J-S26017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.A.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
T.W. A/K/A T.S.
Appellee No. 2105 MDA 2014
Appeal from the Order Entered on November 21, 2014
In the Court of Common Pleas of Franklin County
Civil Division at No: 2001-595
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED MAY 06, 2015
P.A.W. (“Father”) appeals the November 21, 2014 order, in which the
trial court granted primary custody of T.A.W. (“Child”) (born in October
2000) to T.W. (“Mother”), and permitted Mother to relocate with Child to
Delaware. We affirm.
On February 26, 2001, when Child was approximately four months old,
Father filed a complaint in custody. Mother and Father were not married.
Following a conciliation, a temporary order evidently was entered, although
that order does not appear in the certified record. On June 7, 2002, the trial
court entered a new custody order that provided Mother with primary
physical custody and Father with substantial partial custody, which remained
in effect until 2013.
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On August 21, 2013, Father filed an emergency petition, in which he
alleged that Mother was planning to relocate with Child without providing
proper notice. Mother filed a response, in which she alleged that she had
sent Father a Notice of Proposed Relocation. On September 9, 2013, the
trial court dismissed Father’s petition and ordered Father to file a counter-
affidavit if he objected to Mother’s proposed relocation. Because Father did
not file a timely counter-affidavit, on October 30, 2013, the trial court
granted Mother’s request for relocation and revised the parties’ physical
custody schedule. Father filed a motion for permission to file a nunc pro
tunc counter-affidavit, which the trial court denied. However, Mother did not
relocate.
On January 9, 2014, Father filed a petition to modify custody based
upon the fact that Child did not relocate. On February 17, 2014, the parties
reached an agreement pursuant to which Father had custody six out of
fourteen nights during the school year and alternating weeks during the
summer.
On September 18, 2014, Mother served upon Father another Notice of
Proposed Relocation. Father timely filed a counter-affidavit. Mother filed a
petition to modify custody. The trial court held a hearing on the
relocation/custody modification on November 14, 2014.
At that hearing, Mother testified that she had been married to R.S.
(“Husband”) for eight years. Notes of Testimony (“N.T.”), 11/14/2014, at 4.
Husband has three children from prior relationships, two of whom live with
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Husband and Mother full-time. Mother has one other child from a prior
relationship who lives with Mother primarily. Mother and Husband have one
child. Id. at 10-11. Including Child, five children live primarily with Mother
and Husband.
Husband and the children, excluding Child, relocated to Millsboro,
Delaware in October 2014 after Mother and Husband sold their home in
Shippensburg, Pennsylvania. Mother testified that they were buying the
Millsboro house in which the family was living and that closing was
scheduled for December 9, 2014. Id. at 5-7. Mother and Child were
residing with Mother’s mother pending the outcome of the relocation
hearing. Id. at 5. Mother testified that they did not move when the prior
relocation request was granted because they could not sell their house in
Shippensburg and could not afford two houses. Id. at 35.
Husband testified that he ran his own business until it closed in 2013.
Id. at 47. From then until he started at his current job in Delaware, he
worked various jobs. The Delaware job paid $20.00 per hour and he worked
forty-eight hours per week. Id. at 48-49. Husband anticipated that he
would receive a raise as of January 1 to $27.00 per hour. Id. at 48, 50.
Husband also testified that he was now in a union and received benefits that
he did not have when he was self-employed. Id. at 51-52. Husband had a
job in Delaware when the prior relocation was granted, but gave it up and
moved back to Pennsylvania when the Shippensburg house did not sell. Id.
at 53.
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Mother testified that she has been Child’s primary custodian. Id. at
14. Mother participated in Child’s cheerleading and made arrangements for
Child to continue competitive cheerleading in Delaware. Id. at 16-20.
Mother testified that the move was precipitated by Husband’s job
opportunity in Delaware. Id. at 22. Mother had obtained two part-time jobs
in Delaware that would offer health insurance and a retirement plan that her
Pennsylvania job did not offer. Id. at 23-24. While Mother might work
more total hours than she worked in Shippensburg, she testified that she
would not be working nights and had flexibility for extracurricular activities
or if the children were ill. Id. at 25.
Father testified that he lives in Chambersburg with his girlfriend, C.W.,
and their two children, in addition to Child. Id. at 67. Father testified that
he and Child share a strong relationship and that Child gets along well with
his children and with C.W. Id. at 69-70. Father believed that removing
Child from her school would be harmful to her. He indicated that, if he were
awarded custody, he could petition to have her remain in the Shippensburg
school district. Id. at 76. However, Father acknowledged that Child might
have to change schools. Id. at 92. Father also believed that the relocation
would have a negative impact on Child’s relationship with him and her half-
siblings. Id. at 82-83.
Child testified that she has a good relationship with both parents and
Husband, although sometimes she does not get along with C.W. Id. at 119.
Child admitted to being anxious about moving, but acknowledged that,
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regardless of who received primary custody, she was going to have to move.
Id. at 130. Child testified that she would want to move to Delaware,
because she had been with the half- and step-siblings in Mother’s house for
a longer time, and that “[i]t would just be really hard not to like go with
them.” Id. at 131. Child acknowledged that she had an easier relationship
with Mother. Id. at 132. However, Child believed that she would develop a
better relationship with Father if she lived primarily with him. Id. at 131-32.
On November 21, 2014, on the record, the trial court made detailed
findings of fact and conclusions of law that tracked the custody and
relocation factors set forth in 23 Pa.C.S.A. § 5328(a) and § 5337(h),
respectively. On the same day, the trial court issued an order permitting
Mother to relocate with Child after December 9, 2014, provided that Mother
submit to the Court documents proving that Mother and Husband completed
the purchase of their home in Delaware. The order also provided Father
with partial custody on alternating weekends during the school year and the
majority of the summer break.
On December 10, 2014, Father timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On January 8, 2015, the trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a).
Father raises three issues for our review:
1. Did the trial court abuse its discretion and act contrary to the
weight of the evidence by finding that Mother had met the
requisite burden of proof necessary for relocation?
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2. Did the trial court err when it denied Father’s counsel the
opportunity to question the fourteen-year-old child in camera
regarding the relocation, and thus effectively denied
[Father’s] due process rights?
3. Did the trial court err in issuing a conditional order providing
for relocation?
Father’s Brief at 7.
Our scope and standard of review are well-settled:
[O]ur scope is of the broadest type and our standard 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 judge who presided over the proceedings
and thus viewed 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. 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.
E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (citation
omitted). With any child custody case, this Court has long
stated that the paramount concern is the best interests of the
child. Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super.
2005). This standard requires a case-by-case assessment of all
of the factors that may legitimately affect the “physical,
intellectual, moral and spiritual well-being” of the child. Id.
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; rather, custody disputes
are delicate issues that must be handled on a case-by-case
basis.” Baldwin v. Baldwin, 710 A.2d 610, 614 (Pa. Super.
1998).
C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012).
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In its November 21 order, the trial court granted relocation and
changed the physical custody schedule for the parties. Consequently, the
trial court was required to consider all of the relevant custody factors
enumerated in 23 Pa.C.S.A. § 5328(a) and all of the relevant relocation
factors pursuant to 23 Pa.C.S.A. § 5337(h). See A.V. v. S.T., 87 A.3d 818,
822-23 (Pa. Super. 2014). The factors are as follows:
(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)
(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
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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.
(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:
(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.
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(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.
The trial court provided a detailed discussion of each of the relocation
and custody factors on the record in open court. See N.T., 11/21/2014, at
2-27. Father does not contend that the trial court did not adequately
consider the factors. Instead, Father asserts that the court’s conclusions are
not supported by the record and argues that the court’s order was contrary
to the weight of the evidence. Father’s Brief at 14-16.
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The trial court found that the move would benefit Mother’s quality of
life through the possibility of advancement for Husband. N.T., 11/21/2014,
at 13-16. The court acknowledged that there was some uncertainty in
Mother’s and Husband’s testimony regarding the details of Husband’s new
job and union protections for his position. However, the trial court found
that Mother and Husband were honest in their testimony. Id. at 16. The
court also concluded that there would be a financial benefit to Child from the
move because of Husband’s job, but that Child’s education or emotional
well-being would not be enhanced by the move. Id. at 17. In the end, the
trial court concluded that many of the factors were essentially equal – that
both Mother and Father provided appropriate care for Child and that Child
was “an overall fairly stable child” who “will be able to make friends
whereever she goes.” Id. at 21-22. However, the trial court ultimately
relied upon the fact that Child was more bonded to and had a closer
relationship with Mother. Id. at 27. The trial court also acknowledged that,
because Mother and Husband had sold their home in Pennsylvania, Child
likely would be changing schools regardless of the relocation and custody
decision. Id. at 7-8. Based upon its review of the factors, the court granted
relocation and awarded primary custody to Mother.
The record supports the trial court’s conclusion that Child has a closer
relationship with Mother. While Child did not want to choose with whom to
live, Child acknowledged that it would be hard not to live with Mother and
her family. Further, although Husband lacked some specifics regarding his
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union membership, his new job paid more than his prior job, provided
benefits, and at least presented the opportunity for advancement. That
testimony in combination with Mother’s testimony regarding her new jobs
and the possibility of a higher-paying job with a bank in Delaware supports
the trial court’s findings that there is an economic benefit to the move that
would enhance Mother’s and Child’s lives. The trial court found that
Husband and Mother were honest in their testimony regarding the economic
benefits of the move. Further, Mother testified regarding the Millsboro
home, its adequacy for the family, and the details of the planned purchase.
Husband testified about a planned addition to the home to provide the family
with additional space. We must defer to the trial court’s credibility and
weight determinations. See C.M.K., supra. Given the trial court’s focus
upon the economic benefits and Child’s bond with Mother and the record’s
support for its findings, the trial court did not abuse its discretion in granting
relocation and awarding Mother primary custody.
In Father’s related third issue, he argues that the trial court erred in
granting relocation when there were questions regarding Mother’s purchase
of a home in Delaware. Father contends that the trial court also erred in
permitting Mother to file documents relating to the home purchase after it
was completed because Father could not question Mother regarding those
documents. Father’s Brief at 17.
When the trial court made its findings of fact, it acknowledged that it
was concerned about Mother’s living situation because a prior relocation had
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fallen through and Mother and Husband had not yet closed on the Millsboro
house. N.T., 11/21/2014, at 27-28. The trial court also was concerned that
if it ordered Child to stay with Father until Mother closed on the house, it
would cause turmoil for Child and potential damage to Child if Mother’s
presence was removed from her life. Id. at 29. The trial court concluded
that it would grant the relocation, but that if Mother did not close on the
Millsboro house on December 9, 2014 and did not have suitable housing,
Child was to be returned to Father and Father would have primary custody
for the rest of the school year. Id. at 29-30. After discussion with counsel,
the trial court agreed that Mother and Child would remain with Mother’s
mother until the December 9 closing; then Mother would provide the court
with copies of the closing documents, and the relocation would proceed. Id.
at 30-32. On December 10, 2014, Mother filed a copy of the deed, the
mortgage, the signed note, and the signed settlement statement for the
Millsboro house.1
The trial court indicated that it made this “conditional” order to protect
Child, should the home purchase not go as planned. Trial Court Opinion
(“T.C.O.”), 1/8/2015, at 5-6. The trial court found Mother and Husband to
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1
Father notes that the documents filed list only Husband as the owner
of the property. Father’s Brief at 17 n.1. Father does not explain, and we
fail to see, why this is relevant. Whether Mother and Husband or Husband
alone is the listed owner, Child has stable housing in Delaware.
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be credible in their testimony regarding the planned purchase and
determined that the home would be suitable for Child. Id. at 5.
Instantly, the trial court felt the need to provide extra protection, in
light of the earlier failed relocation. Father provides no authority for his
contention that a conditional order is per se error. Mother and Husband
both testified regarding the Millsboro home, including the details of the
planned purchase and closing. While Mother could not provide closing
documents, she did provide the real estate listing describing the house and a
“pre-occupancy agreement” setting forth the terms by which Mother and
Husband were living in the home prior to purchase. Father had ample
opportunity to cross-examine Mother and Husband regarding the home. We
find no error in the trial court seeking confirmation of the closing before
permitting the relocation. The trial court’s relocation decision is supported
by the record, and there is no abuse of discretion.
In his remaining issue, Father argues that the trial court erred when it
did not allow Father’s attorney to question Child directly. Father contends
that Child was old enough to be questioned by counsel. Father concludes
that the trial court’s analysis of the relocation factors was “tainted” because
counsel was unable to question Child. Father’s Brief at 16-17.
Our rules governing the interrogation of a child in a custody action are
as follows:
(b) The court may interrogate a child, whether or not the subject
of the action, in open court or in chambers. The interrogation
shall be conducted in the presence of the attorneys and, if
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permitted by the court, the parties. The attorneys shall have the
right to interrogate the child under the supervision of the court.
The interrogation shall be part of the record.
Pa.R.C.P. 1915.11(b).
Here, the trial court stated its intention to ask all questions of Child
and then to take a brief recess to confer with counsel to determine whether
additional questions were necessary. N.T., 11/14/2014, at 110. Both
attorneys consented to this procedure. Id. After questioning Child
extensively about her family life and her relationships with family members,
her school and activities, and her thoughts about the proposed move, see
id. at 111-36, the court took the promised recess. Id. at 136. After
returning, the court asked Child additional questions. Id. at 136-40. The
trial court then asked the attorneys whether there was anything else to
cover. Father’s attorney asked the court to question Child further regarding
“jobs.” Id. at 140. While the court initially refused because it believed the
issue had been addressed, it then decided to ask a few more questions. Id.
at 140-42. After Child left the room, Father’s attorney then placed an
objection to the court’s procedure on the record.2 Id. at 143-44.
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2
We note that an objection must be made at the earliest opportunity
and that failure to do so can result in waiver. See State Farm Mut. Auto.
Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015) (en banc); Mazlo v.
Kaufman, 793 A.2d 968, 969 (Pa. Super. 2002) (“Our Supreme Court has
frequently stressed the necessity of raising claims at the earliest
opportunity . . . .”). By first consenting to the trial court’s proposed
procedure and then waiting to object until after the witness was excused,
Father arguably did not preserve his objection in a timely manner. However,
(Footnote Continued Next Page)
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While Rule 1915.11 might by its terms appear to provide authority to
Father’s argument, we previously have allowed the trial court flexibility in
interrogating a child. In A.O. v. M.O., we explicitly approved of a procedure
very similar to the one used in this case. 856 A.2d 1204, 1208 (Pa. Super.
2004). In that case, during a custody modification hearing, the trial judge
conducted the interrogation of the twelve-year-old child. The attorneys were
not permitted to question the child directly, although the judge did ask the
attorneys if there were questions they wanted him to ask. The trial judge
stated that he believed that this approach was the best way to elicit candid
answers from the child. This Court concluded that the requirements of Rule
1915.11 were met, and that the approach was reasonably crafted to be fair
to the parents and the child. Id.
Because the rule states that questioning the child is to be
accomplished under the court’s supervision, the trial court can determine
what method is best to ensure that the child provides candid information,
while protecting the child as much as possible and appropriate from the
anxiety of the adversarial process, especially when there is the potential that
zealous advocates may subject the child to more pressure than intended. As
long as the trial judge ensures that that the attorneys have the opportunity
to provide questions or subject areas for inquiry, the rule should be satisfied.
_______________________
(Footnote Continued)
as neither Mother nor the trial court assert waiver, we will resolve the issue
on its merits.
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Instantly, the trial judge twice inquired whether the attorneys had additional
questions beyond those the judge thought appropriate. The trial judge was
in the best position to observe the attorneys and Child and to determine the
best method to obtain candid responses from Child. Pursuant to A.O., the
method chosen did not run afoul of Rule 1915.11. We find no error by the
trial court.
Finally, on April 14, 2015, Mother’s counsel filed in this Court an
application to withdraw as counsel. Counsel alleges that Mother has not
communicated with counsel since December 15, 2014. Counsel for Father
does not object to the application. Counsel certifies that she served the
application upon Mother. Mother has not filed a response. Given counsel’s
allegations and Mother’s lack of response, we grant counsel’s application and
permit her to withdraw from her representation of Mother in this Court. We
remind Father’s counsel that any future petitions in this Court must be
served upon Mother directly.
Order affirmed. Application granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
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