Opinion
J-A03027-14 No. 1554 MDA 2013
03-28-2014
A.L.McF., Appellant v. C.S.B., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered August 6, 2013,
In the Court of Common Pleas of Franklin County,
Civil Division, at No(s): FR 2012-4548
BEFORE: PANELLA, OLSON, and PLATT, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
A.L.McF. ("Father") appeals from the order entered August 6, 2013 which granted C.S.B. ("Mother") permission to relocate to Mercersburg, Pennsylvania, denied Father's petition for shared custody, and granted primary physical custody of the parties' minor child, E.M. ("Child") to Mother, partial physical custody to Father, and shared legal custody to both parties. We affirm.
The trial court made the following findings of fact:
Father, presently 29 years old, resides in a four-bedroom home on Oyer Drive in Waynesboro, Franklin County, Pennsylvania with his wife, Dr. [A.H.-McF]. They own their home. The couple married in July[] 2012. Since October 3, 2011, Father has been employed full-time at Johnson Controls in Waynesboro. He works from 2:00 p.m. to 10:00 p.m. Monday through Friday and works [overtime] on occasional weekends. Dr. [A.H.-McF] is a pediatrician with Pediatric Specialists of Franklin County and the Director of Pediatrics at the Waynesboro Hospital. She has office hours Monday through Friday from 7:30 a.m. until 4:00 p.m.Trial Court Opinion, 8/6/13, at 2-4.
and is on-call for the hospital one weekend per month. Dr. [A.H.-McF] also co-owns A&B Dance Dimensions, a local dance studio which provides dance instruction for children and adults, where she teaches approximately nine [] hours per week.
Mother is 27 years old. She lives in a two-bedroom rental apartment [o]n Pratt Court in Waynesboro, Franklin County, Pennsylvania, which is a subsidized housing community. Mother is not employed at this time. She suffers from epilepsy, a condition which has caused her to decide not to drive although at this time she has a valid Pennsylvania driver's license. She does not own a vehicle.
For the last six [] years, Mother has been in a committed relationship with [C.N.] The couple is not married, but intends to marry in the future. [C.N.] and Mother have a five-year-old son together, M.N., whom they share custody of on a week-on/week-off schedule. [C.N.] is self-employed . . . . His work hours are somewhat flexible.
[C.N.] purchased a home for the family in the Mercersburg area after a lengthy search for a property that met his specifications and budget. He started the search in April/May 2012. While the search was wider than the greater Waynesboro area, the search did specifically include properties in the Waynesboro area. [C.N.] submitted two [] unsuccessful bids for properties in Waynesboro prior to purchasing the Mercersburg home. After extensive renovations by [C.N.], the home will be ready for habitation in the very near future, needing only to be painted prior to the family moving in.
[Child was] born March 27, 2006. He is healthy and has no known special needs. [C]hild attended both kindergarten and first grade at Fairview Elementary School in the Waynesboro Area School District where his educational progress has been acceptable. He will start second grade in the 2013-2014 school year.
Mother and Father were married February 20, 2006 and divorced March 1, 2012. They lived together with [C]hild until August of 2007. Mother obtained a [p]rotection from [a]buse [o]rder against Father which was entered with Father's consent on September 19, 2007. The PFA [o]rder contained a custody provision awarding the parties shared legal custody, primary
physical custody to Mother, and partial physical custody to Father. The PFA [o]rder remained in effect for three [] years; it has now expired.
The parties currently exercise custody of [C]hild pursuant to the [trial c]ourt's temporary [o]rder of November 29, 2012 and a supplemental [o]rder of January 11, 2013 entered after [a] conciliation conference. Currently, Father exercises partial physical custody every Wednesday from after school until Thursday morning, as well as three out of four weekends from Saturday at 9:00 [] a.m. through Monday morning.
The trial court summarized the procedural history of this case as follows:
Father initiated this action with his [c]omplaint for [c]ustody filed on November 16, 2012. Mother filed her [a]nswer on November 28, 2012. After presentation as required by local rule, the [trial c]ourt entered an [o]rder representing the status quo and directing the parties to participate in conciliation. . . .Trial Court Opinion, 8/6/13, at 1-2. The trial court issued its findings of fact and conclusions of law on August 6, 2013. This timely appeal followed.
Mother then initiated the relocation process, providing notice of her proposed relocation to Father on December 17, 2012, as required by 42 Pa.C.S.[A.] § 5337. Mother proposes to move to a home purchased and renovated by [C.N.] on Mt. Pleasant Road in the Mercersburg area. Father's [c]ounter-[a]ffidavit [r]egarding [r]elocation was filed December 27, 2012, evidencing his opposition to Mother's proposed move. Conciliation was held on January 28, 2013, which resulted in only more detailed holiday and vacations provisions. After pre-trial conference, trial was held on July 22, 2013.
On August 29, 2013, Father filed his concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i). On September 16, 2013, the trial court issued a statement in lieu of a Rule 1925(a) opinion. All issues raised on appeal were included in Father's concise statement.
Father raises four issues for our review:
1. Did the [t]rial [c]ourt abuse its discretion in awarding Mother primary custody and allowing Mother to relocate with the child, when Mother was unable to properly identify the new school district where they would reside, and where Mother presented no information regarding the new school district?Father's Brief at 9.
2. Did the [t]rial court abuse its discretion in awarding Mother primary custody and allowing Mother to relocate with the Child, where Mother's overall lifestyle, when contrasted with Father's lifestyle, does not present factors, nor equate to circumstances, that are in the best interests of the child?
3. Did the [t]rial court abuse its discretion in awarding Mother primary custody and allowing Mother to relocate with the child, when Mother presented no evidence regarding any economic benefits of her proposed move, and where Mother admitted she has no prospects of employment at her proposed new residence?
4. Did the [t]rial [c]ourt abuse its discretion by failing to address transportation arrangements to effectuate custody exchanges, when Mother lacks transportation[,] and Father would therefore bear the entire burden of providing transportation?
As we have explained:
Our standard of review over a custody order is for a gross abuse of discretion. If a trial court, in reaching its conclusion, overrides or misapplies the law or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias or ill will as shown by the evidence of record, then discretion is abused. Our scope of review over custody disputes is broad; this Court is not bound by the deductions and inferences the trial court derives from its findings of fact, nor must we accept the trial court's findings of fact when these findings are not supported by competent evidence of record.L.A.L. v. V.D., 72 A.3d 690, 692 (Pa. Super. 2013) (citation omitted).
We have stated,
the 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.A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012) (internal alteration and citation omitted).
Additionally:
The 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 discretionA.V. v. S.T., 2014 WL 895217, *2 (Pa. Super. Mar. 7, 2014) (citation omitted).
Finally, "[o]ur concern in any custody or relocation matter is the best interest of the child, which considers all factors, on a case-by-case basis, that legitimately affect a child's physical, intellectual, moral, and spiritual well-being." S.J.S. v. M.J.S., 76 A.3d 541, 554 (Pa. Super. 2013) (citation omitted).
Preliminarily, we note that in its opinion, the trial court thoroughly analyzed all the relevant factors enumerated in 23 Pa.C.S.A. §§ 5328(a) and 5337(h). See C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super 2013), appeal denied, 70 A.3d 808 (Pa. 2013) (trial court must set forth its assessment of the 16 best interest factors in 23 Pa.C.S.A. § 5328(a)); A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (trial court must consider all of the relocation factors under 23 Pa.C.S.A. § 5337(h)).
In his first issue, Father contends that the trial court abused its discretion in awarding primary custody to Mother and allowing Mother to relocate with Child to Mercersburg, Pennsylvania, when Mother was unable to properly identify the new school district where they would reside, and where Mother presented no information regarding the new school district.
Mercersburg, Pennsylvania is approximately 21 miles from her previous residence in Waynesboro, Pennsylvania. Child attended both kindergarten and first grade at Fairview Elementary School in the Waynesboro Area School District where he made adequate progress. Child would now be attending Mercersburg Elementary School in the Tuscarora School District.
Contrary to Father's assertion, Mother addressed the issue of the new school and the new school district through her pleadings and through her testimony. In particular, Mother's pleading named the school district that Child would attend. See Pre-trial Memorandum of Defendant, 4/29/13, at 4. At the hearing, although she was not able to remember the name of Tuscarora School District, Mother was able to name the school that Child would attend. N.T., 8/6/13, at 104. Thus, Father's argument that Mother was not aware of what school district Child would attend is without merit.
Father also takes issue with the lack of evidence presented to the trial court comparing the two school districts. Father's argument that Mother did no research regarding the school Child would attend is misleading. Mother testified that she had C.N. look into the school district. Id. Furthermore, the trial court found that Father offered no testimony or evidence to support a claim that the proposed school district was inferior or would be detrimental to Child's quality of life. Mercersburg Elementary School is within the trial court's jurisdiction. Trial Court Opinion, 8/6/13, at 7. Thus, we may assume that it is familiar with the school. In addition, the trial court noted that Child is seven years old, healthy, and active. Child does not have out-of-the-ordinary behavior issues, has no extraordinary or special needs, and, therefore, it presumed that the school is capable of meeting Child's education needs. Trial Court Opinion, 8/6/13, at 8-9. After a review of the record and the evidence presented, we find no abuse of discretion on the part of the trial court.
In his second issue, Father asserts that the trial court abused its discretion in awarding Mother primary custody and allowing Mother to relocate where Mother's overall lifestyle, when contrasted to Father's lifestyle, does not present factors nor equate to circumstances that are in the best interests of Child. Father stresses that the contrast between the lifestyles of Mother and Father could not be more apparent.
Mother testified that she is currently unemployed, and has been unemployed for a number of years. N.T., 8/6/13, at 73. She admitted that she has not sought employment for at least the last 6-12 months. Id. at 74. Mother's total income is $581.00 per month, and comes in the form of child support from Father. Id. Mother also receives $527.00 per month in food stamps, and her residence is subsidized housing for which she pays $79.00 per month in rent. Additionally, Mother receives free electric service (which includes her heat and air conditioning). Id. at 75.
Mother testified that she is not married, nor is she currently engaged to C.N. Id. at 77. Mother also testified that she has no extended family in the Mercersburg area. Id. at 81. However, she has her grandmother, aunt, and father, who live near Waynesboro in Fayetteville. Id. Mother also testified that she does not drive. Id. at 89. She also admitted that she smokes one pack of cigarettes a day. Id. at 97. Mother quit school in the 12th grade and has not obtained her GED. Id. at 73.
C.N. testified that his total net pay for 2012 was $29,000.00. N.T., 8/6/13, at 208. C.N. acknowledged smoking fifteen cigarettes per day. Id. at 209. He also has no extended family in the Mercersburg area, and has no connection with Mercersburg. Id. at 205.
At trial, Father testified that his entire extended family (parents, sister, aunts, uncles, and cousins) resides in the Waynesboro area, and that he and his wife own a home in Waynesboro. Father graduated from Waynesboro Area High School and has some post-high school technical training. N.T., 8/6/13, at 127. Father has been employed full-time with Johnson Controls in Waynesboro since October of 2011 where he earns $20.67 per hour plus benefits, which includes heath care coverage for Child. Father attends church, and encourages Child to also attend church. Id. at 133.
The trial court discerned that Mother does not share Father's financial opportunities; however, it concluded that the move to Mercersburg is a significant opportunity for Mother and Child to leave subsidized housing and become a family with C.N. and M.N. "[C]hild will benefit from being in a two-parent household which includes his younger half-brother. He will have the opportunity to move from the apartment in the subsidized housing complex to a single-family home with plenty of green space to play." Trial Court Opinion, 8/6/13, at 11. Furthermore, having M.N. and Child together will provide additional opportunities with respect to extracurricular activities. See id. at 10. The trial court noted that there is no evidence that the home was purchased for the purpose of thwarting Father's relationship with Child.
Father cites to Ketterer v. Seifer, 902 A.2d 533 (Pa. Super. 2006), for the proposition that a marginal improvement in the quality of life for a mother and child does not warrant relocation. Id. at 540-541. However, Ketterer is distinguishable from the case at bar. In the case at bar, the trial court did not conclude that the improvement in Child's life would be marginal. Instead, it listed several significant improvements that would result in relocation. Second, in Ketterer the proposed relocation was from Pennsylvania to California. In the case sub judice the relocation is within the same county. Thus, after our review of the record and the evidence, we find no abuse of discretion on the part of the trial court.
In his third issue on appeal, Father contends that the trial court abused its discretion in awarding Mother primary custody and allowing Mother to relocate with Child when Mother presented no evidence regarding any economic benefits of her proposed move, and where Mother admitted that she had no prospects of employment at her proposed new residence. Similarly, Father asserts that Section 5537(h)(3) addresses financial circumstances of parties when considering potential custody arrangements for a party who relocates. He notes that Sections 5537(h)(6) and (h)(7) address whether the proposed move will create financial benefits for Mother and Child. Finally, he states that 23 Pa.C.S.A. § 5328(a)(4) requires the trial court to consider the need for stability and continuity in Child's life. Father contends that Mother did not present any evidence to demonstrate how her financial condition might improve due to the proposed move.
Mother admitted that she has no employment prospects at the time, that, in the beginning, there would be no change in her income, and she would lose the financial benefits that she enjoyed in public housing. She also conceded that her name is not on the deed of the residence in Mercersburg, and she offered no evidence as to whether she would be required to assist with mortgage payments, real estate taxes, utilities, general maintenance costs, or insurance for the property.
We begin by noting that Father's argument is based on a flawed premise as no one factor is dispositive. Mother's motive in seeking relocation is legitimate. She wishes to live in a household with C.N., the man with whom she has been in a committed relationship for six years. She desires to raise her children in a two-parent family with all of the emotional and financial benefits that a two-parent family can provide. Trial Court Opinion, 8/6/13, at 19-20. After a review of the record and the evidence presented, we find no abuse of discretion on the part of the trial court.
Finally, in issue four, Father argues that the trial court abused its discretion by failing to address transportation arrangements to effectuate custody exchanges, where Mother lacks transportation, and Father would bear the entire burden of providing transportation. Here, Father expressed his concerns regarding transportation in the event that Mother and Child move to Mercersburg. Father alleged that it would be burdensome and financially difficult if he had to provide all transportation while Child is living in Mercersburg.
The trial court determined that Father's ability to enjoy his periods of partial custody will not be significantly impaired by Mother's move. He still will have partial physical custody three out of four weekends per month. The trial court determined that, while Father's drive to deliver Child to school on mornings following his overnights with Child will be significantly longer, his current work schedule will not prevent him from driving Child to school. As the trial court correctly noted, schedule modifications can be made if Father's work schedule changes. Trial Court Opinion, 8/6/13, at 20.
We also note that the distance between Mother's current residence and her proposed residence is so small that a relocation analysis would not have been required but for Child switching schools. Thus, the change in commute time for Father is relatively minor when compared to other relocation cases. After a review of the record and the evidence presented, we find no abuse of discretion on the part of the trial court.
In sum, we conclude that the trial court's factual determinations are supported by the record, that it did not abuse its discretion, and that its legal conclusions are free of legal error. Accordingly, we affirm.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary