Opinion
J-S22006-17 No. 1802 MDA 2016
04-21-2017
S.M., Appellant v. R.J., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 3, 2016
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2016-397 C.P. BEFORE: SHOGAN, MOULTON, and PLATT, JJ. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
S.M. ("Mother") appeals from the order entered October 3, 2016, denying her relocation with the parties' son, E.J. ("Child"), age five, born in January of 2012, from Susquehanna County, Pennsylvania, to Foxworth, Mississippi. We affirm.
Mother and R.J. ("Father") are not married but lived together on and off, finally separating in the fall of 2012. N.T., 6/13/16, at 11. Prior to the instant proceeding, there was no court-ordered custody; the parties proceeded with a custody arrangement by agreement and without court intervention. Trial Court Opinion, 10/3/16, at 1. The trial court represents that there is no dispute that the parties have maintained a good relationship with each other "even after their separation and have always worked together in raising their son." Id. Mother has never sought court-ordered child support from Father "as she never wanted to create any animosity between the parties." Id.
The trial court set forth the procedural history of this matter as follows:
On April 25, 2016, Mother filed a custody complaint together with a notice of proposed relocation to . . . Foxworth, Mississippi. Mother did not provide any specific information in her notice of proposed litigation as Mother contended that any relocation was "contingent" upon awarding Mother primary physical custody and approving the proposed relocation. (Relocation Notice). On May 6, 2016, Father filed a counter-affidavit regarding relocation indicating that Father objected to the proposed relocation. On that same date, Mother filed a petition for special relief seeking immediate court approval of her relocation pending a full custody hearing. Likewise, Father filed a petition for special relief contending that Mother had already removed [Child] from Susquehanna County, and sought an interim order that prevented Mother from removing [Child] from Susquehanna County pending a relocation hearing.
On May 11, 2016, the [c]ourt scheduled a hearing on Mother's petition for special relief for June 13, 2016, but the [c]ourt did not enter any interim order that would have permitted Mother to relocate with [Child] to Mississippi prior to any hearing. The [c]ourt likewise scheduled a hearing on Father's petition for special relief for June 13, 2016, and the [c]ourt directed that neither party was to remove [Child] from Susquehanna County without court approval.
On June 13, 2016, the parties appeared to address their cross-petitions for special relief and essentially began submitting testimony related to the underlying relocation question. At the conclusion of that hearing, the [c]ourt denied both parties' petitions for special relief, but permitted Mother "to take [Child] from Susquehanna County for any partial custody and/or visitation purposes to visit the State of Mississippi, as her job will
allow, provided that she does get the minor child back for regular scheduled contact with [F]ather." The [c]ourt then set the matter down for a full custody hearing on June 30, 2016. The parties were unable to conclude their testimony at the June 30, 2016 hearing, and subsequent hearings were conducted on August 8, 2016 and September 22, 2016.1
Trial Court Opinion, 10/3/16, at 1-3.1 At the conclusion of the August 8, 2016 hearing, the [c]ourt established a set custody schedule for Father as it was discovered that the intent of the June 13, 2016 Order was not being honored, i.e., Mother had taken [Child] to Mississippi but was not continuing to maintain the former regular schedule of partial custody with Father established between the parties. For this reason, the [c]ourt ordered that Father would have partial custody for a three day period every other week and that Father received one (1) full week of partial custody between August 20 through August 27, 2016.
Following the hearings, the trial court awarded the parties joint legal custody of Child with primary physical custody to Mother and periods of partial physical custody to Father. The trial court denied Mother's relocation to Mississippi. Following the court's denial of Mother's motion for reconsideration on October 25, 2016, Mother filed a timely notice of appeal to this Court on November 2, 2016. Both Mother and the trial court complied with Pa.R.A.P. 1925.
Mother raises the following issues on appeal:
Did the Trial Court commit an abuse of discretion and err as a matter of law by drawing unreasonable inferences and arriving at unreasonable conclusions from the evidence presented, and by ignoring applicable appellate law in coming to those unreasonable conclusions and inferences, such that the Trial
Court's denial of [Mother's] proposed relocation and custody determination amounts to a gross abuse of discretion?Mother's Brief at 3.
Did the Trial Court commit an abuse of discretion and err as a matter of law by imposing burdens on [Mother] to show that a relocation was in the best interests of [Child] when the burdens utilized in arriving at the Trial Court's decision are unknown in Pennsylvania Law?
Although Mother appears to present two distinct issues in her brief, the argument section of her brief raises one issue with ten subparts, in violation of Pa.R.A.P. 2119 ("The argument shall be divided into as many parts as there are questions to be argued"). In addition, she has failed to comply with Pa.R.A.P. 2116 ("Each question shall be followed by an answer stating simply whether the court or government unit agreed, disagreed, did not answer, or did not address the question"). Nevertheless, we address the issues properly preserved.
In custody cases under the Child Custody Act, ("the Act"), 23 Pa.C.S. §§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We 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, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. 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.C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (internal citation omitted). This Court "will accept the trial court's conclusion unless it is tantamount to legal error or unreasonable in light of the factual findings." M.G. v. L.D., ___ A.3d ___, ___, 2017 PA Super 29, *5 (Pa. Super. 2017) (citing S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)).
Section 5328(a) sets forth the best interest factors that the trial court must consider when awarding custody. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). Those factors are as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(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 section 5329.1(a)(1) and (2) (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.
23 Pa.C.S. § 5328(a).(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.
Section 5337(h) sets forth the following ten relocation factors that a trial court must consider when ruling on a relocation petition:
(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). See also E.D., 33 A.3d at 81 ("Section 5337(h) mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child.") (emphasis in original).(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.
Further, with regard to the custody and relocation factors, we have stated as follows:
"All of the factors listed in [S]ection 5328(a) are required to be considered by the trial court when entering a custody order." J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). Section 5337(h) requires courts to consider all relocation factors. E.D., supra at 81. The record must be clear on appeal that the trial court considered all the factors. Id.A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014) (emphasis in original). Moreover, "[w]hen 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; rather, 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) (quoting Baldwin v. Baldwin , 710 A.2d 610, 614 (Pa. Super. 1998)).
Section 5323(d) provides that a trial court "shall delineate the reasons for its decision on the record in open court or in a written opinion or order." 23 Pa.C.S.A. § 5323(d). Additionally, "section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328(a) custody] factors prior to the deadline by which a litigant must file a notice of appeal." C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, , 70 A.3d 808 (2013). Section 5323(d) applies to cases involving custody and relocation. A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa.Super. 2013). A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014).
In expressing the reasons for its decision, "there is no required amount of detail for the trial court's explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations." M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, , 68 A.3d 909 (2013). A court's explanation of reasons for its decision, which adequately addresses the relevant factors, complies with Section 5323(d). Id.
We have scrupulously reviewed the complete record in this case and have read the notes of testimony. On June 13, 2016, both parties testified. On June 30, 2016, Mother and her fiancé testified. On August 8, 2016, Mother and the maternal grandmother testified, and on September 22, 2016, both parties, the paternal grandmother, and a paternal aunt testified. We have carefully considered the arguments of the parties as well as the applicable law. We conclude that the trial court has thoroughly and correctly analyzed the evidence and applied it to this matter. We affirm the October 3, 2016 order on the comprehensive opinion of the Honorable Jason J. Legg, who provided analysis of all of the relocation factors set forth at 23 Pa.C.S. § 5337(h), as well as the general best interest custody factors set forth at 23 Pa.C.S. § 5328(a)., We make the following additional observations.
Mother, who was awarded primary physical custody despite the denial of relocation, has not challenged any of the factors set forth in Section 5328 of the Act.
We direct the parties to attach a copy of the trial court's opinion in the event of future proceedings. --------
The over-arching theme in Mother's brief is that the trial court "focused too much attention," or "did not place enough emphasis" on particular relocation factors. Mother's Brief at 15. This Court does not reweigh the factors; our role does not include making independent factual determinations. C.R.F., 45 A.3d at 443. Indeed, we defer to the trial court's factual findings that are supported by the record and its credibility determinations. M.G., ___ A.3d at ___, 2017 PA Super at 29, *5. We reaffirm that in a relocation case, as in any custody case, the paramount concern remains the child's, not the parent's best interest. We are reminded of the Court's comments in a custody case that pre-dated the Act, but that remain particularly apt:
It is beyond the belief of this court that any parent would petition to relocate their children if said relocation would not contribute to the personal happiness and emotional well-being of the petitioning parent. If these particular benefits to the relocating parent were to carry such weight alone, few relocations petitions would demand much attention and time by the court, few would be denied, and the best interest of the children would take a back seat to the best interests of the relocating parent in virtually every case.Graham v. Graham , 794 A.2d 912, 917 (Pa. Super. 2002). Instead, as it was required to do, the trial court considered all of the factors required by 23 Pa.C.S. § 5337(h) and concluded that Mother's relocation with Child should be denied. The trial court's conclusions do not involve any error of law and are not unreasonable in light of its sustainable findings. Thus, we will not disturb them on appeal.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/21/2017
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