Opinion
J-S09032-14 No. 1686 MDA 2013
03-31-2014
J.R.R., SR. Appellant v. R.L.R. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered August 30, 2013
In the Court of Common Pleas of Huntingdon County
Civil Division at No: 12-1625
BEFORE: MUNDY, OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J.:
J.R.R., Sr., (Father) appeals an order permitting R.L.R. (Mother) to relocate to Idaho with the parties' ten-year-old son, T.J.R. (Child). The court below, the Huntingdon County Court of Common Pleas, also reduced Father's periods of physical custody and prohibited him from consuming alcohol when he has custody of Child. After careful review, we affirm the part of the order prohibiting Father from consuming alcohol while he has custody of Child, and vacate and remand for further proceedings on the issues of relocation and custody so that the trial court may address all custody factors under 23 Pa.C.S.A. § 5328(a).
Mother and Father have separated and are divorcing. Mother filed a notice of relocation because she wanted to move to Parma, Idaho with Child and the parties' two other sons, who are adults. Father contested the relocation, and the trial court held a hearing at which Child, Mother, Father, the two adult sons, and paternal grandmother testified.
On August 30, 2013, the trial court issued an opinion and entered an order (1) granting Mother's request to relocate; (2) requiring the parties to negotiate a custody schedule; (3) dividing the cost of transporting the child equally and giving Father a credit on his child-support obligation; and (4) prohibiting Father from consuming alcohol when he has custody of Child.
Father appeals, raising three issues:
I. Whether the trial [c]ourt erred and abused its discretion in finding the best interests of the Child would be served by allowing relocation of the minor child to the State of Idaho?Appellant's Brief at 6.
II. Whether the trial [c]ourt erred and abused its discretion in finding that incidents that happened in the home over two (2) years ago necessitated the entry of an [o]rder refraining [Father] from drinking during his limited periods of custody with the minor Child?
III. Whether the trial [c]ourt erred and abused its discretion in significantly limiting [Father's] periods of partial custody with the minor Child once relocation has occurred?
Mother has not filed a brief.
Our standard of review in custody cases is whether the trial court abused its discretion, and our scope of review is the broadest type. S.J.S. v. M.J.S., 76 A.3d 541, 547 (Pa. Super. 2013). On the sufficiency and weight of the evidence, and credibility of witnesses, we defer to the trial court. Id. We may reverse only if the record does not support the trial court's findings or if it commits an error of law. Id.
We have thoroughly reviewed the record and the comprehensive opinion of the Honorable Stewart L. Kurtz dated August 30, 2013, which spans 28 pages and contains 119 separate factual findings. We conclude the trial court adequately addressed the issue of relocation using the ten factors as required by 23 Pa.C.S.A. § 5337(h), and the record supports the trial court's determination. However, when a court decides to grant a relocation request, it must modify the existing custody order or establish a new one. Id. § 5337(g)(4). In its written opinion, the trial court considered only the ten relocation factors under Section 5337(h), but did not address the sixteen custody factors set forth at 23 Pa.C.S.A. § 5328(a). We have held on several occasions a trial court must address both the ten relocation factors under Section 5337(h) and the sixteen factors under Section 5328(a) when making a determination involving relocation and custody. See, e.g., A.V. v. S.T., _ A.3d _, 2014 PA Super 48, 2014 WL 895217, at *5 (filed March 7, 2014) ("Here, the court's opinion in support of its . . . order addressed only the relocation factors. By omitting application of the Section 5328(a) custody factors, although making a new award of custody, the trial court erred."); A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013) ("The trial court must consider all ten relocation factors and all sixteen custody factors when making a decision on relocation that also involves a custody decision"). The trial court here did not address Section 5328(a) despite the fact it modified physical custody. In essence, its opinion is incomplete, and we must remand so that it may issue an opinion addressing the Section 5328(a) factors as they relate to custody.
Regarding Father's second issue, the trial court did not abuse its discretion in prohibiting him from drinking when he has custody of Child. The record substantiates the trial court's findings regarding Father's problem with alcohol.
This discrete issue did not concern an award of custody and therefore the court was not obligated to consider all the Section 5328(a) factors. See M.O. v. J.T.R., _ A.3d _, 2014 PA Super 15, 2014 WL 444214, at *4 (filed February 4, 2014) (holding that, in modifying a discrete, custody-related issue, a trial court must consider the child's best interest, but need not address all the Section 5328(a) factors).
We need not address Father's third issue at this time in light of the need to consider the custody factors. The trial court should issue a new opinion and order within 30 days of the date of the return of the certified record.
Order vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.
Mundy, J., concurs in the result. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary