconsistencies in Father’s testimony. Nevertheless,
such inconsistencies did not alter the outcome of the court’s relocation
analysis:
None of the additional evidence or testimony significantly
changes [the c]ourt’s analysis of the relocation and best
interest factors. Father probably overstated his
involvement in Child’s church attendance, which has been
halted by Father’s reasonable reaction to the coronavirus.
Father has a strong bond with Child regardless [of] whether
they went fishing two times or two dozen times. It doesn’t
matter whether Father and [his paramour] are legally
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1 Regarding Father’s opposition to relocation, the court later noted that “the
record contains ample testimony—from Mother, Father, and Child—that
demonstrates Father has genuine reasons for opposing Mother’s request to
relocate Child thousands of miles away.” (Trial Court Opinion, filed February
19, 2021, at 7).
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married or whether they engaged in a civil commitment
ceremony. It is clear from Child’s interview that she and
Father share a strong bond and that Child enjoys
participating in various activities with Father in what he
lovingly refers to as their “privileged time.”
[The c]ourt’s conclusion is unchanged: It is not feasible to
fully preserve Father’s relationship with Child if Mother and
Child relocate to Hawaii. This factor does not favor Mother’s
proposed relocation, and it continues to be the most
significant factor in the [c]ourt’s determination. To use
Mother’s own words, “You only get one Dad in life.”
(Trial Court Opinion, filed December 23, 2020, at 8-9) (internal record citation
omitted).
Despite the inconsistencies in Father’s testimony, the record supports
the court’s determination that Father and Child share a strong bond. As the
court properly considered the factors articulated in Sections 5328(a) and
5337(h), we see no reason to disturb the court’s decision. See S.J.S., supra;A.M.S., supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2021
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