A.M.P. v. D.M.P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.M.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
D.M.P. : No. 182 WDA 2020
Appeal from the Order Dated January 6, 2020
In the Court of Common Pleas of Armstrong County Civil Division at
No(s): No. 2014-1232-Civil
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 27, 2020
A.M.P. (“Mother”) appeals from the January 6, 2020 order, which denied
her request to relocate with the parties’ minor child, E.B.P. (“Child”), born in
January of 2010, from Armstrong County, Pennsylvania to Tallmadge, Ohio,
and awarded D.M.P. (“Father”) primary physical custody of Child subject to
Mother’s partial physical custody, in accordance with a schedule delineated in
the order. After careful review, we affirm.
The trial court provided the following factual and procedural history in
its memorandum (“TCM”), which it issued in conjunction with its January 6,
2020 order (“Custody Order”):
The parties were married in March [of] 2008[,] and … Child
was born in January [of] 2010. After the parties separated,
Mother filed a Complaint for Custody in September [of] 2014. The
parties entered into a Consent Order on November 5, 2014. The
parties were later divorced in December [of] 2014. The parties
again entered into a Custody Consent Order on July 1, 2015.
Pursuant to the July 2015 Consent Order, the parties shared legal
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custody of … Child[,] and Mother was granted primary physical
custody subject to Father’s periods of physical custody. In
relevant part, Father had custody of … Child every other weekend,
Mondays overnight, Wednesday evenings, and every other
Thursday evening … during Mother’s custodial week. This custody
arrangement was in place for several years, prior to the instant
petitions filed by Mother.
Mother provided Father with a Notice of Proposed Relocation
on May 14, 2019. The notice stated, “The reason[] for relocation
is … that Mother’s fiancé[, S.F.,] … resides in Ohio and they plan
to marry upon her relocation.” Mother’s proposed date of
relocation was July 1, 2019. Father filed a timely Counter-
Affidavit objecting to the proposed relocation on June 11, 2019.
[A h]earing on this matter was not scheduled until October 17,
2019. Despite one day being allotted for the hearing, the [c]ourt
took significant testimony and adjourned until December 17,
2019[,] at which time the hearing concluded.
Mother testified that she currently resides in Tallmadge,
Ohio. She resides with [S.F.], his minor child, N.F., and … Child.
Mother and [S.F.] are engaged to be married. The two met in
Pittsburgh, however[,] [S.F.] accepted a position in Ohio. Mother
is seeking relocation in order to begin her life with [S.F.,] who
currently resides in Ohio. Specifically, Mother testified that her
current employer offers an increased salary, which Mother could
use to … Child’s benefit, and that there are increased opportunities
for advancement and promotion. Mother also sees the Ohio school
as a benefit to … Child. Mother testified that … Child and N.F. are
close and that she would grow up with a sibling[,] which would be
to her benefit. The children would attend school together and be
in the same grade. While highlighting the benefits of a relocation,
Mother also noted the potential difficulties. Yet, she believes that
… Child would overcome any obstacles and thrive in Tallmadge.
Mother is seeking to relocate … Child to Tallmadge, Ohio and[,]
consequently[,] a modified custody schedule. Mother also
testified that she will remain in Ohio even if the [c]ourt denies her
request to relocate … Child.
Father resides in Apollo, Pennsylvania[,] with his wife[,
E.P.,] with whom … Child has an excellent relationship…. Child
also spends time with paternal grandmother. [E.P.’s] parents are
also present in … Child’s life, as Father and [E.P.] share a duplex
with her parents. Father testified that … Child is a sweet, loving,
family-oriented girl and that a relocation would hinder her
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development. Father has enrolled … [C]hild in counseling…. Child
also has an IEP for issues with math and reading. Father opposes
the relocation on the basis that his already limited time with …
Child would be further limited due [to] the distance the parties
would live apart. Father is also concerned about the amount of
time it would take him to get to … Child in an emergency situation.
Father noted that the distance would be impractical for weeknight
visits with … Child. Father further notes … Child’s entire life is in
Armstrong County, including her counselor and extended family,
to include Mother’s as well. Father is seeking primary physical
custody of … Child.[1]
TCM, 1/6/20, at 1-3 (footnote omitted).
On January 6, 2020, the court entered an order, which denied Mother’s
petition for relocation and awarded Father primary physical custody of Child,
subject to Mother’s periods of partial custody. See Custody Order at 1-4.
Mother and Father maintain shared legal custody of Child. Id. at 1. Mother
filed an Emergency Motion for Reconsideration, along with an Emergency
Motion to Stay Custody Order Pending Reconsideration. The trial court denied
reconsideration on January 28, 2020.
On February 4, 2020, Mother filed a timely notice of appeal, along with
a timely concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2). Herein, Mother presents the following issues for our
review:
I. Did the trial court abuse its discretion and commit an error
of law when its consideration of the relocation factors and
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1We clarify that Father did not file a separate petition seeking primary physical
custody. He did, however, file a counter-affidavit objecting to Mother’s notice
of relocation and request for custody modification. Moreover, Father indicated
during the trial that he is willing and able to care for Child full-time. See N.T.
Trial, 12/17/19, at 64.
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custody factors was based on factual findings and inferences
that were either not supported by or contradicted by the
evidence in the record[?]
II. Did the trial court abuse its discretion and commit an error
of law by not giving full consideration to the best interests
of the child (including but not limited to the impact on the
relationship with both parents and the impact of changing
schools if custody was granted to Father) when denying the
relocation and switching the primary physical custodian to
Father even though neither party was requesting a change
in the custody order if the relocation was denied and making
the change based on factual findings and inferences that
were either not supported by or contradicted by the
evidence in the record[?]
Mother’s Brief at 9.
Both claims advanced in Mother’s appeal challenge the trial court’s
custody order denying her petition for relocation and modifying the parties’
custody agreement. We review such custody determinations under the
following scope and standard of review:
[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.
E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (citation omitted).
With any child custody case, this Court has long stated that the
paramount concern is the best interests of the child. Landis v.
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Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005). This standard
requires a case-by-case assessment of all of the factors that may
legitimately affect the “physical, intellectual, moral and spiritual
well-being” of the child. Id. When a custody dispute involves a
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.” Baldwin v. Baldwin, 710 A.2d 610,
614 (Pa. Super. 1998).
C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012).
Section 5337(h) of the Child Custody Act (23 Pa.C.S. §§ 5321-5340)
prescribes the factors which a court must consider when determining whether
to grant a proposed relocation:
(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
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.
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(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. § 5337(h). It is the burden of the party proposing the relocation
to establish that the relocation will serve the best interest of the child in
accordance with the factors set forth in subsection (h). 23 Pa.C.S. § 5337(i).
See also S.J.S. v. M.J.S., 76 A.3d 541, 551 (Pa. Super. 2013).
In addition to the foregoing relocation factors, the trial court must also
consider the sixteen custody factors set forth in Section 5328 of the Child
Custody Act,2 when making a decision on relocation that also involves a
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2 Section 5328 of the Child Custody Act sets forth the following 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 contact between the child and another party.
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(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.
(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
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custody decision. See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa .Super. 2013).
The 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. § 5323(d). See also
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (noting that Section 5323(d)
applies to cases involving custody and relocation). “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.” Id. (internal
citation omitted). “A court’s explanation of reasons for its decision, which
adequately addresses the relevant factors, complies with Section 5323(d).”
Id.Instantly, the trial court issued a memorandum, in conjunction with its
Custody Order, which contains a detailed analysis of each of the statutorily
mandated relocation and custody factors. See TCM at 4-13. In its relocation
analysis, the trial court found factors 1, 4, 5, 8, and 9, to be neutral. Id. at
5-8. The court further found factors 2, 3, and 7, to favor Father and, although
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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. § 5328(a).
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it did not expressly state as much, the court’s analysis of factor 6 appears to
favor Mother. Id.
Mother claims that the trial court’s findings in favor of Father are based
on factual findings and inferences that are not supported by the record.
Mother’s Brief at 14. She specifically takes issue with the trial court’s
conclusion regarding factor 2 that Mother will not continue Child’s therapy if
relocation is granted. Id. at 15-16. The trial court opined, in relevant part:
(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.
The parties gave differing testimony regarding … Child’s
ability to adjust to a proposed relocation. Mother believes that …
Child will not only adjust well, but would thrive in the Tallmadge
area. Father believes … Child is in the best environment given
that she is already enrolled in an IEP at her current school and [is]
currently seeing a therapist. Since beginning therapy, … Child was
diagnosed with adjustment disorder with anxiety. While … Child
is likely to receive an IEP in her new school, Mother testified that
she does not plan to continue the therapy if … Child relocates to
Ohio. This factor favors Father, and [weighs] against a relocation.
TCM at 5-6.
Mother avers that her testimony merely indicated that she had not yet
located a therapist in Ohio and had not discussed continued therapy with
Child’s current therapist. Mother’s Brief at 16. The record reveals, however,
that it was Father, not Mother, who enrolled Child in therapy. N.T. Trial,
10/17/19, at 33-34. Mother testified that she did not see any issues with
Child, that she had not experienced the same issues with Child as Father had,
and that Child was in counseling because Father said she needed to be. Id.
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at 33-35. Mother also indicated that she did not think Child was benefitting
from therapy and admitted that she has not sought out additional counseling
in Ohio. Id. at 88. Thus, although our review of the transcript did not reveal
any express testimony by Mother that she planned to discontinue Child’s
therapy if Child relocates to Ohio, we conclude that such inference made by
the trial court is reasonable in light of the evidence presented at trial. See
E.D., 33 A.3d at 76.
To the extent that Mother questions the weight given to this factor by
the trial court, it is well-settled that,
[t]he 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.
S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citing Robinson v.
Robinson, 645 A.2d 836, 838 (Pa. 1994)). Based on our review, it is evident
that the court conducted its analysis with careful consideration given to Child’s
best interest, and we discern no abuse of discretion. Thus, Mother is not
entitled to any relief on this claim.
Mother further avers that the trial court failed to “truly consider” the
feasibility of preserving the relationship between Father and Child in its
analysis of factor 3. Mother’s Brief at 18. We deem this claim to be meritless.
While it agreed “the parties would do their best to maintain their relationship
with … Child, and [to] assist one another in doing so,” the trial court found
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that “Father’s relationship would be unduly strained.” TCM at 6. In support
of its determination, the trial court noted that Father believed FaceTime and
telephone calls to be no substitute for the close contact he currently has with
Child, as well as Father’s fear that his relationship with Child would deteriorate
as a result of the proposed relocation. Id. The trial court further noted that
if relocation were granted, Child would be spending several hours per week in
the car travelling between Tallmadge, Ohio, and Apollo, Pennsylvania. Id.We deem the trial court’s findings to be supported by competent evidence in
the record. Moreover, we defer issues of credibility and weight of the evidence
to the trial judge. See E.D., 33 A.3d at 76.
Regarding factor 7, the trial court stated:
(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.
There was significant testimony about the opportunities in the
Tallmadge area, with respect to the community and the schools.
However, as noted by Father, everything available there is
available to … Child in Apollo. There was also testimony about the
schools that Child would attend, and that she would be in the same
grade as N.F. Yet, there was no competent testimony regarding
the nature and quality of the schools by which the [c]ourt could
make a determination that there are enhanced educational
opportunities for … Child weighing in favor of a relocation.
TCM at 7-8. Mother avers that the trial court failed to fully develop its analysis,
and that the trial court erred in finding “everything available in Tallmadge was
available in Apollo[.]” Mother’s Brief at 19. To the contrary, we determine
that the trial court’s analysis adequately addresses the relevant factors and
that the trial court’s findings are supported by the record. See A.V., 87 A.3d
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at 823. Mother has failed to meet her burden of proving that the relocation
of Child is in Child’s best interest.
We turn next to the trial court’s analysis of the custody factors
enumerated under Section 5328(a). See TCM at 10-13. Based on the
evidence presented at trial, the trial court found factors 1, 2, 2.1, 3, 5, 7, 8,
9, 10, 12, 13, 14, 15, and 16, to be neutral. Id.3 Factor 6, which pertains to
sibling relationships, appears to favor Mother, as the trial court acknowledged
that Child has “a loving, natural relationship” with Mother’s 17 year old
daughter, M.P., and that Child also has “a loving sibling relationship” with
S.F.’s minor son, N.F., who would become Child’s step-brother if Mother and
S.F. marry. Id. at 11-12. Factors 4 and 11 favor Father. Id. at 11-13.
Factor 4 considers Child’s need for stability and continuity in her
education, family life, and community life. The trial court observed:
Child’s need for stability and continuity in education, family, and
community life are highlighted by her counselor diagnosing her
with adjustment disorder and anxiety issues. [] Child also
participates in an IEP at school, in which both parents are active
participants. Both parties’ extended families also live in the
Armstrong County area. Given … Child’s temperament and
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3 Mother suggests that factor 12, regarding the parties’ availability to care for
Child or the ability to make appropriate childcare arrangements, favors her.
Mother’s Brief at 24. We disagree. The trial court noted that Father resides
in the same house as his wife’s parents, who help provide childcare as needed,
while Mother testified that her flexible work schedule allows her to provide
childcare as needed. TCM at 13. It appears that both parties are capable of
providing appropriate care for Child and, thus, the trial court does not favor
one party over the other regarding this factor.
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diagnosis, this factor favors Father, as the nonrelocating party in
this case.
Id. at 11.
Mother argues that the trial court has improperly based its analysis of
factor 4 on factual findings and inferences that are not supported by the
record. Mother’s Brief at 25. More specifically, she asserts that Child has not
maintained continuity in her education, because after Father was awarded
primary custody, Child was moved to a different school district. Id.
Additionally, Mother states that by granting Father primary custody, it
effectively terminated Child’s continuity of time with Mother. Id. The trial
court found Mother’s arguments to be “disingenuous,”
as Mother’s proposal was that … Child [would] begin attending
school in Ohio immediately following the winter holiday break….
[E]ither … Child was going to be enrolled in Ohio, or enrolled in
Father’s local school district. In neither case would … Child remain
in her current district, where maternal grandparents reside. When
asked about the relocation petition being denied, Mother stated
that she “would still look for something in Pennsylvania, but
maybe a little closer to the Butler/Grove City area….” Therefore,
the issue of lack of continuity of schooling was necessarily
implicated in any option before the court.
TCO at 4-5.4 We deem the trial court’s findings to be supported by the record,
and we discern no error of law or abuse of discretion.
As to custody factor 11, regarding the proximity of the parties’
residences, the trial court found: “Mother resides in Tallmadge, Ohio[,] and
Father resides in Apollo, Pennsylvania. The parties stipulated to the distance
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4 We note that Child also experienced a change in elementary schools as a
result of Mother’s change in residence during the summer of 2019. See N.T.
Trial at 11.
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and travel time between the parties’ residences and proposed custody pick-
up an[d] drop off locations. The parties reside approximately 2½ hours apart.”
TCM at 12. Mother disputes the trial court’s finding that she resides in
Tallmadge. Mother’s Brief at 25-26. She contends that her residence is in
Worthington, Armstrong County, and that the parties’ residences would only
be 2½ hours apart if her relocation petition was granted. In the event that
relocation is denied, Mother asserts that she would continue to reside only 30
minutes from Father. Id. The record belies Mother’s claims.
In support of its finding that Mother resides in Tallmadge, the trial court
opined:
The [c]ourt was under no misapprehension of Mother’s situation:
she had a home and a job in Ohio, and she spent nights at her
parents’ home in Pennsylvania, as needed, to maintain the current
custody schedule. Indeed, she testified that she divided her time
between the two residences:
Q. Do you consider yourself to have two residences
currently?
A. Yes.
Mother went [on] to say that her residence in Pennsylvania is not
a permanent one. Furthermore, Mother went on to reiterate her
statement of having two residences on cross-examination.
Q. You did say that you consider the Ohio home to be your
residence?
A. Yeah. I have two residences. I live back and forth
between both.
TCO at 4 (footnotes omitted). We further note that Mother testified that she
purchased a home in Tallmadge with her fiancé in September of 2018, and
that she has traveled with Child to her Ohio home almost every weekend since.
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N.T. Trial at 21, 23. When asked about her plans in the event that her
relocation petition is denied, Mother insisted that she and S.F. would still get
married, and explained that she would have to move. “I can’t stay at my
parents’ house. That is temporary. I will look for another house.” Id. at 90-
91. Mother provided no concrete plan, however, at the time of trial, in the
event that relocation was denied.
[O]nly after the January 6th [Custody] Order did Mother state that
she was “seeking local employment as commuting is not
sustainable on a long term basis,” and that “Mother’s fiancé is
intending to relocate back to Pennsylvania where he and Mother
will locate more permanent housing.” Both of those arguments
are belied by the record—Mother’s fiancé has his own custody
situation in Ohio[,] and there was never any testimony that
Mother and her fiancé might abandon the Tallmadge, Ohio[,] plan
for some other course of action.[5]
TCO at 5. Based on the foregoing, we discern no error or abuse of discretion
in the trial court’s finding that Mother resides in Tallmadge, Ohio. Mother is
not entitled to relief on this claim.
We now address Mother’s allegation that the trial court failed to give
“full consideration” to Child’s best interests in making its custody
determination. Mother’s Brief at 19. Contrary to Mother’s claim, we discern
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5 When asked why her fiancé does not move back to Pennsylvania, Mother
testified: “With his job and his son, he can’t. He would be in a relocation
battle as well.” N.T. Trial at 83. Mother explained that S.F. was awarded
primary physical custody of N.F., beginning in January of 2019, and that S.F.
already had one relocation with his job, and that his employer would not
relocate him again. Id. at 76. Mother’s testimony was corroborated by S.F.’s
statement that he has an agreement with his employer that he will not be
relocated again and that this arrangement is important to him because it
provides “stability for [his] son.” Id. at 105.
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that the trial court’s paramount concern was, in deed, the best interest of
Child, as evidenced by the following:
Mother is the relocating party[] and provided the [c]ourt with clear
reasons for her desire to relocate. While the relocation may be in
her best interest, personally and financially, the same is not true
for … Child. While Tallmadge, Ohio appears to be a fine
community,… Child has extensive family and social connections
here [in] Armstrong County[,] which would be significantly
hampered or even ended by the proposed relocation. The family
connections in Armstrong County include both parents’ families….
Child has an IEP in her current school and is showing
improvement. Certainly[,]… Child would have an IEP at any
school she attends, however[,] Father’s ability to participate in
meetings and [his] ability to be hands[-]on would be greatly
diminished in the event of a relocation.
Since the [c]ourt will deny the relocation of … Child to Ohio, the
[c]ourt will enter a new custody order that will grant primary
physical custody to Father, and Mother’s partial custody rights will
in many ways mirror the partial custody rights that Mother
proposed for Father.
TCM at 14. The record reflects that the trial court carefully considered all of
the statutorily mandated factors, while taking into account Child’s best
interest, in arriving at its custody determination. See 23 Pa.C.S. § 5323(a).
We conclude that the court’s findings are supported by the record, and that it
adequately explained the basis for its decision. See 23 Pa.C.S. § 5323(d);
A.V., 87 A.3d at 823. Thus, we discern no error of law or abuse of discretion.
Finally, Mother argues that the trial court erred and abused its discretion
by changing the primary custodian from Mother to Father, as neither party
was requesting a modification of the custody order in the event that her
relocation petition was denied. Mother’s Brief at 19-24. She contends that
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both parties agreed that if the relocation request was not granted, then it was
in Child’s best interest for the custody schedule to remain the same. Id. at
24. Mother is not entitled to any relief on this claim.
In response to Mother’s contention, the trial court noted:
Mother filed a Custody Modification contemporaneously with her
Notice of Relocation. Mother does not put forward any alternative
should the relocation petition be denied.[6] In fact, Mother states
the current order is no longer in … Child’s best interest[,] due to
Mother’s desire to move to Ohio. Furthermore, Father stated
initially that for “nothing to change would be the easiest transition
for her.” However, Father later testified that he was willing and
able to take primary custody of … Child. While Father did not file
his own separate modification petition, Mother put custody at
issue by filing her modification petition. The [c]ourt was not
foreclosed from considering a change in primary physical custody
based on the record before the [c]ourt.
TCO at 3 (footnotes omitted).
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6 The trial court added:
Mother has framed the issues raised on appeal as though there
were a “Plan B,” when, in fact, Plan B was never developed on the
record at trial. The [c]ourt only heard about “Plan A,” which was
presented as Mother’s sole proposal. Prior to trial, Mother had
already laid the groundwork for her relocation petition to be
granted, as though a successful relocation petition were almost a
foregone conclusion. Before coming to [c]ourt, Mother and her
fiancé purchased a home in Tallmadge, Ohio; Mother got a new
job in Ohio; and although Mother was dividing her time between
Pennsylvania and Ohio pending a new custody order, Mother had
taken significant steps toward completing her own move to Ohio.
Now that the [c]ourt has denied … [C]hild’s relocation, Mother’s
argument on appeal is that the [c]ourt should have simply kept
the status quo. But the status quo was never offered by Mother
as a viable option.
TCO at 2.
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J-A18014-20
Moreover, we determine that the trial court did not abuse its discretion
in modifying the custody award, as Mother and Father were clearly on notice
that custody would be at issue during the relocation/custody trial. See C.A.J.
v. D.S.M., 136 A.3d 504, 509 (Pa. Super. 2016) (concluding that if the parties
had notice that custody would be at issue, the court is permitted to modify
custody without a pending petition for modification); S.W.D. v. S.A.R., 96
A.3d 396, 405-06 (Pa. Super. 2014) (indicating that if notice of a proceeding
adequately advises a party that custody will be at issue, a court may entertain
the request to permanently modify a custody order after hearing in that
proceeding); Guadagnino v. Montie, 646 A.2d 1257, 1262 (Pa. Super. 1994)
(stating that a party’s failure to file a petition for modification of a custody
order does not prevent the trial court, under appropriate circumstances, from
altering a custody order when it is in the best interest of the child to do so).
Accordingly, we affirm the trial court’s January 6, 2020 order denying
Mother’s request for relocation and awarding Father primary physical custody.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2020
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