M.J. v. S.G.B.

J. A10041/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
M.J., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 3177 EDA 2016
:
S.G.B. :
Appeal from the Order, September 9, 2016,
in the Court of Common Pleas of Monroe County
Civil Division at Nos. 1832 CV 2014, 260 DR 2014
BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 14, 2017
M.J. (“Father”) appeals from the September 9, 2016 order entered in
the Court of Common Pleas of Monroe County permitting S.G.B. (“Mother”)
to relocate with the parties’ minor son, A.G.J. (“Child”), from Monroe
County, Pennsylvania, to Havertown Township, Delaware County,
Pennsylvania. The order also awarded shared legal custody to the parties,
primary physical custody during the school year to Mother, and primary
physical custody during the summer to Father. After careful review, we
affirm.
The record reflects that Child was born to the parties out of wedlock in
March 2009. At the time of Child’s birth, Mother and Father lived together,
but then separated in 2010. Since their separation, Mother and Father have
equally shared physical custody of Child, having initially “created a 50-50 on
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paper.” (Notes of testimony, 8/26/16 at 8.) Thereafter, on June 18, 2014,
Mother and Father entered into a custody stipulation for shared legal and
physical custody of Child. The trial court approved the parties’ custody
stipulation by order of the same date. (Order of court, 6/18/14.)
The trial court set forth the subsequent procedural history as follows:
On May 2, 2016, Mother filed an Affidavit for
Relocation (“Relocation”) seeking primary physical
custody of [Child]. After Mother filed her Relocation,
Father filed a Counter-Affidavit opposing the
relocation and requesting Modification. We held an
evidentiary hearing on August 26, 2016. On
August 29, 2016, we issued an Order and a
subsequent Opinion on September 9, 20[1]6,
granting Mother’s request to relocate to Havertown
Twp. Father filed a Notice of Appeal on
September 27, 2016. Father filed his Appeal as a
Children’s Fast Track Appeal and included his Concise
Statement of Errors Complained of on Appeal –
Pa.R.A.P. 1925(a)(2).
Trial court opinion, 10/7/16 at 1. The record further reflects that the trial
court filed its Rule 1925(a) opinion on October 7, 2016.
On appeal, Father raises the following issues:
[1.] Did the trial court commit an error of law
and/or abuse its discretion when denying
Father’s petition for primary physical custody?
[2.] Did the trial court commit an error of law
and/or abuse its discretion when it granted
Mother’s relocation to Havertown?
[3.] Did the trial court commit an error of law
and/or abuse its discretion when it failed to
consider evidence contrary to relocation?
Father’s brief at 13 (capitalization omitted).
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Under the Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321-5340,
our standard of review in custody cases 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).
Moreover, we reiterate that
[t]he discretion that a trial court employs in custody
matters should be accorded the utmost respect,
given the special nature of the proceeding and the
lasting impact the result will have on the lives of the
parties concerned. Indeed, the knowledge gained by
a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an
appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).
With respect to an abuse of discretion, it is well settled that
[a]n abuse of discretion is not merely an error of
judgment; if, in reaching a conclusion, the court
overrides or misapplies the law, or the judgment
exercised is shown by the record to be either
manifestly unreasonable or the product of partiality,
prejudice, bias or ill will, discretion has been abused.
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Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super. 2007) (quotation
marks omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. 23 Pa.C.S.A. §§ 5328, 5338. Section 5323
of the Act provides for the following types of custody awards:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a)(1)-(7).
Section 5338 of the Act provides that, upon petition, a trial court may
modify a custody order when it serves the best interests of the child.
23 Pa.C.S.A. § 5338. Section 5328(a) sets forth the best-interest factors
that the trial court must consider when determining custody and provides as
follows:
§ 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
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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.
(2.1) The information set forth in
section 5329.1(a)(1) and (2)
(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.
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(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.
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23 Pa.C.S.A. § 5328(a)(1-16). Trial courts are required to consider “[a]ll of
the factors listed in section 5328(a) . . . when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original).
Where a request for relocation of a child along with a parent is
involved, the Act requires the trial court to consider the following ten
relocation factors:
(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 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 non-
relocating party and the child
through suitable custody
arrangements, considering the
logistics and financial
circumstances of the parties.
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(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(h). “Section 5337(h) mandates that the trial court shall
consider all of the factors listed therein, giving weighted consideration to
those factors affecting the safety of the child.” E.D. v. M.P., 33 A.3d 73,
81-82 (Pa.Super. 2011). Additionally, “[w]hen a custody dispute involves a
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request by a party to relocate, we have explained ‘there is no black letter
formula that easily resolves relocation disputes; rather, custody disputes are
delicate issues that must be handled on a case-by-case basis.’” C.M.K. v.
K.E.M., 45 A.3d 417, 421 (Pa.Super. 2012) (citation omitted).
We have further explained that:
Section 5323(d) provides that a trial court “shall
delineate the reasons for its decision on the record in
open court or in a written opinion or order.”
23 Pa.C.S.A. § 5323(d). Additionally, “section
5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section
5328(a) custody] factors prior to the deadline by
which a litigant must file a notice of appeal.” C.B. v.
J.B., 2013 PA Super 92, 65 A.3d 946, 955
(Pa.Super. 2013), appeal denied, 620 Pa. 727, 70
A.3d 808 (Pa. 2013). . . .
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., 2013 PA Super 40, 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 factors, complies with Section 5323(d).
Id.A.V. v. S.T., 87 A.3d 818, 822-823 (Pa.Super. 2014) (brackets in original).
Similarly, with regard to relocation, we have concluded that:
sections 5323(d) and 5328 require the trial court to
set forth its ratio decidendi at or near the time it
issues its decision in a custody proceeding. We have
held that, because the best interests of the child are
the paramount concern of any custody case, the trial
court must address the sixteen best interest factors
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of section 5328(a) and the ten relocation factors of
section 5337(h). B.K.M. v. J.A.M., 50 A.3d 168,
172-75 (Pa.Super. 2012) (finding the trial court
erred in failing to consider all section 5328(a) and
section 5337(h) factors). Therefore, by logical
necessity, today we emphasize that our holding in
C.B. (i.e., that section 5323(d) requires the trial
court to delineate its reasoning at or near the time of
its decision) extends to cases that involve both
custody and relocation pursuant to section 5337.
A.M.S., 70 A.3d at 835.
Additionally, with regard to relocation, we have held that
“[s]ection 5337(h) mandates that the trial court shall consider all of the
factors listed therein, giving weighted consideration to those factors affecting
the safety of the child.” A.M.S., 70 A.3d at 836 (citations omitted;
emphasis in original).
Here, with respect to the Section 5328 factors, the trial court
determined that factors 1, 3, 4, 5, 9, 10, and 12 were neutral and favored
both Mother and Father equally. (Trial court opinion, 9/9/16 at 5.) The
court further determined that factors 2, 6, 7, 8, 13, 14, 15, and 16 were not
applicable. (Id.) With respect to factor 11, which considers the proximity of
the residences of the parties, the trial court determined that this factor
favored Father only because Mother decided to relocate. (Id.)
The trial court then proceeded to consider the relocation factors under
Section 5337(h) and found as follows:
First, we consider the nature, quality, involvement
and duration of the relationship [Child] has with
Father. At [the] hearing, Father testified that he has
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a close relationship with [Child]. In the mornings he
gets [Child] off to school after breakfast. Although
Father is not Catholic, he regularly attends mass
with [Child]. Father stated that Mother is the “lead
dog” and sometimes she forgets that he is there.
Nonetheless, Father expressed that Mother is a
wonderful mom, however, he worries that she takes
on too much.
Mother testified that she has an excellent
relationship with [Child]. Mother has established a
routine for [Child] including chores and rules. She
has set aside a night for family games and she is
involved with [Child’s] education and homework.
Mother cooks and bathes [Child] and she includes
[Child] in the daily responsibilities around the house.
Mother has become recently engaged to [M.K.],
however, she is careful not to confuse the role [M.K.]
plays with that of [Child’s] Father. [M.K.] lives near
Havertown Twp., and Mother and [M.K.] have
purchased a home but the title is in [M.K.’s name]
alone. They plan to marry in 2017. We are
concerned that Mother and [M.K.] are not yet
married and that Mother’s name is not on the deed.
Mother is currently enrolled at Drexel to complete a
Masters in Art Therapy. Mother indicated that she
has exhausted all online courses and now her
educational goals require her to attend classes in
person. In Monroe County, Mother cared for her sick
mother, who died in February 2015. Mother also
cares for her now adult brother and father, both of
whom have Asperger’s. Mother’s father is a
registered sex offender and cannot be alone with
[Child], so he is not a resource for Mother or [Child].
Mother indicated that her father will be moving into
an apartment in the Havertown Twp. area in the
near future. Mother believes that Father should be
involved in [Child’s] education as much as she is and
she stated that Father is a good dad to [Child].
In addition, there was testimony from [M.K.],
[R.J.] and [B.J.], Father’s mother and father[,
respectively,] about the support they will give in
caring for [Child]. [M.K.] has a good relationship
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with [Child] and he indicated that his job will allow
him to work from home. He is pursuing a master’s
degree in software engineering and his schedule will
not conflict with Mother’s schedule at Drexel. [R.J.]
testified that he is an avid hunter and he does
outdoor things with [Child]. He stated that he
normally sees [Child] twice a week when he is in
Father’s custody. [B.J.] also testified. She has a
flexible work schedule which will allow her to assist
in child care for [Child]. She is concerned that she
will see [Child] less if he relocates to Havertown
Twp.
In weighing the factors set forth in § 5337(h),
we believe that both parents have exhibited excellent
involvement in [Child’s] life. We are confident that
both Mother and Father will remain excellent role
models and positive influences.
We next consider [Child’s] age, developmental
stage, needs and likely impact the relocation will
have on his physical, educational and [emotional]
development. [Child] appeared before this Court
and he exhibits the enthusiasm and energy of a
healthy 7 year old boy. We find no issues about
[Child’s] physical or emotional development which
will have an impact by the proposed relocation.
Next, we must consider the feasibility of
preserving the relationship between [Child] and
Father after relocation. The distance between
Havertown Twp. and Monroe County is not
significant. As such, we do not believe that this
distance will cause logistical problems for
maintaining a consistent physical custody
arrangement. Although the periods of partial
physical custody will be curtailed during the school
year, both Mother and Father have agreed to flip the
physical custody schedule during the off school
months which will permit Father to have a significant
period of partial physical custody. Nevertheless,
technology makes it possible for Father and [Child]
to see and speak to each other every day.
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Since [Child] is 7 years old, we will not
consider his preference in living primarily with
Mother or Father. There is no pattern of conduct by
either parent to thwart the relationship of the other.
Father and Mother have impressed this Court with
their willingness to work with each other to maintain
their relationship with [Child] and each other.
Mother and Father are the epitome of good
parenting.
We find that the relocation will improve
Mother’s life and especially her desire to continue her
educational goals. Mother indicated that [Child] will
be starting a new school regardless of which parent
is awarded primary physical custody. We believe
that [Child] will gain great educational opportunities
in the Havertown area. The location is close to
Philadelphia and the broad scope of activities,
including many historic and cultural opportunities.
Father also presented evidence about the
school district which [Child] would attend if the
relocation was not granted. The educational
opportunities are equivalent; however the historic
and cultural advantages are significant in Havertown.
Mother’s motivation to relocate is based in
large part on her desire to continue her education
and her future marriage to [M.K.]. We trust her
motives are genuine and that she believes she will
be providing [Child] with the advantages found in
the Havertown area. Moreover, we believe that
Father’s opposition to the relocation is also genuine.
He is concerned with [Child’s] well-being and the
general quality of his life. We are astounded by the
parenting skills and maturity of each parent and
have no doubt they will continue to cooperate and
continue to make [Child] their priority even after
relocation. We have thoroughly examined the
evidence and we believe that the factors weigh more
heavily in favor of [Child] relocating to Havertown
Twp. While no one factor alone outweighs any other
factor, we must consider all the factors together to
determine what is best for [Child].
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Id. at 5-9 (underscoring omitted).
Here, Father first contends that because 15 of the 16 Section 5328(a)
factors were either neutral or inapplicable and because the trial court found
that the remaining factor, which is factor 11 that considers the proximity of
the residences of the parties, weighed in Father’s favor, that the trial court
erred in not awarding Father primary physical custody. Father’s argument is
flawed for two reasons. First, it compels the illogical conclusion that where a
mother and a father are equally fit to act as their child’s primary custodian
based upon consideration of the Section 5328 factors, the parent who seeks
to relocate would never be awarded primary custody solely because that
parent sought such relocation. Second, Father’s argument ignores the
mandate under the Act that requires the trial court to consider the
ten additional factors set forth in Section 5337(h) when determining a
request for relocation. Therefore, Father’s first claim lacks merit.
Father next contends that Mother failed to satisfy her burden of
proving that relocation will serve Child’s best interests. In this section of his
brief, Father claims that the trial court abused its discretion with respect to
its weighing of factor 7 under Section 5337(h), which required it to consider
whether relocation will enhance Child’s general quality of life. With respect
to that factor, the trial court concluded that Mother’s relocation to
Havertown “is close to Philadelphia and the broad scope of activities,
including many historic and cultural opportunities.” (Trial court opinion,
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9/9/16 at 8.) Father claims that because no evidence was offered with
respect to the historic and cultural opportunities offered in Philadelphia or
those offered in Monroe County, the trial court abused its discretion by
considering evidence outside of the record in making its decision. See
M.P. v. M.P., 54 A.3d 950, 954 (Pa.Super. 2012) (reiterating that a trial
court may not consider evidence outside of the record in making its
decision). (Father’s brief at 29-30.) A review of Father’s Pa.R.A.P. 1925(b)
statement, however, reveals that Father failed to preserve this particular
challenge. Therefore, Father waives this claim on appeal. See In the
Interest of B.S., 831 A.2d 151, 155 (Pa.Super. 2003) (failing to include
claims in Rule 1925(b) statement results in waiver of those claims on
appeal).
The remainder of Father’s argument with respect to his second issue
on appeal requests that we reweigh the Section 5337(h) factors. We have
carefully reviewed the record in this case. Additionally, we are quite
cognizant of our standard of review. Accordingly, because competent record
evidence supports the trial court’s reasonable findings and those findings
were not the result of an error of law, we must accept the trial court’s
findings and decline Father’s invitation to reweigh the evidence. See C.R.F.,
45 A.3d at 443 (reiterating that where a trial court’s conclusions are
reasonable as shown by record evidence and those conclusions are not the
result of an error of law, the appellate court is bound by those conclusions).
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In his final issue on appeal, Father contends that “the trial court
committed an error of law and/or abused its discretion in failing to consider
evidence contrary to relocation.” (Father’s brief at 36.) In his brief, Father
then sets forth selected testimony, followed by the conclusions that Father
believes that the trial court should have reached with respect to that
testimony. Once again, Father invites us to reweigh the evidence and reach
a different result. And once again, we must decline Father’s invitation to do
so because we are bound by the trial court’s conclusions where, as here,
those conclusions are reasonable and supported by record evidence. See
id.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
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