Opinion
J-A02030-18 No. 1262 WDA 2017
06-26-2018
C.B.J. Appellant v. A.L.S. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 22, 2017
In the Court of Common Pleas of Blair County Civil Division at No(s): No. 2016- GN 3494 BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J. DISSENTING MEMORANDUM BY BOWES, J.:
While I agree with my learned colleagues' finding that the trial court failed to consider evidence regarding Mother's attempts to thwart the children's relationship with Father, a relocation factor that is outlined in 23 Pa.C.S. § 5337(h)(5), I respectfully dissent from the majority's decision to vacate the custody order and remand for the trial court to address this factor post hoc. I believe that the certified record establishes that Mother's alienation of Father was egregious. It not only affected twelve-year-old R.J.'s perspective of Father, but it also tainted other factors that the trial court weighed in Mother's favor prior to granting her permission to relocate with the children from Tyrone, Pennsylvania to Arlington, Texas. Thus, in my view, the trial court's failure to confront Mother's behavior is more than a mere oversight to be rectified on remand. I would reverse the order granting Mother's petition to relocate and remand for the re-instatement of the prior custody arrangement where the parties exercised shared custody in Pennsylvania.
At the outset, I note that while our standard of review is highly deferential to the custody court's factual findings and credibility determinations, the certified record still must support the court's determination. Instantly, in addition to the relocation factor that the trial court utterly ignored, I believe that the certified record does not sustain the trial court's analysis regarding the relocation factors outlined in 23 Pa.C.S. § 5337(h), (3), (6), and (7), which address the logistics of the proposed custody arrangement, and whether the relocation would enhance the quality of life for Mother and the children, respectively.
As it relates to the proposed post-relocation custody arrangement, the trial court simply adopted Mother's offer to provide Father custodial periods during the summer and unidentified three-day weekends. Unfortunately, Mother neglected to present any evidence concerning the logistics of ferrying the children between Pennsylvania and Texas. Specifically, beyond testifying that the estimated 2,000 mile distance between the locales requires a twenty-one hour car ride, and suggesting that she would be amenable to Father periodically exercising three-day custody at a midpoint such as Tennessee, Mother did not present any evidence outlining how the parties would handle the details of the custody exchanges. N.T., 8/18/17, at 23, 69-70. For instance, while Mother noted her husband's $106,000 salary and stated a general willingness to contribute to exchange-related expenses, she neglected to research the costs of flights between Pennsylvania and Texas or determine the time it takes to travel the 2,000 miles by airplane. Id. at 23-24, 66, 69-70. More pointedly, she did not provide even a rough approximation of the annual costs associated with her proposed arrangement. Rather than holding Mother to her obligation to provide clear and convincing evidence regarding the feasibility of preserving Father's relationship with R.J. and C.J. or demonstrating the suitability of her vague proposition, the trial court granted her petition to relocate the children to Texas despite Mother's failure to develop this component of the § 5337(h)(2) analysis.
Similarly, the trial court also overlooked the evidentiary shortcomings in relation to how the relocation would affect the respective quality of life of Mother and the children. The trial court identified the obvious emotional and financial benefit of Mother finally residing with her husband of approximately one year, a childhood friend with whom she had since only twice had physical contact prior to marriage. Id. at 22, 63, 78. Likewise, it considered her husband's ample income, and noted the comforts and benefit to Mother of being a stay-at-home mother to R.J. and C.J. However, the court discounted the reality that Mother and the children will be entirely dependent on her new husband, who has yet to list Mother on the deed of his Texas residence. Id. at 65, 66. Indeed, Mother's relatives, including her father who supported Mother financially following her separation from Father, reside in Pennsylvania. As there is no evidence that Mother sought to benefit from any unique educational opportunities in Texas, the sum total of the court's § 5337(h)(6) analysis is the financial and emotional benefits that would inure to Mother as a result of the move.
The court's consideration of the children's quality of life pursuant to § 5337(h)(7) is equally troubling. In relevant part, the court's consideration of the benefits to the children focused on their relationship with Mother, R.J.'s preference to move to Texas, an issue I discuss infra, and the possibility that R.J. may be accepted into the Grand Prairie Academy of Fine Arts. Indeed, the court's consideration of R.J.'s potential attendance at the art academy was one of the main benefits it found of the relocation.
In my view, the trial court overstated the importance of R.J.'s potential attendance at the art school. First, R.J.'s matriculation at Grand Prairie is entirely speculative. Not only is there no guarantee of admission, R.J. had not applied to the school, and Mother did not present any evidence during the evidentiary hearing regarding the school's admission statistics, application process, or audition and portfolio requirements. For example, it is entirely possible that the school only accepts new students that are entering specific grades. However, since Mother neglected to provide any relevant documentation about the Grand Prairie Academy of Fine Arts, the trial court had no basis to determine the likelihood of admission. In sum, the trial court fashioned an anticipated benefit from R.J.'s enrollment in the art school without any reasonably accurate basis to conclude that she will be admitted.
Moreover, the certified record reveals that R.J. can attend a similar art program at a vocational school in Pennsylvania once she reaches tenth grade. Id. at 32. As R.J. is currently in the eighth grade, she can start that comparable art program during fall 2019, which is only one year later than the earliest date she could possibly enroll at Grand Prairie if she relocates to Texas. In my view, this aspect of the court's § 5337(h) analysis exaggerated the benefits of potentially attending the art program.
Additionally, I believe that the trial court overstated the children's relationship with stepfather, his son Miguel, and niece Sylvia. First, R.J. and C.J. met the stepfather only once prior to the marriage. Id. at 63-64. That introductory visit lasted two weeks. Id. at 64. It was the children's only in-person interaction with Miguel and Sylvia. Id. at 147. Moreover, the certified record bears out that R.J. only talked to her step-relatives on the telephone twice over the course of their introduction. N.T., 4/19/17, at 72. They last spoke with Sylvia and Miguel during winter 2016, and before that, it was the one trip to Texas approximately four months earlier. Id. at 71-72. Hence, while it is clear that R.J. and C.J. enjoyed the limited interactions that they had with Miguel and Sylvia, the certified record does not support the court's finding that the children share a close bond with their new-found family members.
The foregoing evidentiary weaknesses undermine the trial court's analysis of the third, sixth, and seventh custody relocation factors. While the trial court found that these considerations all militated in favor of granting Mother's petition to relocate to Texas, the certified record does not sustain that determination.
Moreover, in addition to the above-referenced issues with the trial court's analysis, I believe that the custody court's failure to address Mother's attempts to alienate Father's relationship with R.J. was reversible error. As the majority accurately observes, the trial court referenced Mother's inappropriate conversations with R.J., but it nevertheless failed to incorporate those discussions in its analysis.
The record is replete with examples of Mother's alarming level of interference with the father-daughter relationship. While Mother's campaign against Father also included the more mundane forms of parental obstruction, such as refusing to provide copies of report cards or share information about doctors' visits, the persistent theme of her alienation strategy was that Father is a liar with a history of abusive behavior. For instance, after swearing her thirteen-year-old-daughter to secrecy, Mother confided in R.J. that Father's girlfriend, E.B., was residing in a victim's shelter in Altoona, rather than the New York apartment that Father indicated. N.T., 4/19/17, at 26-27, 42. Similarly, Mother discussed with R.J. police reports involving allegations of Father's domestic disputes with E.B., played an audio recording from E.B., and showed the child texts from E.B. regarding Father's behavior. Id. at 44, 60-61. Id. at 30. She also suggested to R.J. that Father broke the child's laptop computer during one of his altercations with E.B. Id. at 59. Mother advised R.J. that "she wanted to tell [her] the truth because [R.J.] wasn't a little kid anymore." Id. at 45.
In addition, Mother placed divorce documents out in the open for the child to read, and she failed to close web pages related to the potential relocation on their shared computer. Id. at 59. Even more concerning is the fact that Mother surreptitiously disclosed to R.J. texts where Father allegedly harassed Mother about the proposed relocation. Id. 60-61. In this vein, I observe that Mother averred to R.J. that Father abused women, and indicated that he was abusive to her when R.J. was a child. Id. at 62. Mother also complained to R.J. that "she was tired of [Father] lying." Id. at 61.
While the record reveals that Mother spoke to R.J. about moving to Texas as early as 2015, Father did not discuss the possibility of relocation until after he discovered that she was aware of the situation. N.T., 8/18/17, at 71-72, 129. --------
In reviewing the evidence, the trial court determined that "[t]here is no credible evidence of record that Father would be abusive to the children." Trial Court Opinion, 8/31/17, at 10. Furthermore, the trial court determined that Mother's allegations of Father's abusive behavior toward E.B. did not affect the children, "beyond the Mother's drawing the children's attention to" it. Id. Nevertheless, having recognized Mother's accusations as petty, the custody court neglected to address the effect of her obvious interference with the father-daughter relationship in its relocation analysis.
Recall that after the parties' separation, Mother moved with the children from the marital residence in Colver, Pennsylvania to Tyrone, located approximately one hour away. Father purchased a home in Tyrone in order to remain closer to his children and to continue to exercise equal physical custody. N.T., 8/18/17, at 99. Indeed, Father never settled for alternating weekends custody. Id. at 109. In fact, the certified record reveals that, before the proposed relocation became an issue, R.J. shared a connection with Father that was comparable to her relationship with Mother. N.T., 4/19/17, 41. However, based on Mother's alienation of Father, R.J. eventually adopted Mother's perspective of Father as an abusive liar. During the in camera hearing, R.J. informed the court that she preferred to move to Texas with Mother, in part, based on "things I found out about my dad." Id. at 32. In this respect, R.J. felt like she was put in the middle of the custody dispute, and she regretted telling Father that she did not want to go to Texas. Id. at 64-63. Indeed, at this point, R.J. believes that she has "to keep lying [to Father] for her own safety." Id. at 62-63.
As the trial court misconstrued evidence relating to the third, sixth and seventh custody relocation factors, as well as totally omitting any consideration of Mother's persistent alienation and interference with the father-daughter relationship under the fifth factor, I would conclude that the trial court abused its discretion in granting Mother's petition to relocate with the children to Texas. Thus, unlike my esteemed colleagues in the majority, I would reverse the trial court's August 22, 2017 order granting Mother's petition to relocate and remand the case for the re-entry of a custody order that reflects the prior arrangement of shared custody of the children in Pennsylvania. If Mother elects to move to Texas without her children, I would grant primary physical custody to Father.