J-A08031-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
M.T.L., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
L.P.Z., :
:
Appellant : No. 2919 EDA 2015
Appeal from the Order Entered October 13, 2015
in the Court of Common Pleas of Chester County
Domestic Relations at No(s): No. 08-13842.
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 07, 2016
L.P.Z. (Mother) appeals from the order entered October 13, 2015,
which denied her request to modify the existing custody schedule and
relocate with her minor children, V.L., born in March 1999, and R.L., born in
June 2001 (collectively, Children). We affirm.
The pertinent factual and procedural history of this case has been
summarized by the trial court as follows.
[M.T.L. (Father) and Mother] are parents of [Children].
The parties first litigated custody of their children in 2008,
eventually resulting in an Order by the Honorable David Bortner
entered May 14, 2010 granting the parties shared legal custody
of [C]hildren, with Mother having primary physical custody and
Father having partial custody. Further litigation ensued on a
frequent basis, mostly being resolved by (eventual) stipulation of
the parties. In September 2011, Father filed a Petition to Modify
to which Mother filed a counterclaim for modification, and in
November of 2012, Mother re-petitioned for modification,
seeking to relocate to Toronto, Canada with [Children] for the
2013-2014 school year, which Father opposed. Those matters
* Retired Senior Judge assigned to the Superior Court.
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were resolved by the Honorable Ann Marie Wheatcraft’s Order of
May 2, 2013 (entered by agreement). Per that Order, Mother
did not relocate to Toronto; Father has partial physical custody
of [R.L.] during the academic year 5 nights out of 14, plus a
two[-]hour dinner visit every other week, and alternating
Sundays; and Father has physical custody of [V.L.] for the two
hour dinner visit every other week. As of the May, 2013 Order,
Mother and [C]hildren summer in the Toronto, Ontario area.
During those summer breaks, Father has partial custody periods
with R.L. (and V.L., if she is willing) every other weekend in
Ontario, as well as three weeks of days of vacation [sic]. Father
sees [V.L.] briefly on those weekends, but she does not
accompany [R.L.] on vacations with [Father].
On June 30, 2015, Mother filed a [p]etition for [r]elocation,
requesting to move to Canada full time with [Children]. After
three days of hearings, [the trial court] denied Mother’s petition.
Trial Court Opinion (TCO), 10/20/2015, at 1-2 (footnote omitted).
Mother filed a notice of appeal.1 Both Mother and the trial court have
complied with the directives of Pa.R.A.P. 1925.
On appeal, Mother claims that the trial court erred in: (1) denying
Mother’s request for relocation based upon the factors set forth in 23 Pa.C.S.
§§ 5337(h) and 5328(a); (2) ordering the parties to attend reunification
therapy “where its decision was based on evidence obtained outside the
1
The trial court denied Mother’s requests in the parties’ presence on
September 3, 2015 at the conclusion of trial. However, an order was not
issued until October 9, 2015. Mother initially filed a notice of appeal and
concise statement of errors complained of on appeal (Concise Statement) on
or about October 1, 2015, averring she did so because she did not want to
miss the 30-day deadline for filing an appeal. (See Mother’s Brief at 7).
Mother eventually amended her notice of appeal to reflect the official order
denying relocation, entered by the trial court on October 9, 2015.
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record;” and (3) failing to consider the custody evaluator’s opinion regarding
Children’s residing in separate households. Mother’s Brief at 4.
Once a custody order is in place, a court may modify it on petition “to
serve the best interest of the child.” 23 Pa.C.S. § 5338(a). In performing
the best-interests analysis, a trial court is required to consider the factors
set forth at 23 Pa.C.S. § 5328(a). See E.D. v. M.P., 33 A.3d 73, 80 (Pa.
Super. 2011) (“[W]hen a party files a petition for modification of a custody
order, the trial court must perform a ‘best interests of the child’ analysis
considering all of the section 5328(a) factors.”). When a party seeks to
relocate, he or she bears the burden of proving that relocation will serve the
best interests of the child, as determined by consideration of the ten factors
listed at 23 Pa.C.S. § 5337(h). In this case, with both relocation and
modification at issue, consideration of both sets of factors was required.
See, e.g., A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (“The trial
court must consider all ten relocation factors and all sixteen custody factors
when making a decision on relocation that also involves a custody
decision.”).
Following our review of the certified record, the briefs for the parties,
and the relevant law, we conclude that the on-the-record discussion
following the conclusion of testimony and the opinion of the Honorable
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Katherine B.L. Platt correctly and concisely addressed each statutory factor.2
Accordingly, we adopt the trial court’s conclusions as set forth on the record 3
and the court’s October 20, 2015 opinion as our own, and affirm the trial
court’s disposition of Mother’s issue that the trial court erred in denying
relocation pursuant to 23 Pa.C.S.A. §§5337(h) and 5328(a). The parties
shall attach redacted copies of the September 3, 2015 transcribed
conclusions of the trial court and the October 20, 2015 opinion to this
memorandum in the event of further proceedings.
Next, Mother argues that the trial court erred in ordering the parties
and Children to attend intensive reunification therapy, when the court’s
decision was premised upon information outside the record. Mother’s Brief
at 29.4 Specifically, Mother avers that the program which the trial court
2
In doing so, we find Mother’s specific argument that the “trial court failed
to address 5328(a)(6), ‘the children’s sibling relationships,’” unpersuasive
and not supported by the record. This Court finds the trial court premised
part of its decision, especially when dismissing Mother’s proposal to split
Children, on the fact that there was “no emotional benefit” for separating
Children, found that maintaining the “status quo” benefited “their
emotional and educational opportunities” and that “having their family
close at hand trumps.” N.T., 9/3/2015, at 140-41. (emphasis added).
Therefore, the trial court’s statements made it clear that it considered the
relationship of the siblings when deciding if Children should be separated
from one another. See M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
2013)(“[T]here 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.”).
3
See N.T., 9/3/2015, at 116-142.
4
Mother contends that following the trial court’s on the record denial of
Mother’s request to relocate, Mother waited for the trial court to issue an
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chose for reunification therapy was never “suggested, discussed, or
considered” by any party and the trial court “relied on evidence outside the
record to make a unilateral decision as to who[m] the parties and [Children]
should work with towards the trial court’s ultimate goal of family
reunification.” Id. at 29-30.
The trial court correctly noted that it may “as part of a custody order,
require parties to attend counseling sessions. 23 Pa.C.S. § 5333(a).” Trial
Court’s Supplemental Opinion, 12/1/2015, at 74. In doing so, the trial court
found that such therapy was appropriate for the entire family due to the
effect “Mother’s perception that she is the victim of abuse by Father” has on
V.L. Id.
In support of her argument, Mother cites several decisions by this
Court in which we have repeatedly stated that a trial court cannot consider
official order within the 15 days as prescribed by law. Mother’s Brief 29.
When no order was filed within that time, Mother prematurely filed her
notice of appeal and Concise Statement. Mother avers that it was not until
she received the trial court’s October 9, 2015 order that she became aware
of the intensive reunification program the trial court had chosen for the
parties and Children to attend. Id. Mother attempted to amend her Concise
Statement, which this Court denied. She then proceeded to file a second
appeal in hopes of consolidating, which was dismissed by this Court.
Mother’s Reply Brief at 2. While this Court acknowledges that an appellant’s
failure to include an issue within its Concise Statement constitutes waiver,
because of the peculiar procedural circumstances, Mother’s attempt to
remedy the situation, and the fact the trial court issued a supplemental
opinion addressing this issue, we will discuss this issues on its merits.
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evidence outside the record in making its determination in a particular case.5
Mother’s Brief at 30. While Mother has cited accurate case law, binding on
this Court, Mother fails to recognize that such law does not apply to the
circumstances within this case.6
Here, the trial court stated on the record that it was in favor of
reunification therapy, that it believed the whole family should participate,
and that the court needed “to do [its] due diligence” before deciding on a
reunification program. N.T., 9/3/2015, at 144. The trial court did not rely
on evidence outside the record when determining if reunification therapy
was appropriate in this case, as it had already stated in the parties’
5
See Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007) (finding the trial court
incorrectly performed its own internet job search to determine if Father had
presented accurate information regarding his inability to “find job openings
in the region.”). See also M.P. v. M.P., 54 A.3d 950 (Pa. Super 2012)
(holding the trial court erred in denying Mother’s contested petition to travel
to Ecuador based, in part, on the court’s independent research on Ecuador’s
history of noncompliance with the Hague Convention.).
6
We find Father aptly and accurately analyzed Mother’s issue and her
supporting case law when stating the following:
Here, the trial court sought the appropriate remedy to address
the evidence before it. It did not independently research for
evidence to support its denial of relocation. For example, the
trial court did not independently review psychological journals to
determine whether intensive therapy is helpful in reunification
cases. The custody evaluator was the appropriate expert who
provided evidence on that issue. Rather, having decided that
reunification therapy was warranted based upon the evidence
before it, the trial court appropriately identified a program that
could provide such therapy.
Father’s Brief at 61.
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presence, on the record, that it was in favor of such a program. The only
independent research conducted was on particular programs, which the
court already stated, without objection, it would be performing. 7 Because
Mother failed to object when the trial court stated, in her presence, that the
court would be conducting independent research, we find the issue waived.
Lastly, Mother avers the trial court erred when failing to consider the
custody evaluator’s opinion that Children would not adversely suffer if they
were residing in separate households. Mother’s Brief at 34. Mother
contends the trial court’s opinion and reasoning for denying Mother’s
proposal to move to Canada with “V.L., while Father assumes primary
custody of R.L. during the school year” was based upon misstatements of
evidence within the record. Id. Specifically, Mother notes testimony of the
child custody evaluator, Jane Iannuzzelli (Ms. Iannuzzelli), who testified that
Children had a strong relationship and that there would not be any
problems, from a psychological perspective, in separating Children. N.T.,
9/2/2015, at 134. Combined with Children’s testimony that they could live
apart, Mother avers “clearly the custody evaluator had no issue with
[Children] living in separate households given that she testified as such and
7
See N.T., 9/3/2015, at 144-145 (Discussing two particular programs the
trial court stated that it had “not done any independent research into those,”
the court needed “to do [its] due diligence” and it had not “vetted” a
proposed program yet; clearly Mother was aware that the trial court was
researching programs and voiced no concern with the court doing so.). Even
though the trial court inevitable chose a program that was not discussed at
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recommended that each child remain in the primary custody of a different
parent.” Mother’s Brief at 35.
In response, the trial court stated it had
fully considered the testimony and recommendations of [Ms.
Iannuzzelli], who performed an updated custody evaluation
(having performed an earlier one in connection with the 2013
litigation). [The trial court] did in fact follow many of her
recommendations. Contrary to the suggestion in this
assignment of error, neither Ms. Iannuzzelli’s testimony nor her
report conclude[s] that there would be no adverse effect to
[Children] living in two separate households in the event of
relocation with [V.L.] only. By way of background, Mother
proposed to Ms. Iannuzzelli (and to the [trial] court) that if she
were not permitted to move to Canada with [Children], that she
be permitted to move with V.L., leaving R.L. in Father’s primary
custody in Pennsylvania (with certain performance conditions).
Ms. Iannuzzelli opined unequivocally that relocation to Canada
was not in [Children’s] best interests and stated that having
parents living close together is “better prognostically for
[Children] in terms of how they fare after a divorce.” She also
stated in her testimony that, regarding V.L., “I would be
concerned that she was isolated from her brother and her
[Father] by virtue of the move…”. In her evaluation report []
Ms. Iannuzzelli indicated that she considered Mother’s proposal
to go to Canada with V.L. and leave R.L. with Father during the
school year to be Mother’s “actual proposal.” As a result she
reviewed the impact of the proposal on [Children] and rejected it
as not being in their best interests. She did, however,
recommend that both parents remain in the Philadelphia region
and that Father have primary custody of R.L. Mother certainly
never referenced the latter recommendation nor did she argue
for it at trial.
As to Ms. Iannuzzelli somehow endorsing the split long
distance custody proposal, there is no support for that anywhere
in the record. In her testimony, Ms. Iannuzzelli stated “And as
far as R.L. is concerned, [M]other’s proposal to me – now that I
understand that – I’m not sure that’s not where she is at this
trial, the record is clear that court was conducting independent research on
reunifications programs.
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point, I hope not, but that R.L. be – it was kind of an all or
nothing proposal with [F]ather during the school year and all
vacation time with [M]other is a very much an all or nothing
proposal. I am hoping that has changed since then.” It is clear
that Ms. Iannuzzelli did not favor the long distance [split], and
my ruling is consistent with that opinion.
TCO, 10/20/2015, at 9-11 (citations omitted).
We discern no abuse of discretion. In doing so, this Court finds the
trial court adequately considered all evidence, including Ms. Iannuzzelli’s
report. Specifically, we note that Mother’s alternative request to separate
Children and relocate with V.L. was in direct contradiction to Ms.
Iannuzzelli’s unequivocal assertion that she did not “believe that the
relocation is in [Children’s] best interest.” N.T., 9/2/2015, at 134.
Based on the above, we conclude that the record supports the trial
court’s determination to deny Mother’s petition for relocation.8 Accordingly,
we affirm the order of the trial court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
ProthonotaryDate: 6/7/2016
8
Notably, Mother stated that she would remain in Pennsylvania if relocation
was denied. See N.T., 9/3/2015, at 140 (“Given that [Mother] has said that
if [the trial court did not] grant relocation, she will stay here…”).
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Circulated 05/16/2016 03:42 PM