M.G. v. B.N.

J-A07023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
B.N. : No. 1728 MDA 2017
Appeal from the Order Entered October 31, 2017
in the Court of Common Pleas of Lackawanna County
Orphans' Court at No(s): 2015-FC-41365
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JUNE 27, 2018
M.G. (“Father”) appeals from the October 31, 2017 order granting B.N.’s
(“Mother’s”) petition to modify the parties’ child custody arrangement and
permitting Mother to relocate with E.M.G. (“Child”), the parties’ three-year-
old son. We affirm.
The trial court summarized the factual background and procedural
history of this case as follows:
On October 22, 2015, Father filed a complaint in custody seeking
primary physical custody and legal custody of Child. A conciliation
conference was scheduled for December 1, 2015. Prior to the
conciliation conference, Father and Mother entered into a
stipulated interim order dated November 12, 2015 where the
parties agreed to have shared legal and physical custody of Child.
The parties appeared on December 1, 2015 for the conciliation
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* Former Justice specially assigned to the Superior Court.
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conference. At that time, the parties entered into a stipulation,
which was made an order of court dated December 9, 2015.[1]
On March 31, 2016, Mother filed a petition for modification of
custody averring that the current custody schedule was no longer
in the best interest of Child as a result of too many custody
exchanges between the parties that have a high level conflict of
with each other, among other things. The parties agreed to co-
parenting classes and to have the prior order remain in effect with
a review before the trial court within 60 days.
***
On February 2, 2017, Mother filed a petition for modification of
custody. Then, on March 23, 2017, Mother filed a petition for
relocation.
Trial Court Opinion, 11/29/17, at 1-4 (cleaned up).
On October 31, 2017, the trial court granted Mother’s petition for
relocation permitting her to move from Lackawanna County, Pennsylvania to
Philipsburg, New Jersey. The trial court also modified the parties’ custody
arrangement by granting (1) Mother physical custody from 4:00 p.m. Sunday
to 4:00 p.m. Wednesday; Father physical custody from 4:00 p.m. Wednesday
to 9:00 a.m. Saturday; and (3) each party, on alternating weeks, physical
custody from 9:00 a.m. Saturday to 4:00 p.m. Sunday. This timely appeal
followed.2
Father presents three issues for our review:
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1Such stipulation provided for multiple exchanges each day in order to
maximize Father’s time with Child when Mother was working and vice versa.
2Father included all issues raised on appeal in his concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).
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1. Whether the trial court abused its discretion and erred as a
matter of law in denying Father’s [request for primary physical
custody]?
2. Whether the trial court abused its discretion and erred as a
matter of law in finding that Mother’s proposed relocation is in
[Child’s] best interests pursuant to the relocation factors at 23
Pa.C.S.[A.] §5337(h)?
3. Whether the trial court abused its discretion and erred as a
matter of law in adopting Mother’s proposed custody schedule
before the completion of the hearing regarding Mother’s
proposed relocation, contrary to 23 Pa.C.S.[A.] §5337(f)?
Father’s Brief at 10.3
In his first issue, Father argues the trial court erred in modifying the
parties’ custody schedule and not granting him primary physical custody of
Child. This argument is waived. Father does not set forth any argument in
his brief as to how the trial court erred in this respect. Instead, he
incorporates by reference the analysis of the factors listed in 23 Pa.C.S.A. §
5328 regarding the modification of custody orders contained in a pleading he
filed before the trial court. See Father’s Brief at 26. As our Supreme Court
has explained, “our appellate rules do not allow incorporation by reference of
arguments contained in briefs filed with other tribunals, or briefs attached as
appendices, as a substitute for the proper presentation of arguments in the
body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 343
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3 We have renumbered the issues for ease of disposition.
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(Pa. 2011) (citation omitted); see Pa.R.A.P. 2119(a). Accordingly, Father’s
first issue is waived. See Pa.R.A.P. 2101, 2119(a).
In his second issue, Father challenges the trial court’s order permitting
Mother’s relocation. He argues that the trial court’s order deprives Child of
the frequency and continuity of daily contact with Father and his extended
family in Lackawanna County. Father asserts that Mother’s sole reason for
relocation is her own desire to move out of her parents’ home in Lackawanna
County and into the residence of her fiancé, E.J. (“Fiancé”). Father contends
that Mother’s relocation is not motivated by a new employment opportunity.
Instead, he believes Mother will financially depend on Fiancé if she moves to
New Jersey. Father asserts that there is no evidence in the record to show
that Child was ever harmed by the daily contact with both parties and
numerous extended family members in Lackawanna County, and that neither
obtaining additional exclusive space nor reducing the number of custody
exchanges supports a relocation to New Jersey.
We review a trial court’s relocation order for an abuse of discretion and
our scope of review is plenary. S.J.S. v. M.J.S., 76 A.3d 541, 547 (Pa. Super.
2013) (citation omitted). A trial court must consider the following factors
when considering a custodial parent’s request to relocate:
(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.
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(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.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S.A. § 5337(h).
The sole issue Father preserved related to these factors is whether the
trial court’s factual findings with respect to the first, second, sixth and seventh
relocation factors are supported by the record. Father does not set forth
argument in his brief with respect to the other six factors. Hence, any
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argument related to those factors is waived. See Pa.R.A.P. 2119(a). We
conclude that the trial court’s factual findings with respect to the first, second,
sixth and seventh relocation factors are supported by the record.
With respect to the first factor, the trial court recognized the bonds Child
has with both parties and their extended families in Lackawanna County.
Nonetheless, it found the first factor weighed in favor of permitting Mother’s
relocation because the relocation would not interfere with Child’s relationships
with Father or the parties’ extended families. Specifically, the trial court noted
that the parties’ revised custody arrangement ensures that Child is present
during Thursday dinners Father has with his extended family and permits Child
to be present for one-half of the Sunday dinners Father has with his immediate
family. See N.T., 7/14/17, at 138, 211-212. Moreover, the trial court found
that Maternal Grandmother travels to New Jersey between two and four times
per month and would be available to assist Mother in caring for Child in New
Jersey. N.T., 6/7/17, at 66. These factual determinations were reasonable in
light of the evidence presented at the custody trial. Hence, we will not disturb
the trial court’s factual findings with respect to section 5337(h)(1).
The trial court found the second relocation factor neutral. It concluded
that, because Child was not attending school nor did he have any meaningful
friendships, moving to New Jersey would not affect his physical, educational,
or emotional development. Moreover, the trial court noted that Child could
still attend the daycare Father preferred on those days Father has custody of
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Child. These factual findings are reasonable in light of the evidence presented
at the custody trial. Therefore, we will not disturb the trial court’s factual
findings as to section 5337(h)(2).
Father focuses on the economic effect of the relocation on Mother when
discussing the sixth relocation factor. Father ignores the plain language of
section 5337(h)(6), which requires trial courts to consider the emotional effect
a potential relocation will have on the relocating parent. Father concedes in
his brief that the relocation will benefit Mother emotionally. See Father’s Brief
at 18-19. With respect to the economic portion of section 5337(h)(6), the
trial court credited Mother’s testimony that the new employment opportunity
was beneficial in the long run. The trial court reasoned that the ability to
expand a dance program year-round outweighed working more hours nine
months per year. This was a reasonable factual determination supported by
Mother’s former guardian’s testimony along with her current employer’s
testimony. See N.T, 6/7/17, at 35 and 152. Father’s arguments as to why
the move will not benefit Mother go to the weight of the evidence. As an
appellate court, we may not reweigh the evidence where, as here, the trial
court’s factual findings are supported by the record and the weighing of the
evidence is neither arbitrary nor capricious. Hence, we will not disturb the
trial court’s factual findings or weighing of the evidence related to section
5337(h)(6).
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The trial court’s factual findings with respect to the seventh relocation
factor are also supported by the record. The trial court credited Mother’s
testimony that relocating would help facilitate a shared custody schedule with
Father. Moreover, Child will have his own bedroom and a shared playroom in
the New Jersey residence. Id. at 178. As Child is not attending school, the
trial court reasonably determined that it would enhance his quality of life to
have smoother custody exchanges, his own bedroom, and his own playroom.
Father’s arguments as to why the move will not benefit Child go to the weight
of the evidence. As an appellate court, we may not reweigh the evidence
where, as here, the trial court’s factual findings are supported by the record
and the weighing of the evidence is neither arbitrary nor capricious. Hence,
we will not disturb the trial court’s factual findings as to the seventh relocation
factor.
Father also argues that the trial court’s relocation decision evidenced
bias. To the extent Father argues that the trial court should have recused
itself, this argument is waived. See League of Women Voters of
Pennsylvania v. Commonwealth, 179 A.3d 1080, 1086 (Pa. 2018) (citation
omitted) (party must seek recusal at the earliest opportunity possible). To
the extent that Father argues that the trial court abused its discretion by
granting Mother’s relocation request as a result of bias, this argument is
without merit. The trial court carefully considered the testimony given at the
entire custody trial and issued detailed factual findings and conclusions of law.
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There is no evidence that the trial court was biased against Father. Hence,
Father is not entitled to relief on his second claim of error.
In his final issue, Father argues that the trial court improperly granted
Mother’s request to modify the parties’ custody arrangement at the conclusion
of the first day of the custody trial. To the extent Father challenges that
interim order, this issue is moot. “If events occur to eliminate the claim or
controversy at any stage in the process, the [issue] becomes moot.” In re
S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation omitted). This Court has
held that a challenge to an interim custody order becomes moot when a final
custody order is entered. K.W. v. S.L., 157 A.3d 498, 499 n.1 (Pa. Super.
2017). To the extent that Father argues that this interim order evidences the
trial court’s bias, we reject that argument for the reasons set forth above.
Therefore, Father is not entitled to relief on his third claim of error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
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