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Leytrick v. Leytrick

Superior Court of Pennsylvania
Dec 21, 2023
815 WDA 2023 (Pa. Super. Ct. Dec. 21, 2023)

Opinion

815 WDA 2023 J-S41017-23

12-21-2023

ADAM LEYTRICK v. STEPHANIE LEYTRICK Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered June 14, 2023 In the Court of Common Pleas of Mercer County Civil Division at No(s): No. 2022-02278

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.

MEMORANDUM

OLSON, J.

Appellant, Stephanie Leytrick ("Mother"), appeals from the order entered on June 14, 2023, which denied Mother's petition to relocate and modified an existing child custody order. We affirm.

The trial court thoroughly summarized the underlying facts of this case:

Mother [currently resides in Grove City, Pennsylvania] with the children C.L., 9 years old, and V.L., 7 years old. [Adam Leytrick ("Father") is 44 years old] and also resides in Grove City, Pennsylvania. Father resides alone, other than when the subject children are with him.
Father has lived in the Grove City area for approximately [14] years and the children have lived in the Grove City area their entire lives. The parties were married April 24, 2010. There is a dispute, and it is unclear, when the parties separated. Mother alleged both March 2022 as well as September 2022 while [Father] alleged January 2022. All parties agreed since separation the children have resided primarily with [Mother].
Father was previously employed as a meat cutter at Giant Eagle in New Castle, Pennsylvania. He is currently unemployed but the issue is being grieved through the union process. Mother works for an agency known as "clipboard" and is [a registered nurse ("RN")]. She works primarily in long term care facilities in Beaver and Clarion Counties. Mother currently makes $48.00/hour. Mother works approximately [20] hours per week.
Mother's parents live approximately [45] minutes from her current location as does her brother. She also has four [] nieces and nephews, ranging in age from [four] to [11].
Father's family is comprised of [61] people from the generation of his parents, himself, and his children. The court notes the subject children are close with their paternal cousins. Mother admitted the children have a good relationship with their maternal grandparents as well as with paternal grandmother.
All witnesses agreed the children are well-behaved, do well in school, and are active. When with [Father], the children play with other kids in his neighborhood, C.L. plays garage hockey with [Father], they go on walks, or hunting, [Father] plants flowers, watches movies and cooks with V.L. and they all go swimming in the pool. V.L. likes to sing and dance. When the children are with [Mother] they go bowling, to the park, play school, play frisbee, play ball, or go to the Olympic Fun Center, a roller skating facility. Discipline in [Father's] house is time out or a smack on the butt and [Mother] testified to relying on timeouts. No evidence was presented as to any physical abuse of the children by any party.
Other than one PFA to be discussed hereinbelow, no evidence was presented as to any physical abuse between the parties and in fact, [Mother] specifically stated [Father] was not physically abusive. Mother admitted [Father] loves the children.
Father testified [Mother] is a great mother and has always had the best interest of the children at heart until her recent decision to relocate to [Lee's Summit, Missouri]. At the time of the children's birth, [Father] worked full-time and [Mother]
worked part-time. Therefore, [Mother] undertook most of the duties with the children although [Father] cooked and helped with diapers.
Father did know the name of the children's dentist but incorrectly identified the children's pediatrician. When the parties were together [Mother] primarily took the children to the doctors and dentist and tended to them when they were ill. The children tend to come to [Mother] for emotional support. Father did not know the names of the teachers [and did not make any attempt to] call the school to find out. He indicated there was no need because the children do well in school. Father acknowledges there is probably an "app" that would allow him to have information regarding the children's extracurricular school activities but he had not investigated same.
Father indicated he did not attend children's events because he did not have notice or had to work. The court notes [Father] did not utilize the ability for a school "app" to educate himself. Father admits he has not gone to many of the children's medical appointments. Mother has on at least one occasion sent [Father] a video of the child's extracurricular school activity.
C.L. played baseball for two (2) years. Father coached the first year and attended all practices and games the second year. The child did not play a third year because [Mother] would not commit to make sure the child was there and is not playing this year because [Mother] will not commit as a result of her desire to move to [Lee's Summit, Missouri] with the children.
The controlling custody order is of November 10, 2022. The order provides the parties share joint legal custody with [Mother] exercising primary physical custody. Father's partial custody is on a "week one" and "week two" basis. Week one [Father] has the children from Sunday at 3:00 p.m. until Tuesday morning until they are put on the school bus or returned to [Mother] at 9:00 a.m. Week two [Father] has the children from Saturday at 9:00 a.m. until the children are placed on the bus or return to mother at 9:00 a.m. on Monday morning.
During Week two [Father] also exercises custody from Thursday after school until Friday morning when the children are placed on the school bus or return to [Mother] at 9:00 a.m. This order provides Thanksgiving visitation with [Mother] from 9:00 a.m. to 4:00 p.m. and [Father] from 4:00 p.m.
In support of [Father's] case, in addition to his testimony, he presented the testimony of his mother, Marsha Leytrick, his [sister-in-law], Susan Leytrick and his aunt, Susan Dellapiazza. Mother presented the testimony of herself, as well as her fiancé, Jason Atkinson, and her father, Paul Sereda. All witnesses which addressed [Father's] drinking agreed [Father] had a moderate to severe drinking problem prior to March 2022. Father likewise agreed. Father drank approximately [eight to 12] cans [of] beer on a daily basis. All evidence indicated [Father's] drinking occurred after work, and while at the home. Father voluntarily went to rehab because [Mother] threatened she would move away and he would never see the children again. Father successfully completed a [14] day rehab at Banyon Treatment Facility in March 2022. Father's "sober date" is March 21, 2022. Father stated he has an occasional urge to drink, but not very often. When he does, he makes a phone call or attends a meeting.
All of [Father's] witnesses testified since rehab [Father] has not consumed any alcohol in any manner. To maintain his sobriety [Father] reads "the big book," attends meetings, attends speaker meetings, and talks with a woman that has over a decade of sobriety.
Paternal grandmother testified since [Father's] rehab there has been a 100% change, he is 100% active in the children's lives, spends time with the children playing garage hockey, swimming, and other activities. Paternal grandmother indicated no concern for the children's safety in [Father's] custody, no evidence of a relapse, and they talk daily. Paternal grandmother indicated when [Father] was drinking you could tell by his eyes, his more "mellow" attitude, but she did not notice a change in his speech.
Father's [sister-in-law], Susan Leytrick, indicated prior to rehab [Father's] drinking would render him lethargic, slurred speech and his demeanor would be different and essentially
more isolated. She sees [Father] on an occasional basis. Since rehab there has been no evidence of drinking or alcohol issues.
Father's aunt, Susan Dellapiazza, indicated she was able to tell when [Father] had been drinking because of his red face, not eating, slurring speech, and isolating. She has seen no evidence since [Father's] rehab of drinking or any evidence of alcohol whatsoever. She has no safety concerns regarding the children being in [Father's] care and no doubt [Father] is no longer drinking.
Mother testified she believes [Father] continues to drink. However, the court does not find this testimony credible. Mother stated as a result of being together for [22] years she knows what [Father] sounds like when he is drunk and even in the last week, and multiple other times, she believes he has sounded drunk on phone calls with the children. However, when [Mother] requested the police to perform a welfare check as a result of her suspicions, the police took no action and did not remove the children from [Father's] care. Additionally, [Mother] testified the minor children told her [that Father "said that there was water in his beer can."] However, in addition to said testimony being hearsay, the children did not testify to same. Mother also alleged [Father] continues to drink based on a photograph, which was not admitted into evidence, allegedly containing a beer can within said photograph. Said evidence is insufficient to find [Father] continues to drink, or more importantly, any alcohol usage is a danger to the children.
Of concern to this court is [Father's] decision to unilaterally remove himself from depression/anxiety medications. It is this court's intent to order [Father] to schedule an evaluation, and to comply with any recommendations regarding treatment and medications. During [Father's] rehabilitation a physician ordered medication for depression and anxiety. This medication included one medicine to be taken one time daily, and a second medication to be taken [one to four] times a day, if needed. Father unilaterally removed himself from the medications in the last month or two without consulting, informing, or involving a physician.
In approximately September 2022 [Mother] requested a PFA order on behalf of herself and the children. Following a hearing on September 21, 2022 [the trial] court granted a [six] month PFA order with regard to [Mother] and denied the order with regard to the children.
Mother alleged in the [PFA] petition, in relevant part, through the course of an argument "[Father] flung the door open so forcefully, that the door knob hit [Mother] and knocked her down." Mother alleged this caused a bruise on her hip.
The petition also alleged the children are scared of [Father]. During the course of the instant proceedings [Mother] indicated regarding the PFA there was an argument, about custody of the children, and during the course of the argument [Father] pushed through an unlocked door and the door hit her in the hip. Mother alleged the door left a bruise "for weeks." Father testified he did not force the door open but rather placed his foot in the door to prevent [Mother] from closing it and he believed [Mother] fell into the door.
The court notes despite the allegations in the PFA petition the children were afraid of [Father], the children testified on September 21, 2022 in the course of the PFA hearing. At that time, V.L., was [six] years old, and indicated [Father] does "grab her by her hands or her arms and that it hurts" when she is not listening. Despite [Mother's] testimony she only uses time out, V.L. through the course of the PFA hearing testified [Mother] smacks her on the butt "sometimes" and that [Father] "does it all the time." When this court asked whether [Father] ever says anything that makes V.L. afraid of him, she limited her response to an incident in which she believed [Father] forced her to "eat a pill." When the [trial court] followed up asking if [Father] had ever done or said anything that makes her afraid V.L. indicated no. V.L. specifically testified, "if [Father] didn't make me eat the pill I wouldn't be scared of him."
C.L. testified regarding the "pill" incident indicating [Father] attempted to have V.L. take an adult Advil as opposed to a small Advil. C.L. also testified sometimes [Father] says if the child calls [Mother] he would smack the child which "makes me feel a little bit scared." C.L. indicated [Father] has never actually smacked the child. C.L. indicated [Mother]
"sometimes she grabs my arm" when he is not listening essentially pinching his wrist. C.L. indicated [Father] was "way more scary because he screams really loud." Although child indicated [Father] makes "threats," child was unable to produce any examples. C.L. testified with regard to the "door" incident. The parents were arguing about [Father] taking children for custody time, [Mother] tried to shut the door and [Father] "like pushed it and then slammed it into my mom." Father believes his relationship with C.L. was awesome and they were both very active and like outside. Father's relationship with V.L. was very good and they plant flowers, cook and watch movies.
The [trial court] believes both parents have inappropriately talked with the children regarding the potential move to Lee's Summit[, Missouri]. The [trial court] finds [Mother] improperly influenced the children to desire to move to Lee's Summit. V.L. testified through the course of the instant proceedings the hearing was about moving to Kansas City and [Mother] told her that. V.L. testified they had been to Kansas City on [two] occasions. V.L. indicated the trip to Kansas City was like a vacation. V.L. testified she wanted to do gymnastics in Kansas City but did not know gymnastics were available in Mercer County. The child also stated she did not know what gymnastics were. Mother told V.L. there was gymnastics in Kansas City but did not tell her there was gymnastics in the area.
V.L. also wished to go to Kansas City because there is a roller coaster. When asked whether V.L. preferred to live in Grove City or Kansas City she indicated Kansas City. Her explanation was it was a bigger city. When the Court asked her to compare Kansas City to Pittsburgh, she indicated "Kansas City is way better" and it was because she was going to get new friends. When the [trial court] inquired as to whether V.L. would be okay staying in Grove City[, V.L. responded that] "it would have been okay, I mean no." When asked why the child twice simply stated she wanted to move to Kansas City, she indicated it is fun there. When V.L. was asked how often [Mother] talks to the child about Kansas City the child indicated "a little often." The child indicated if [Mother] was not able to go to Kansas City, [Mother] would be "really sad and she'll cry" and she will not be able to talk to her fiancé. V.L. also indicated [Mother], at least [three]
times, told her she would cry if she could not go to Kansas City. V.L. also indicated [Father] told her they are not moving.
C.L. indicated he was at the hearing because [Mother] wanted to move to Kansas City and he felt really good about it because he did not like going back and forth between his parent's houses and wanted to stay at [one] place. C.L. indicated he does not like his [Father's] house because he does not feel safe to go there but indicated [Father] has never hurt him, only hurts his feelings. C.L. indicated he would be okay only seeing his [Father] once or twice a year. When the Court inquired whether [Mother] told C.L. why she wants to move to Kansas City he indicated because she has a better job there, she met a really nice man there that helps her and it would be a better life for us. In fact, C.L. indicated [Mother] told him that the morning of the hearing.
C.L. also indicated [Mother] told him if the [court] does not approve the move to Kansas City "she would be really sad." C.L. alleges he hates going to [Father's house], gets nauseous at [Father's house], and sometimes cannot eat. When the court inquired as to why the child had earlier indicated he plays soccer, hockey and baseball at [Father's] house he said "to buy some time." When the court inquired whether [Mother] had even spoken to the child about how often he should see his [Father], the child indicated "maybe every [five] weeks." However, the child then denied the conversation. The court notes [Mother's] proposed visitation schedule is every [five] weeks. C.L. indicated Kansas City was preferable because [Mother] has a better job, there are "way better schools," "way better soccer and football leagues" and "way better friends and stuff." When the [court] inquired as to whether [Mother] told C.L. how she would feel if she could not move to Kansas City, he indicated she would cry "because she met a wonderful guy" and "he is the most amazing person." The move would allow "my mom can be happy every single day." He also indicated "my dad never treated my mom nice at all." The [court] notes some of the phrases used by C.L. do not seem the natural language of a [nine-year-old] child. Of note is [Mother] used the phrase that her fiancé was a "wonderful, caring man." The child also pointed out the [two] times they left Kansas City "my mom always cries because we have to leave."
The child indicated during the course of the instant proceedings on March 31, 2023 the incident with regard to the PFA "made me feel that I never want to see him again. I never want to care for him. He has hurt my mom so many times, her feelings. Sometimes when he hurts her feelings, he hurts mine." Interestingly, only a few weeks after the incident in September 2022 both children indicated they would have no problem going to [Father's] house again after a [two] week pause of visitation. C.L. indicated when he moves to Kansas City he will play pickleball but he does not play pickleball here because [Mother] told them they do not have it here. C.L. indicated his plan is to play sports in Kansas City but if he did not go to Kansas City he would probably not play sports here but he cannot answer why.
Father credibly testified he had great difficulty visiting the children prior to a court order or gaining any amount of time beyond the court order. Father credibly testified "it is always a struggle to get the kids" and when [Mother] works she takes the children to her parents rather than offering the time to [Father]. Father acknowledged in the last approximate month there have been [two] times [Mother] has agreed to extra time. One was the weekend of the hearing and the other was to allow [Father] to take C.L. hunting. Subsequent testimony established the hunting day was in exchange for [Father's] agreement to bring the children to a church event on Easter day. The children were at an Easter program at the maternal grandparent's church. Father agreed to bring the children for breakfast to the church and allow them to participate in the program, which occurred. Mother and her parents were in attendance. This credible testimony is contrary to [Mother's] testimony [Father] did not allow the children to see her at all this Easter.
Both parties threaten to, or actually, call the police on each other. Father wished [for] the children on Sunday at 9:00 a.m.[,] despite the fact the court order provided he did not receive custody until 3:00 p.m. on Sundays and he threatened to call the police. Mother called the police for a welfare check based on her alleged belief [Father] was under the influence and because [Father] was not allowing the children to talk to her "without supervision."
By agreement of the parties [the trial court] issued an order on December 22, 2022 providing the children to be with [Father] from December 22, 2022 after school, or 5:00 p.m., whichever is earlier, until 10:30 a.m. on Sunday. Mother then retained custody until January 2, 2023. Father did not appear at the scheduled exchange on Christmas Day at 10:30 a.m. requiring [Mother] to go to [Father's] home to retrieve the children. Father's explanations were inconsistent and lacked credibility. It was clear to the court [Father was] determined to simply disregard the court order.
Father's mother, Marsha Leytrick credibly testified she usually sees the subject children weekly, sometimes babysits the children and visits with the children at her home. She lives approximately an hour and half away from [Father's] residence[.] Her observation of the children and [Father's] interaction indicate "a lot of love" and she sees no signs of friction or fear. The witness testified, and it is clear to the [court], the parties do not get along well at all.
Father presented the testimony of his aunt, Susan Dellapiazza. The witness testified she is close with [Father], they see each other approximately twice a month, mostly at maternal grandmother's house in Bridgeville. The witness lives close to maternal grandmother. She believes [Father] is an outstanding and good father, he is very active, they fish, play garage hockey, cook and walk the dog. The witness described [Father] and children as close. The witness believed [Father] and children were a "very close unit."
Mother testified with regard to her desire to move to Lee's Summit, Missouri, a suburb of Kansas City. Although [Mother's] testimony couched the move for the benefit of the children, it is clear the sole basis for the move is her engagement to Jason Atkinson ("fiancé"). The relationship of [Mother] and fiancé began in March 2022 online and they first met in person in Missouri on March 24, 2022.
Initially the parties visited once a month and now visit every [two to three] weeks. On her first visit to Missouri she fell in love with the city. Mother testified the children did not meet fiancé until the end of 2022. This is contrary to testimony the children met the fiancé in August of 2022.
Mother made the decision at the end of 2022 or the beginning of 2023 to move to Lee's Summit. Lee's Summit is an approximate [12-hour] drive or [two-and-one-half] hour flight from the parties' current residences. The houses [Mother] proposes to rent in Lee's Summit are of a suburban nature with yards. The homes currently identified by [Mother] are approximately [one] block from fiancé, will be rented, and each has [four] bedrooms. It is [Mother's] plan to wed fiancé in October 2023, which she plans to do regardless of whether this court approves the relocation.
Upon the marriage it is [Mother's] belief her fiancé and his [four] children will move in to the home she is renting. [Mother] initially testified the children did not meet her fiancé until the end of 2022 although subsequent testimony established the first trip with the children to Kansas City was in August 2022 and that Christmas 2022 was the second trip. Mother indicated the [four] bedroom home can be rented for approximately $1,200.00 per month and her current rent for an apartment is $750.00 per month. Mother indicated if the court denies relocation she is unsure whether she will move to Kansas City but the marriage will still occur.
Mother testified in an incredible fashion she did not believe the move the Kansas City would affect the children's relationship with [Father] in any way because of technology. Mother did acknowledge [Father] would be unable to attend extracurricular or sporting activities, but alleged [Father] had never done so before. However, this court notes [Father] coached C.L. in baseball one year and in his second year attended all practices and games. When questioned whether [Mother's] proposed partial visitation with [Father] if the move is approved would affect her bond with children if the schedule was flipped, [Mother] was unsure.
Mother attempted to couch her desire to move to Kansas City with her fiancé as for the benefit of the children as it would show the children stability, emotional stability, and they would see a lifelong stable partnership between [Mother] and her fiancé. Mother testified she believes it important for the children to see her with a dependable and supportive partner. Mother believes it's very important for the children to see "love between a couple."
Mother testified education is very important and the kids are doing very well at Grove City. Mother further testified the school district in Kansas City is rated "A+" and that Grove City Schools are "B+". Mother was unable to provide any details other than an internet search to support the ratings. Mother acknowledged the class sizes appeared to be the same and there was no meaningful difference between the school districts. All parties agreed the children do well in school.
Mother currently makes $48.00/hour working for a company called "clipboard". She indicated this company is present in her proposed relocation and she would make $90.00/hour. Mother works per diem approximately [20] hours per week. Mother did not check whether there is higher pay available in any other cities other than Kansas City. Mother did not research any other school districts or schools in other cities, but rather chose the Lee's Summit Schools because that's where her fiancé's children attend.
Mother admitted she only researched the Lee's Summit School District after she decided to relocate. Mother is an RN. In Kansas City she should be able to obtain her BSN and work towards her goal of being a flight nurse at Ottawa University. Mother credibly testified this opportunity was not as easily available in her current location as the Ottawa program would be approximately [15] minutes from her home and any such programs in Pennsylvania would be at least [one] hour[] from her home.
Mother testified in Kansas City, her fiancé, and her fiancé's [two] sisters would be available for childcare. Mother also testified childcare would not be necessary as fiancé makes significantly more money and therefore, she could work less. Mother believed her RN license would easily transfer and her Pennsylvania license is sufficient to allow her to work in Missouri.
Mother asserted the childcare availability is particularly important with regard to the move as [Father] is not dependable and does not provide childcare and in fact at the last minute will cancel his commitments. The court notes the availability of maternal grandmother to babysit as well as daycares in the Grove City area. The court also notes the
children have a strong bond with the maternal grandmother and they see her every couple weekends.
Mother's fiancé is heavily involved in the church and they plan on having counseling for couples with blended families following the move. Mother proposes the court authorize the relocation to Kansas City area and grant her primary physical custody subject to [Father's] partial custody rights. Mother proposes [Father's] custody rights be comprised of [two] weeks in the beginning and end of summer as well as during the remainder of the year, [Mother] will return for a long weekend every [five] weeks. Mother also proposes a week of partial custody with [Father] at Easter and a week at Christmas time. Mother indicated she will pay all airfare for her and the children to return, she will then stay in the area visiting her family and friends, and then return with the children at the conclusion of each partial custody of [Father].
Mother presented the testimony of her fiancé, Jason Atkinson. The witness lives in Lee's Summit, Missouri with his [four] children, ages [14, 11, eight, and six]. He has never committed a crime, been subject of a restraining order, been a party to a Children & Youth Services investigation, nor is he subject to any physical disability or illness that prevents caring for children including mental illnesses or disabilities. [Fiancé] is Director of Business Development for a financial advisor and works 8:30 a.m. to 4:30 p.m., Monday through Friday.
[Fiancé] confirms the parties began talking on Twitter before visiting in person which they have done at least a dozen times. Mother and fiancé have visited both in Kansas City and in Pennsylvania and speak [two to three] hours a day, at least, on the phone. During the subject children's visit at Christmas 2022 they went to the park, played video games together, and played baseball. The parties also went to a golf driving range known as Top Golf, went to a nephew's wedding and "had a really fun time." [Fiancé] and C.L. played "a little bit" of pickleball in Kansas City. It is clear to the court fiancé has a very strong affection for both children.
[Fiancé] characterized the relationship between the children and [Mother] as very good. He indicated she is "the most fantastic mother I've ever met." [Fiancé] described the
neighborhood as houses of approximately 1,500 square feet, single family homes, and in the $200,000 range.
[Fiancé] is unable to relocate here due to the nature of his job especially in comparison to mother's ability to easily relocate as an RN. [Fiancé] added "obviously, I have [four] kids of my own, as well."
Mother also presented the testimony of her father, Paul Sereda. The witness lives in Greenville, Pennsylvania which is approximately [35] minutes from the [parties'] current location.
The witness owns a tavern. He sees the subject children usually a couple times a week and at least, every other weekend. They go to the park which is right next door to his residence, play ball, ride on the side by side, or go through the woods, go to fairs, horseback riding, and around farms. He also teaches C.L. about gun safety. Since the parties' separation witness has not observed [Father] around the children. Witness sees the children a lot more in the summer. Witness has taught V.L. how to play guitar and maternal grandmother has taught the children some piano.
Both the maternal grandparents spend a lot of time with the children and have a very close bond. Witness described [Mother's] relationship with the children as very caring and "a mother bear" and believe she is a wonderful mother. The children and grandparents are very attached and close to each other.
The subject children have [four] maternal cousins in the Pittsburgh area. Witness believed [Father's] primary deficiency in parenting was his alcohol consumption and the drinking prevented [Father] from engaging with or watching the children.
Witness also called the police for a "welfare check" on [Father] and the children and to his knowledge the police took no action following said check.
Mother has no relatives on either side of the family in the Kansas City area.
The children enjoy going to school in the Grove City School District. The court appointed David Gloss, Esquire as Guardian Ad Litem ("GAL") for the children. In addition to a report, which is admitted into evidence, the GAL testified in these proceedings. It was the GAL's conclusion relocation was not in the best interest of the children. The GAL further believed the evidence was clear the children had "been prepared by the mother" for the meeting with the GAL and led to believe life in Missouri is "nirvana". As examples the GAL pointed out V.L. desired to move to Missouri to ride a yet to be built roller coaster and C.L.'s mimicking of [Mother's] statements. The GAL further stated that C.L., when pressed, will admit he has had good times at [Father's] house.
The GAL summarized his position by stating the children were born and raised in the area, all friendships and family are in the Grove City area, no family in Kansas City, all grandparents are within close proximity to Mercer County and a belief that an 850 mile move will significantly damage the relationship with [Father]. The GAL's investigation determined both the children and the school district were aware the parent's divorce was "a bad situation" and [Father] and GAL believed that C.L. and [Father] should participate in joint therapy. The GAL saw no enhancement to the children's lives if relocation was granted.
Father believes counseling between he and C.L. is appropriate as well as the parties should undertake co-parenting classes. Father is "extremely happy" when he has his children and does not believe there is any issue with their relationship other than [Mother's] interference. Father indicated he does not receive the [court-ordered] phone calls from the children while they are in [Mother's] custody.
Father believes the relationship with the children has grown over the last year and the relocation would "devastate" the relationship he and his family have with the children. Father also believed it would be "horrible" to move the children away from their family, friends, and dog. Father believes he should have 50/50 custody, and at a minimum, the children should be with him and not the maternal grandparents when mother works.

Trial Court Opinion, 6/14/22, at 1-22.

On December 20, 2022, Mother filed her petition to relocate from Grove City, Pennsylvania to Lee's Summit, Missouri. See Mother's Petition to Relocate, 12/20/22, at 1-2. Father opposed the petition and the trial court held a hearing on the matter. On June 14, 2023, the trial court filed its findings of fact, conclusions of law, and order in the case, where it denied Mother's petition to relocate and modified the existing child custody order. Mother filed a timely notice of appeal. See Trial Court Opinion and Order, 6/14/23, at 1-45. She raises one claim on appeal:

Whether the [trial] court erred as a matter of law or abused its discretion in denying [Mother's] petition for relocation due to [] the court finding that the children's relationship with [Father] would deteriorate while ignoring the factors of relocation[] and the best interest of the children would be with [Mother] relocating and [Father] having more time under [Mother's] proposal than the ordered custody[?]

Mother's Brief at 5.

Our scope and standard of review of custody determinations are well-settled.

Our scope [of review] is of the broadest type and our standard [or review] 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 [court that] presided over the proceedings and[,] thus[,] viewed the witnesses [firsthand]. 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.
With any child custody case, this Court has long stated that the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all [] the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child. 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[. R]ather, custody disputes are delicate issues that must be handled on a case-by-case basis.
C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012) (quotation marks, citations, and original brackets omitted).

Section 5337(h) of the Pennsylvania Domestic Relations Code, 23 Pa.C.S.A. §§ 5321-5340, sets forth the factors that a trial court must consider, "giving weighted consideration to those factors which affect the safety of the child[,]" in determining whether to grant, or deny, a petition for proposed relocation. 23 Pa.C.S.A. § 5337(h). Those factors are as follows:

(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.

23 Pa.C.S.A. § 5337(h)(1-10). "The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child as shown under the factors set forth in" Section 5337(h). 23 Pa.C.S.A. § 5337(i)(1). "Each party has the burden of establishing the integrity of that party's motives in either seeking the relocation or seeking to prevent the relocation." 23 Pa.C.S.A. § 5337(i)(2).

When the non-relocating party objects to both the relocation, as well as the proposed modification of custody in a counter-affidavit, the trial court, in addition to considering the ten factors enumerated in Section 5337(h), must also consider the sixteen custody factors set forth in Section 5328(a) before granting relocation and modifying an existing custody order. A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013). Those factors are as follows:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(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 [23 Pa.C.S.A. §] 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 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.A. § 5328(a)(1-16).

In the case at bar, the trial court carefully considered the ten factors of Section 5337(h) in denying Mother's relocation petition and the sixteen factors of Section 5328(a) in modifying custody. On appeal, Mother takes issue with the trial court's credibility determinations, as well as the weight the trial court placed on certain evidence and certain factors when it denied her relocation petition. See Mother's Brief at 13-19. However, this Court cannot disturb a trial court's factual findings or its credibility and weight determinations absent a finding that the trial court abused its discretion. C.M.K., 45 A.3d at 421. Here, a review of the trial court's thorough and careful June 14, 2023 opinion demonstrates that there has been no such abuse. Therefore, after reviewing the briefs of the parties, the relevant law, the certified record, and the opinion of the able trial court judge, the Honorable Ronald D. Amrhein, Jr., we conclude that Mother is not entitled to relief in this case, for the reasons expressed in Judge Amrhein's June 14, 2023 opinion. Therefore, we affirm on the basis of Judge Amrhein's opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Amrhein's June 14, 2023 opinion.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Former Justice specially assigned to the Superior Court.


Summaries of

Leytrick v. Leytrick

Superior Court of Pennsylvania
Dec 21, 2023
815 WDA 2023 (Pa. Super. Ct. Dec. 21, 2023)
Case details for

Leytrick v. Leytrick

Case Details

Full title:ADAM LEYTRICK v. STEPHANIE LEYTRICK Appellant

Court:Superior Court of Pennsylvania

Date published: Dec 21, 2023

Citations

815 WDA 2023 (Pa. Super. Ct. Dec. 21, 2023)