J. A03008/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.R.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
E.J.W. :
: No. 1650 EDA 2015
Appeal from the Order August 12, 2015
In the Court of Common Pleas of Chester County
Civil Division No(s).: 09-13979
BEFORE: GANTMAN, P.J., MUNDY,J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 31, 2016
Appellant, J.R.W., (Mother) appeals, pro se, from the August 12, 2015
order of the Court of Common Pleas of Chester County denying Mother’s
Petition to Relocate from Pennsylvania to Florida with her two sons and
ordering the current custody order, granting shared legal and physical
custody to Mother and Appellee, E.J.W., (Father) to remain in place as long
as Mother continues to live in Pennsylvania. After careful review, we
conclude the trial court properly analyzed the sixteen custody factors 1 and
the ten relocation factors2 and the record supports the trial court’s findings.
Therefore, we affirm.
1
23 Pa.C.S. § 5328(a).
2
23 Pa.C.S. § 5337(h).
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FACTUAL AND PROCEDURAL HISTORY
Mother and Father were married in Florida in 2002. Trial Ct. Op. and
Custody Order, dated 5/13/15, at 1 (TCO, 5/13/15). Their sons, A.W. (DOB:
12/03) and D.W. (DOB: 2/05), were both born in Florida. 3 Id. In 2006, the
family moved to Pennsylvania. Id. In December of 2007, Mother and
Father were having relationship issues and Mother moved back to Florida.
The children spent several months living with each parent until August of
2008 when Mother and Father reconciled in Pennsylvania. N.T., 4/29/15, at
21-24. From August of 2008 until December of 2014 all parties continuously
lived in Pennsylvania. TCO, 5/13/15, at 1. The parties separated in May of
2009 and divorced in 2010. Id. Since February 12, 2010, both parties have
shared legal and physical custody of their sons, and the children have spent
equal time with both parents. Trial Ct. Op., dated 9/16/15, at 1 (TCO,
9/16/15).
Both parties have since remarried. Id. at 2. Mother has a fourth child
with her new husband and Father has three new stepchildren with his new
wife. N.T. at 34, 109.
3
When Mother and Father got married, Mother had a daughter named T.C.
who became Father’s stepdaughter. Father considers T.C. to be “his own
daughter.” T.C. informally participates in all of the custody arrangements
that Mother and Father have in place for A.W. and D.W., and spends half of
her time with Father. However, T.C. is not a subject of the Petition for
Relocation that is currently on appeal.
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Father moved from West Chester, Pennsylvania, to Wilmington,
Delaware, in December of 2014 but was still able to maintain the “50-50
custody arrangement” that was ordered in 2010. N.T. at 109, 160.
On July 28, 2014, Mother notified Father of her intent to relocate with
the children to Florida because of better job opportunities and family and
friend contacts. TCO, 9/16/15, at 2. On August 4, 2014, Father filed his
objection to relocation. Id. On March 10, 2015, Mother filed a Petition for
Approval of Interstate Relocation and on April 29, 2015, the trial court held a
hearing on the matter. Id.
Testimony at trial indicated that both parents are equally involved with
their children’s school and activities, although father is the primary
transporter of the children. N.T. at 37-38, 54, 68-70, 77-80, 135-140. Both
children are happy at school and involved in sports, including football and
karate. Id. at 67-68, 77-79, 84, 89. Both children are close with their
stepsiblings. Id. at 110. D.W. testified that he wanted to live with Father,
and A.W. testified that he wanted to live with both parents. Id. at 84, 89.
Father has approximately twenty relatives in the Pennsylvania area
while most of Mother’s immediate family members live in Florida. Id. at 15-
17, 43, 131-134.
Father owns a successful painting business. Id. at 120. Mother has
had various jobs in Pennsylvania, obtained her college degree in 2013, but
stated that she has been unable to find a job in her field. Id. at 62-65.
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Mother wants to attend nursing school in Florida, and has a job opportunity
in Florida. Id. at 32, 44.
On May 13, 2015, the trial court denied Mother’s Petition to Relocate
and issued an Opinion and Custody Order. Mother filed a Motion for
Reconsideration on May 26, 2015, which the trial court granted on June 1,
2015 so that Mother could provide documentary evidence of her efforts to
obtain employment in Pennsylvania. On August 12, 2015, the trial court
again denied Mother’s Petition for Relocation. Mother filed a timely appeal.
Mother and trial court both complied with Pa.R.A.P. 1925.
ISSUES RAISED ON APPEAL
Mother raises the following issues on appeal:
a. Whether the Trial Court erred and/or abused its discretion
concluding that the best interests of the children would be
served by continuing Mother’s shared physical custody on the
condition that Mother remain in West Chester, Pennsylvania,
rather than analyzing both the residence of Mother in Valrico,
Florida, and the Father’s residence in Wilmington, Delaware
on equal footing in a custody determination where there was
no prior primary custody determination made by the court.
b. Whether the Trial Court erred and/or abused its discretion in
placing emphasis on the lack of “necessity” of the Mother’s
move to Valrico, Florida where the statutes and case law do
not require the custodial parents to show that a move is
necessary before relocation is granted.
c. Whether the Trial Court erred and/or abused its discretion in
disregarding the number of factors in favor of Mother having
primary custody pursuant to Pa.C.S.A. 5328(a).
d. Whether the Trial Court erred and/or abused its discretion in
ignoring Pennsylvania’s policy of “family unity,” and failing to
make any findings of “compelling reasons” (which are
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mandatory) as to why the child and their two half-siblings,
with whom they had grown up with, should not continue to be
raised together.
e. Whether the Trial Court erred and/or abused its discretion for
failing to consider Father’s financial motivation for objecting
to Mother’s relocation.
f. Whether the Trial Court erred and/or abused its discretion by
not analyzing the ten factors for relocation pursuant to 23
Pa.C.S.A. 5339(h) as stated.
g. Whether the Trial Court erred and/or abused its discretion in
denying mother’s request to relocate by concluding that
Mother did not convince the court that relocation was in the
children’s best interest and to have the children’s relationship
with Father so materially and substantially altered.
h. Whether the Trial Court erred and/or abused its discretion by
finding that [Mother] made a unilateral decision to remove
the children from Pennsylvania, therefore thwarting the
relationship between Father and children.
Appellant’s Brief at 5-7 (re-ordered for ease of disposition).
LEGAL ANALYSIS
In this case, the court issued an Opinion and Custody Order that
addressed each of the sixteen custody factors and ten relocation factors and
the record supports the findings. TCO, 5/13/15, at 5-9.
When reviewing child custody and relocation matters, our standard of
review is well settled:
Our paramount concern and the polestar of our analysis in this
case, and a legion of prior custody cases is the best interests of
the child. The best interests standard, decided on a case-by-case
basis, considers all factors which legitimately have an effect
upon the child's physical, intellectual, moral and spiritual well-
being. On appeal, our scope of review is broad in that we are not
bound by deductions and inferences drawn by the trial court
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from the facts found, nor are we required to accept findings
which are wholly without support in the record. On the other
hand, our broad scope of review does not authorize us to nullify
the fact-finding function of the trial court in order to substitute
our judgment for that of the trial court. Rather, we are bound by
findings supported in the record, and may reject conclusions
drawn by the trial court only if they involve an error of law, or
are unreasonable in light of the sustainable findings of the trial
court. Further, on the issues of credibility and weight of the
evidence, we defer to the findings on the trial judge.
Additionally, appellate interference is allowed only where it is
found that the custody order is manifestly unreasonable as
shown by the evidence of record.
Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
The Child Custody Act, 23 Pa.C.S. §§5321-5340, governs all custody
proceedings commenced after January 24, 2011. E.D. v. M.P., 33 A.3d 73,
77 (Pa. Super. 2011). A trial court must consider sixteen custody factors4
when deciding a Petition for Custody and ten relocation factors 5 when
deciding a Petition for Relocation. The party proposing the relocation has the
burden of establishing that the relocation will serve the best interest of the
child. 23 Pa.C.S. § 5337(i)(1).
We review Mother’s arguments recognizing that “we are bound by
findings supported in the record, and may reject conclusions drawn by the
trial court only if they involve an error of law, or are unreasonable in light of
the sustainable findings of the trial court.” Saintz, 902 A.2d at 512.
4
23 Pa.C.S. § 5328(a).
5
23 Pa.C.S. § 5337(h).
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Mother first argues that the trial court erred and/or abused its
discretion by not “analyzing both the residence of Mother in Valrico, Florida,
and the Father’s residence in Wilmington, Delaware[,] on equal footing in a
custody determination where there was no prior primary custody
determination made by the court.” Appellant’s Brief at 5. This argument
lacks merit.
Contrary to Mother’s argument, the trial court did, in fact, engage in a
dual analysis of both custody and relocation factors in its Opinion and
Custody Order. TCO, 5/13/15, at 2-9. The trial court analyzed the sixteen
custody factors and the ten relocation factors and the record supports the
court’s findings. Id. Mother and Father had been sharing physical custody
of the children for four years without problem, and the custody arrangement
was only in dispute when Mother chose to relocate. Our Court has deemed
that in this situation a dual analysis with emphasis on relocation factors is
appropriate. See S.J.S. v. M.J.S., 76 A.3d 541, 554 (Pa. Super. 2013)
(concluding that dual analysis, with an emphasis on relocation factors, is
proper when custody arrangement is in dispute because of a relocation
issue). Therefore, we find no error.
Mother next argues that the trial court erred and/or abused its
discretion in placing emphasis on the lack of necessity of Mother’s move to
Valrico. Appellant’s Brief at 5. The trial court stated:
Mother’s decision to seek removal of the children from their
familiar community and family environment is based in part on
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improving her opportunity for better employment and education.
However, Mother presented little evidence that she had
attempted to improve these same aspects of her life while
remaining in the local areas, which would allow for both parents
to remain actively involved in their children’s daily lives. Unlike
other cases where a parent is required to move by necessity of
circumstances, i.e. no job, no support, no family, etc., the
instant case fails to present any such compelling reason.
TCO, 5/13/15, at 3-4.
This is a challenge to the weight of the evidence, and “on the issues of
credibility and weight of the evidence, we defer to the findings of the trial
judge.” Saintz, 902 A.2d at 512. As the record supports the trial court’s
findings, we find no abuse of discretion.
Mother’s third argument is that the trial court erred and/or abused its
discretion by disregarding the number of factors in favor of Mother having
primary custody pursuant to 23 Pa.C.S § 5328(a). Appellant’s Brief at 5.
This argument is without merit. The statute does not indicate that a trial
court should grant custody to the parent who has the most factors in their
favor. Rather, the standard is the “best interest of the child.” 23 Pa.C.S. §
5328(a). Further, “[i]t is within the trial court's purview as the finder of fact
to determine which factors are most salient and critical in each particular
case.” M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (citation
omitted). As discussed above, it was proper for the trial court to engage in
a dual custody and relocation analysis. Accordingly, we find no error or
abuse of discretion.
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Mother’s fourth, fifth, and sixth arguments all claim that the trial court
erred and/or abused its discretion by not properly considering the following:
sibling relationships, father’s financial motivation for objecting to mother’s
relocation, and the ten factors for relocation pursuant to 23 Pa.C.S. §
5339(h). We disagree.
The trial court analyzed the sibling relationships under 23 Pa.C.S. §
5328(a)(6) and made the following findings:
The children’s older half-sister and younger half-brother reside in
Chester County with Mother, and have always been a part of the
children’s lives. The children have also established relationships
with Father’s new wife and her children. Relocation could affect
all of these relationships.
TCO, 5/13/15, at 4. It is within the trial court’s discretion to determine
which factors are most significant. See M.J.M., 63 A.3d at 339. These
findings are supported in the record, and this Court is bound by them.
Saintz, 902 A.2d at 512. Accordingly, we find no abuse of discretion.
The trial court analyzed father’s motivation for opposing the relocation
under 23 Pa.C.S. § 5337(h)(8) and made the following findings:
Father believes that relocation would be disruptive to the
children, would have a detrimental effect on his relationship with
them, and would significantly impair his ability to exercise his
custodial rights.
TCO, 5/13/15, at 9. The trial court chose not to address any potential
financial motivation for father opposing the relocation, which is within the
trial court’s discretion. See M.J.M., 63 A.3d at 339. The record supports
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the trial court’s findings and we will not disturb them. See Saintz, 902 A.2d
at 512. Therefore, we find no abuse of discretion.
Despite Mother’s argument to the contrary, the trial court did analyze
each of the ten relocation factors under 23 Pa.C.S. § 5337(h)(8) and made
reasonable findings of fact based on the evidence at trial. T.C.O., 5/13/15,
at 7-9. The trial court concluded:
Mother, as the party proposing the relocation, bore the burden of
establishing that relocation would serve the best interests of the
children. She did not. After consideration of the above-listed
factors, we deny Mother’s petition to relocate, because, on
balance, she has not convinced the Court that it is in the
children’s best interest to have their relationship with their
Father so materially and substantially altered.
TCO, 5/13/15, at 9. We agree with the trial court’s conclusion and find that
it did not abuse its discretion.
Mother next argues that the trial court erred and/or abused its
discretion when it concluded she “did not convince the court that relocation
was in the children’s best interest and to have the children’s relationship
with Father so materially and substantially altered.” Appellant’s Brief at 7.
This argument is without merit. As discussed several times above, the trial
court properly addressed sixteen custody factors and ten relocation factors
and made reasonable findings of fact based on evidence presented at trial,
we are bound by those findings. Saintz, 902 A.2d at 512. Accordingly,
Mother’s argument fails.
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Mother’s last argument is that the trial court erred and/or abused its
discretion by “finding that [Mother] made a unilateral decision to remove the
children from Pennsylvania, therefore thwarting the relationship between
Father and children.” Appellant’s Brief at 6.
With respect to its analysis of Section 5328(a)(1), the trial court
stated:
Based on her unilateral decision in the past to remove the
children from Pennsylvania without Father’s agreement, there is
some doubt regarding how much Mother will encourage such
contact between the children and Father that does not meet her
terms. However, in recent years, both parties have encouraged
such conduct, and it is anticipated that this conduct will
continue…
TCO, 5/13/15, at 2. Then, with respect to its analysis of Section 5337(h)(5),
the trial court stated:
As previously mentioned, Mother in the past made the unilateral
decision to remove the children from Pennsylvania. However,
there is no established pattern of conduct by either party to
thwart the relationship between the children and the other party.
Id. at 8.
Regarding whose decision it was for Mother to move to Florida in
December of 2007, the testimony of the parties is ambiguous. Mother
testified, “I went ahead and I had got a moving truck and we packed up the
kids and we went and resided with my parents [in Florida].” N.T. at 21.
Mother went on to testify that Father joined her and the kids at the end of
the month to celebrate Christmas. Id. Father testified:
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In 2007, the end of the year came, and December 20th, 19th and
20th, it was, we called a moving truck. We kind of knew we were
done. We were officially done, probably several times before
that, but I think it drug [sic] out so that’s when we had the final
we are done conversation. The plan was to go to Florida. She
was to go to Florida. We had Christmas, and then my son’s
birthday, [A.W.]’s birthday was a few days after Christmas. So
the plan was to go down. She went down first. I believe I flew
down, and I hung around until after my son’s birthday. In that
time, of course, we’re in a relationship and we are at a
crossroads. We don’t know who’s going where with what. What
are we going to do….[W]e eventually had a discussion of what
will happen. We came to the conclusion that I was in a better
place to provide for the children. I was working. I could take
care of them. I can get them where they need to be and
[Mother] was unemployed….I came back and I had [A.W.] and
[D.W] for a period of time after that.
N.T. at 123-125.
It is not clear from the testimony that Mother made a “unilateral”
decision to move to Florida. Rather, there is no actual testimony as to
whether it was Mother’s decision, Father’s decision, or a joint decision.
However, it is clear that Father helped her move, talked with her about
decisions, and they both agreed that Mother would remain in Florida while
Father went back to Pennsylvania with the children for a period of time.
Accordingly, we find that the trial court incorrectly characterized Mother’s
December 2007 decision to move to Florida as “unilateral” when the record
does not support that conclusion. N.T. at 23, 123-125.
Nevertheless, we conclude Mother was not adversely affected by this
error because the trial court did not use it to make findings against Mother.
Rather, the court concluded: “…in recent years, both parties have
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encouraged [frequent and continuing contact], and it is anticipated that this
conduct will continue” and “…there is no established pattern of conduct by
either party to thwart the relationship between the children and the other
party.” TCO, 5/13/15, at 2, 8.
For the reasons discussed above, we conclude that the trial court did
not abuse its discretion or err as a matter of law in denying Mother’s Petition
to Relocate and in ordering that Mother and Father continue to share legal
and physical custody of the couple’s two children.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2016
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