Opinion
J-A04030-17 No. 2792 EDA 2016
05-04-2017
A.D.W. Appellant v. F.W., JR. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 3, 2016
In the Court of Common Pleas of Lehigh County
Domestic Relations at No(s): 2014-FC-0538 BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, A.D.W. ("Mother") appeals from a custody order regarding her children, M.C.W. (born 2005) and T.P.W. (born 2008) (collectively "Children"). Mother contends the court abused its discretion and committed an error of law in denying her motion to relocate the primary residence of her and the Children from Pennsylvania to South Carolina. Mother also challenges the decision to change the custody arrangements from Mother having primary custody to both Mother and F.W., Jr. ("Father") having shared physical custody, because Father withdrew his petition to modify the custody arrangement. We affirm.
We adopt the facts as set forth by the trial court:
Mother informed Father in writing of her intention to move with [Children], to Moore, South Carolina. Pursuant to Pa.R.C.P. 1915.17 and 23 Pa.C.S.A. § 5337(c), on January 15, 2016[,] Mother served Father with notice of relocation within sixty days of her anticipated move, April 2, 2016. She provided information about the location and her proposed modified custody agreement. Her temporary new address at the home of Maternal Grandmother would be . . . , Moore, South Carolina 29369. She identified the school that the children will be attending . . . .
Mother explained that she was moving because Maternal Grandmother, age 68, semi-retired with health issues, had moved to Moore, South Carolina, and is in need of Mother's physical assistance. She added that there will not be any remaining family for Mother in Pennsylvania. Most importantly, Mother expounded upon her inability to financially support herself in the Lehigh Valley as the result of two events that will occur in the fall of 2016. Pursuant to the Property Settlement Agreement signed by the parties and filed December 21, 2015 in the divorce action, Mother is required to refinance the mortgage on her residence, the marital home, in order to remove Father from mortgage liability. The Property Settlement Agreement also provides that the term of alimony payments to Mother from Husband terminates in December of 2016. As a consequence, Mother explained that she will have to sell the home, move from the residence where she and the children have lived for four years. Mother's income from her part-time employment is insufficient to qualify for refinancing of the mortgage. She proposed that in South Carolina, she will be financially able to support the children where the cost of living is less than in the Lehigh Valley. She purported that the lower cost of
living will create a stable financial environment for her to support the children.
Her proposed custodial schedule is as follows. Mother and Father shall share legal custody; sole physical custody shall be vested in Mother. Father shall exercise six uninterrupted weeks of visitation in the summer beginning immediately after the close of school, during which time he will celebrate his son's birthday, Memorial Day, and Father's Day with the Children. Father will also have one week of custody over the Christmas break from school. In addition, he will have either a week of custody over Spring Break or the majority of Thanksgiving break, depending upon whether the year is 'even' or 'odd.'
Father objected to the relocation and to the modification of the custody schedule set forth in the agreed order of March 26, 2015. On February 10, 2016, he filed a Counter Affidavit regarding relocation and a Petition for Modification. In response, Mother filed an Answer and New Matter on March 16, 2016 requesting that the Court grant her relocation as per the terms of her notice. On April 5, 2016, Father filed his Answer to Mother's New Matter. A custody conference was held in May 2016 and thereafter the matter was listed for trial; trial commenced July 8, 2016 during which an attempt was made to interview the Children. The interview was cancelled; the Court found that both children exhibited substantial anxiety in the Court's presence in response to preliminary attempts to discuss the family. The Court was advised that the Children were also upset in anticipation of coming into court. On or before July 14, 2016, both parties submitted briefs; the matter was taken under advisement. An Order for custody was filed on August [3], 2016; this is the opinion in support of that order.
. . . Mother has not been straightforward in her notice to Father in setting forth her motives for the move. In addition to those reasons identified in the notice, the testimony at trial revealed that Mother had other motives for relocating not revealed in her writing. Mother planned to move to maternal grandmother's home and upon the termination of her alimony, marry her fiancé. Her fiancé is a longtime friend and a South Carolina resident who lives
just ten miles from maternal grandmother's home. Mother and witnesses on her behalf testified that the close proximity of the Mother's proposed South Carolina home and that of Fiancé was not planned; the Court found this to be disingenuous on Mother's part and discourteous to all involved.
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Mother and Father were married January 21, 2003; they lived at Mother's home, . . . , Hellertown, Pennsylvania, until May 2012. In 2012, they purchased the marital residence, . . . , in Emmaus, where the family resided together until separation in April 2014 when Father left the home. Mother and the Children have continued to reside at the marital residence. The residence is currently under an agreement of sale. The divorce was finalized in January 2016. . . .
Mother is . . . age 39. She has been employed part-time as a Salon Coordinator . . . in Bethlehem, Pennsylvania for several years. She works Tuesday thru Saturday for 30 hours a week. Her monthly income is approximately $1,000. She is a graduate of Georgia Southern University with a bachelor's degree in Hotel and Restaurant Management with a minor in Business Administration. After graduation she was employed in her field at Hilton Head Island, SC. She moved to Pennsylvania and purchased a home. She has previously been employed in a beauty salon, Chili's Grill & Bar, and LA Weight Loss Centers, before taking her current job. She has been actively involved in organizing a successful fund raising event each year since maternal grandfather's death due to pancreatic cancer.
Father is . . . age 39. Since separation in April 2014, Father has resided at . . . , Allentown, the home of retired paternal grandparents, . . . . The home is located in the Allentown School District. Father is a veteran, an Army
Reservist, and was deployed to Iraq and Kosovo. He is employed as a software implementation engineer . . . since 2007. He works 8 AM until 5 PM Monday thru Friday, and on Tuesday and Thursday he works from home.
The divorce complaint was filed by Mother on April 24, 2014[,] ten days after Father vacated the marital residence. Since separation, Mother has been the primary caretaker of the Children in the marital residence. In December 2014, Mother became engaged to [Fiancé] who has been her friend since high school; they reconnected on Facebook in 2008. Mother and Fiancé have been in a relationship since spring of 2014. Around that same time, the Children met him and, later, in the summer, they vacationed with him and his two children.
On or about this same time, Fiancé, who was residing in North Carolina at that time, had decided to move to South Carolina to be closer to his own children who had relocated with their mother, Fiancé's ex-wife, to Spartanburg, South Carolina. In December 2014, Mother decided to move to South Carolina. Within a month, Fiancé applied for a job in the Spartanburg, South Carolina area and he listed his North Carolina home for sale. After completing his South Carolina educational certification necessary for employment in his field, Fiancé moved from North Carolina in July 2015 to Duncan, South Carolina, approximately fifteen miles from his children. He is employed as an Assistant Principal at the Carver Middle School.
In April 2015 after Mother's decision to move to South Carolina, . . . Maternal Grandmother[] listed her Pennsylvania home for sale, as she, too, had decided to move to South Carolina. In the fall of 2015, Maternal Grandmother purchased [a home in] Moore, South Carolina, the residence to which Mother seeks to relocate. The home is located ten miles from the home of [Fiancé]. Maternal Grandmother, age 68, chose South Carolina allegedly due to its climate and its affordability. She has no relatives in South Carolina; the closest relative is two hours away in Georgia. Maternal Grandmother[] is a cancer survivor, has [chronic obstructive pulmonary disease], arthritis, and carcinoma in her lungs that is in
remission. She is semi-retired and works on-line with a company out of Emmaus, Pennsylvania.Trial Ct. Op., 8/8/16, at 1-8 (footnotes and citations omitted).
In the meantime, the parties entered into a final custody agreement on March 26, 2015, such that Mother has primary custody of the Children and that Father has periods of partial custody on alternating weekends Friday until Sunday and on alternating Saturdays 10 AM until 3:00 PM and every Tuesday and Thursday 4:30 PM until 7:00 PM. Essentially, Father has contact with the Children no less than every two days.
On December 21, 2015, an agreement was reached regarding the division of the marital property. The parties agreed that Mother could keep possession of the marital home and that she would remove Father's name from the mortgage no later than September 2016. In addition, Father agreed to pay alimony, $714 monthly, until December 2016. After the alimony payments cease at the end of 2016, Mother, who is only employed part-time, will be unable to financially support the marital residence as her home or refinance the mortgage. Mother has chosen to work part time. She has sought employment at one location in the Lehigh Valley. She did not look for full time employment because she was going to relocate to South Carolina.
In January 2016, the parties were divorced and thereafter, Mother provided Father with notice of her intention to move to Moore, South Carolina, approximately 670 miles from Allentown, or a ten hour drive. In March and in April 2016, Mother and the Children spent the weekend with Fiancé at his home in South Carolina. In May 2016, Fiancé was held in contempt in his own custody case, having spent the night with an unmarried woman, Mother, with his kids and the Children. At the hearing[,] he testified that they were engaged since December 2014. The [marriage] date is set for December 2016, after the termination of alimony.
The agreement did not require the sale of the marital residence. Rather, the agreement provided that if Mother was unable to assume sole responsibility for the mortgage and release Father from any obligation to pay the mortgage within nine months from the date of the agreement, then the marital residence would be listed for sale. Settlement Agreement, 12/21/15, at 10.
According to the trial court, the Allentown School District "falls short of the quality of education at other suburban school districts," which includes the Children's present school district. Trial Ct. Op., 8/8/16, at 10.
The opinion is timestamped as "filed" on August 5th, and copies were mailed that same day; but the docket reflects that the opinion was docketed on August 8th.
As noted above, Father filed a petition for modification, seeking a change from Mother having primary physical custody to both parents sharing physical custody. Father's Pet. to Modify Custody, 2/10/16, at ¶ 12 (unpaginated). Following a pre-trial conference in June, Father withdrew his petition for modification on July 8, 2016, the day of trial. Final Order, 8/3/16, at 1 n.1. Prior to the start of trial, the court and the parties' counsel discussed whether the issue of custody was properly before the court:
The court: Where does that leave us?
[Father's counsel]: With just the relocation matter.
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[Mother's counsel]: I'm not sure that that leaves us with just the relocation matter, but if he withdraws it, I guess that's the only thing pending before the court for purposes of this hearing. But there's no issue with respect to primary physical custody residing in my client, even after this hearing concludes; because there's no -- there's no issue before the Court with respect to a change of custody as was in this petition to modify. So I believe that that resolves the issue with respect to whether or not there will be any change in the physical custody. There is joint legal custody between the parties, but my client has primary physical, and [Father] has partial physical [custody].
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The court: It begs the question that if her relocation request would be denied, and she moves nevertheless, then the Court would have to rule on some kind of schedule.
[Mother's counsel]: If there's nothing before the court. Am I wrong about that?
The court: No, but that's an absurd result. Her case opens the door.
[Mother's counsel]: [Father's] withdrawing the petition.
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The court: I don't understand why you're withdrawing it.
[Father's counsel]: At the pre-trial conference [held in June], Your Honor noted that you would not grant [Father's] petition [to modify custody] on a hypothetical, that hypothetical being [Father] obtaining an address in the children's school district as he currently lives with his parents [in the Allentown School District]. Given the short time between then and now, he was not able to obtain a residence even though he has done the leg work and is preparing to do so. So at this time in deference to the Court, we would respectfully request to withdraw without prejudice.
[Mother's counsel]: I, too, recall that being said by Your Honor. But even after having heard that said, when I received notice from [Father's counsel that] he was withdrawing his petition, I called him to ascertain why he was doing that. I wanted to be certain of the reason for doing that. He has no place to—the children—well, strike that.
The court: So is there room at his parents' house for the children to live?
[Father's counsel]: Certainly, but it is in the Allentown School District.
The court: So it would be a change in the school district.
[Father's counsel]: And the marital home was listed for sale the day before the pre-trial conference, which gave us very little time to figure out the logistics. We thought the most prudent course of action would be to withdraw as per your statements.R.R. at 108a-09a (emphasis added). Mother's counsel did not object.
The court: So mother sells the house. We don't know that she will remain in the same school district.
[Father's counsel]: That's correct.
The court: Everything is in the air here for this family. I think that, you know, your filing this action today opens the door for the court to modify [the] custody arrangement, and not to simply deny relocation. And you disagree with me on that?
[Father's counsel]: Agree completely.
The court: You agree?
[Father's counsel]: Yes.
The court: All right. Well, are we ready to proceed?
[Mother's counsel]: I am, Your Honor.
We cite to the reproduced record for the parties' convenience.
At the hearing, Mother testified that she had to move out of the marital home because she could not refinance the mortgage due to an insufficient income. N.T. Hr'g, 7/8/16, at 44. Mother testified that she looked for a three-bedroom home in the Lehigh Valley, but could not afford any. Id. at 46. She reiterated her intention to move in with Maternal Grandmother in South Carolina. Mother opined that she found it difficult to apply for jobs in either state because she did not know how or when the court would rule on the relocation petition. Id. at 164-65. After the hearing, Mother advised the court that the marital home was under an agreement of sale. Ex. 1 to Trial Ct. Op., 10/4/16 (e-mail dated July 14, 2016, from Mother's counsel to trial court and Father's counsel).
The trial court denied Mother's petition to relocate on August 3, 2016. The court also modified the custody arrangement such that Mother no longer had primary physical custody; rather, the parties shared physical custody equally. Among other things, the order stated that the Children's residence should not be changed to the extent it would "disrupt the custodial schedule." Final Order, 8/3/16, at 7.
Mother would exercise physical custody over the Children from Sunday through Tuesday, Father would exercise custody from Tuesday to Thursday, and then the parties would alternate having custody from Thursday to Sunday. Final Order, 8/3/16, at 2.
Mother timely appealed. She raises the following issues:
Whether the trial court erred as a matter of law and abused its discretion when it denied Mother's Request for Relocation where she met her burden of proving that the move is in the best interests of the children, where she met her burden of establishing the integrity of her motive in seeking relocation, and when proper consideration is given to the factors enumerated in 23 Pa.C.S.A. § 5337(h) and 23 Pa.C.S.A. § 5328(a)?
Whether the trial court erred as a matter of law and abused its discretion when it modified a custody order
pursuant to 23 Pa.C.S.A. § 5338(a), despite [Father's] withdrawal of his petition for modification prior to the trial proceeding; in the absence of another pending petition or another claim for modification by either party; where [Mother's] relocation request was the only claim of either party before the court for disposition; and where [Mother's] request for relocation was denied?Mother's Brief at 9.
We summarize Mother's arguments with respect to both of her issues: Mother challenges the court's weighing of the relocation factors under 23 Pa.C.S. § 5337(h)(1), (2), (3), (6), and (7), as well as the custody factors under 23 Pa.C.S. § 5328(a)(3), (4), (9), (10), and (12). Mother's Brief at 21. Mother contends the court erred by concluding that she could have obtained full-time employment and refinanced the mortgage, and thus would not have needed to sell the parties' former marital residence. She says that the parties' property settlement agreement required the sale of the home. The court, Mother claims, also improperly weighed her desire to live with her fiancé because she omitted that fact from her notice of relocation.
As noted above, the parties' agreement did not unconditionally require the sale of the marital residence. Rather, under the agreement, Mother was required to assume sole responsibility for the mortgage within nine months. Only if that condition was not met would the residence be listed for sale. Settlement Agreement at 10.
Mother also objects to the court's decision to modify the Children's custody order even though Father withdrew his petition to modify custody on the day of the hearing. She claims that she was unaware that modification would still be at issue if relocation was denied and claims she lacked notice of that issue. Mother argues the court erred by sua sponte transferring primary custody from Mother to a 50/50 shared custody.
We begin by acknowledging our scope and standard of review in custody cases:
We review the trial court's custody order for an abuse of discretion. We defer to the trial court's factual findings that are supported by the record and its credibility determinations. However, we are not bound by the trial court's deductions or inferences, nor are we constrained to adopt a finding that cannot be sustained with competent evidence. In sum, this Court will accept the trial court's conclusion unless it is tantamount to legal error or unreasonable in light of the factual findings.D.K.D. v. A.L.C., 141 A.3d 566, 571-72 (Pa. Super. 2016) (quotation marks and citations omitted), appeal denied , No. 330 WAL 2016, 2016 WL 6462545 (Pa. 2016).
The primary concern in any custody case is the best interests of the child. The best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being.
When considering whether to grant relocation, the court must analyze the ten factors set forth in the relocation provision of the Custody Act, 23 Pa.C.S. § 5337:
(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:
23 Pa.C.S. § 5337(h).(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.
(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.
When considering a change of custody, the court must consider the factors listed in Section 5338(a) of the Custody Act, 23 Pa.C.S. § 5338(a). Mother challenges the court's consideration of the following of these factors:
(3) The parental duties performed by each party on behalf of the child.23 Pa.C.S. § 5328(a)(3)-(4), (9)-(10), (12).
(4) The need for stability and continuity in the child's education, family life and community life.
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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.
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(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
After careful consideration of the record, the parties' briefs, and the decisions of the Honorable Michele A. Varricchio, we agree with the decision to deny relocation and to change custody on the basis of the trial court's decisions. See Trial Ct. Op., 10/4/16, at 3-21; Trial Ct. Op., 8/8/16, at 8- 17 (discussing, in detail, the relevant factors regarding relocation and shared physical custody).
The opinion was timestamped as filed on September 30, 2016. The docket, however, states the opinion was docketed on October 4, 2016, and copies were mailed to counsel on October 3, 2016.
Somewhat confusingly, the trial court stated that "At the time of the [July 8, 2016] relocation hearing, the marital home was under contract for sale." Trial Ct. Op., 10/4/16, at 5. The court then cited an e-mail dated July 14, 2016 — after the hearing — from Mother's counsel that advised the court that the home was under an agreement of sale. Id. The court's error, however, is immaterial, as the court made its first ruling on August 5, 2016, after both the hearing and the e-mail. We also note that on page five of the trial court's October 4, 2016 opinion, and page eleven of the trial court's August 5, 2016 opinion, the citation to Hugo v. Hugo should be: 4 3 0 A.2d 1183 (Pa. Super. 1981). --------
We hold that the trial court did not err in considering the custody issue even though Father had withdrawn his petition to change the custody arrangement. As the trial court held, the parties had notice that the custody issue was before the court prior to the last-minute withdrawal of Father's petition, and both parties introduced evidence regarding the relevant custody issues, as well as relocation, during the hearing. See Trial Ct. Op., 10/4/16, at 8-10. We add that Mother's counsel acquiesced to a potential custody modification by not objecting to the court's observation that the parties' custody arrangements were open to modification. Mother knew that even if her relocation petition was denied, she still would have to move to a new home because the marital home was under an agreement of sale, and, depending on the location of her new residence, a new arrangement for custody might be required. See Ex. 1 to Trial Ct. Op., 10/4/16 (e-mail regarding agreement of sale). We do not fault the trial court for electing to address the parties' custodial arrangements because of the uncertainty about where the Children would reside due to the court's denial of Mother's petition to relocate. So long as "the parties had notice that custody would be at issue, the court is permitted to modify custody without a pending petition for modification." C.A.J. v. D.S.M., 136 A.3d 504, 509 (Pa. Super. 2016).
Given the trial court's thorough consideration of the record and our deferential standard of review regarding credibility and weighing of the relevant factors, we cannot conclude, based on this cold record, that the trial court's findings are unreasonable. See D.K.D., 141 A.3d at 571-72. Accordingly, we affirm the order below. The parties are instructed to include the attached trial court opinions in any filings referencing this Court's decision.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/4/2017
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