J-A07008-16
2016 PA Super 123
D.K.D., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
A.L.C.,
Appellee No. 1276 WDA 2015
Appeal from the Order July 31, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-09-008227-003
BEFORE: BOWES, MUNDY AND JENKINS, JJ.
OPINION BY BOWES, J.: FILED JUNE 15, 2016
D.K.D. (“Father”) appeals from the July 31, 2015 custody order that
granted the motion filed by A.L.C. (“Mother”) to relocate to Treasure Island,
Florida and denied his motion to modify an existing custody order. We
reverse and remand for further proceedings.
Mother and Father married on March 29, 2004, separated during 2009,
and divorced in March of 2015. The family moved to the Pittsburgh area two
years into the marriage. The marital home was in Imperial, Pennsylvania.
Following the separation, Father, who currently works for the Federal Bureau
of Investigation (“FBI”) Joint Terrorism Task Force, moved approximately
twelve miles from the marital residence to his parents’ home in
Burgettstown. Until Mother moved to Florida during early 2015, she
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remained in the marital home with the parties’ son L.D., who was born of
the marriage during February 2008.
As L.D.’s therapeutic needs weighed heavily on the trial court’s
custody and relocation decisions, we summarize the relevant facts herein.
In June of 2009, L.D.’s pediatrician, Patricia Miller, M.D., identified significant
language and speech delays. Subsequent testing revealed a possible Autism
Spectrum Disorder, and during January 2011, L.D. was diagnosed with
Pervasive Development Disorder, not otherwise specified.1 He was
prescribed thirty hours per week of intense outpatient therapy, most of
which was provided in the marital home. Stability and routine are
paramount to L.D.’s continued development.
Meanwhile, following the marital breakdown, on July 1, 2009, Father
filed a petition for divorce that included a count for custody of L.D. The trial
court entered a consent order that granted shared legal custody and
awarded Mother primary physical custody. Father received periods of
physical custody of L.D. for two hours on Tuesday and Thursday evenings
and for three hours on alternating Saturday afternoons. The accord
expressly limited the evening custody to the marital residence. While Father
was authorized to exercise his custodial rights outside of the home during
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1
Dr. Miller explained that Pervasive Development Disorder is a nonspecific,
descriptive diagnosis within the autism spectrum of developmental delays in
two or more areas. N.T., 2/19/15, at 94.
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Saturday afternoons, in reality, Mother regularly objected to L.D. leaving the
home with Father due to her concern that the disruption would be harmful to
L.D.’s condition. Father generally acquiesced to Mother’s demands and
exercised weekend custody at the marital residence.
On September 25, 2014, Father filed a petition to modify the consent
order. He sought larger periods of physical custody, more specific vacation
and holiday schedules, and better enforcement of his custodial rights.
Approximately one month later, Mother countered by issuing notice of her
proposed relocation to Ocklawaha, Florida, so that she and L.D. could reside
with her mother (“Maternal Grandmother”).
Father opposed the proposed relocation, and the trial court held a two-
day trial on the parties’ respective petitions. Mother and Maternal
Grandmother testified in support of the proposed relocation. Father testified
on his own behalf and presented Dr. Miller, and his parents (“Paternal
Grandparents”) as witnesses. Following the testimony and review of the
parties’ proposed findings of fact, on March 20, 2015, the trial court denied
Mother’s proposed relocation. The trial court delineated the reasons for its
decision, and addressed the ten relocation factors under 23 Pa.C.S. §
5337(h), reproduced infra. It found that the only factor that militated in
favor of relocation concerned the anticipated enhancement to Mother’s
quality of life. The remaining factors, including consideration of L.D.’s
quality of life, either weighed against relocation, were determined to be
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neutral, or were inapplicable. In sum, the court reasoned, “While Mother
demonstrated that relocating to Florida would enhance her general quality of
life, she failed to meet her burden that relocation is in [L.D.’s] best interest.”
Findings of Fact, 3/23/05, at 15.
In addition, the trial court granted Father’s motion to modify the
custody arrangement. It alleviated Mother’s precondition that Father
exercise custody at the marital home and fashioned a custody schedule that
increased Father’s periods of physical custody gradually over four months.
The expansion culminated with Father exercising overnight custody on
alternating weekends from Friday evening until Sunday evening. The court
also outlined a defined custody schedule for L.D.’s academic breaks,
holidays, and summer vacation.
On April 8, 2015, Mother filed a motion for reconsideration and a
motion for special relief. The motion for reconsideration noted that the trial
court had not established a custody schedule in the event that Mother
elected to relocate to Florida without her son. The concomitant motion for
special relief informed the court that, while the court’s decision was pending,
Mother, who attained a Juris Doctor degree, had accepted a job in Florida as
a claims assistant at the Department of Veterans Affairs and had devised an
interim plan for Maternal Grandmother to care for L.D. in the marital
residence while she began immediate employment. Mother continued that
she intended to purchase a home in Florida in anticipation of the trial court’s
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reconsideration of its denial of her prior petition for relocation. Specifically,
she averred, “Mother plans to have a home purchased in the geographic
area of her employer in which she and her mother will live, with, if the Court
permits, the child.” Petition for Special Relief, 4/15/15, at 3. Mother
asserted that the employment offer was a significant factor that was not of
record during the prior hearing and she contended that “other significant
changes have occurred,” which she failed to identify in the petition. Id. at
2. Mother requested that the court re-open the record to take additional
evidence relative to her relocation.
Within the thirty-day period to appeal the March 23, 2015 custody
order, the trial court granted Mother’s motion to reconsider, reopened the
record, and scheduled an evidentiary hearing for June 2015. In light of the
court’s decision to reopen the record, Father submitted a motion to amend
his original petition for modification in order to address Mother’s acceptance
of employment in Florida. The trial court granted Father’s motion to amend.
Thereafter, Mother issued an amended notice of relocation proposing to
relocate with L.D. to Treasure Island, Florida, approximately two hours away
from Maternal Grandmother’s home. Again, Father opposed relocation.
On July 1, 2015, the trial court convened a third day of trial to address
Father’s amended motion for modification and Mother’s amended relocation
petition. Mother and Maternal Grandmother again testified in favor of
relocation. Father and his parents testified in opposition to relocation and in
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favor of granting Father primary physical custody of the child in
Pennsylvania. On August 3, 2015, the trial court issued amended findings of
fact and entered a custody order granting Mother’s request to relocate with
L.D. to Treasure Island, Florida.
Again, the court delineated its consideration of the § 5337(h)
relocation factors and the relevant best-interest factors outlined in 23
Pa.C.S. § 5338(a). As it relates to Mother’s amended relocation petition, the
trial court determined that factor two, which it had previously determined to
weigh against relocation, was now neutral. More importantly, the trial court
changed its opinion of the seventh factor regarding the enhancement of
L.D.’s quality of life and found that the two factors that supported relocation
to Florida, i.e., the enhancement to Mother and L.D.’s respective quality of
life, prevailed over the three factors that weighed against relocation: the
deleterious effect of relocation on L.D.’s relationship with Father; the
feasibility of preserving that relationship considering logistic and financial
constraints; and Mother’s established pattern of conduct to thwart the
growth of the father-son relationship.
In denying Father’s petition to modify, the court initially determined
that the one best-interest factor in favor of granting Mother primary physical
custody, i.e., the party more likely to attend to L.D.’s daily needs,
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outweighed the single factor that militated in favor of Father: Mother’s lack
of cooperation and contribution to the level of conflict.2 It found that the
remaining best-interest factors either supported both parents equally or
were inapplicable.
Father filed a timely appeal and a contemporaneous concise statement
of errors complained of on appeal. He identifies five issues for our review:3
I. The trial court committed [an] abuse of discretion in its
application of 23 Pa.C.S. § 5328.
II. The trial court committed [an] abuse of discretion in
applying the best interest standard in a gender-biased manner.
III. The trial court erred in finding that the Mother provides
more stability for the child in a gender-biased manner.
IV. The trial court committed [an] abuse of discretion in failing
to consider the father-child relationship in awarding primary
physical custody to Mother.
V. The trial court abused its discretion in failing to require
Mother to fully meet her burden in determining that the
relocation is in the child’s best interest.
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2
As it relates to both factors, the trial court determined that the single
factor in favor of the respective parent did not weigh significantly against the
other parent. Specifically, the court found that, although Mother was more
likely to attend to L.D.’s daily needs, it was confident that Father would
satisfy L.D.’s needs if given the opportunity. Similarly, the court determined
that, while Mother’s lack of cooperation militated in Father’s favor, it
anticipated that Mother would be more cooperative and accommodating to
Father’s requests in the future.
3
Father lists six issues in his brief; however, he presents argument for only
five of those claims.
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Father’s brief at ii. Mother did not file a brief to level any countervailing
arguments.
We review the trial court’s custody order for an abuse of discretion.
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial
court’s factual findings that are supported by the record and its credibility
determinations. Id. However, we are not bound by the trial court’s
deductions or inferences, nor are we constrained to adopt a finding that
cannot be sustained with competent evidence. A.V. v. S.T., 87 A.3d 818,
820 (Pa.Super. 2014). In sum, this Court will accept the trial court’s
conclusion unless it is tantamount to legal error or unreasonable in light of
the factual findings. S.W.D., supra at 400.
The primary concern in any custody case 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.” Saintz v. Rinker,
902 A.2d 509, 512 (Pa.Super. 2006) (citing Arnold v. Arnold, 847 A.2d
674, 677 (Pa.Super. 2004)).
First, we address Father’s complaints that the trial court failed to
utilize gender-neutral considerations when addressing the best interest
factors under §§ 5328(a) and 5337(h). This discussion subsumes the
second and third issues that Father levels in his brief. For the following
reasons, both assertions fail.
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Father baldly asserts that the trial court’s custody/relocation
determination was “a glaring example of the gender bias in custody
decisions that is not permitted under Pennsylvania case law.” Father’s brief
at 12. He highlights that Pennsylvania abolished the tender years doctrine,
which formed a preference in favor of mothers of preschool-aged children,
and he notes that when both parents are determined to be competent,
equally-shared physical custody is favored.
Father is correct that gender-neutral custody considerations are well
ensconced in Pennsylvania jurisprudence, and the Custody Law does not
countenance presumptions between parents based upon gender or any other
characteristics. See 23 Pa.C.S. § 5327(a) (“In any action regarding the
custody of the child between the parents of the child, there shall be no
presumption that custody should be awarded to a particular parent.”).
However, Father failed to establish either that the trial court was biased
against him or that the court fashioned a presumption in Mother’s favor.
Father complains that, even though the court recognized his
relationship with L.D. and acknowledged Mother’s persistent intermeddling
with his ability to fully exercise his custody rights, the court nevertheless
failed to consider these dynamics in applying the best interest factors or in
granting Mother’s petition to relocate to Florida. We disagree with Father’s
characterization of the trial court’s analysis. In actuality, the certified record
demonstrates that the trial court weighed both the fact that Mother acted as
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L.D.’s primary caretaker since birth and the reality that Father’s attempts to
become more involved in his son’s life and shoulder more of the parental
burden were frustrated by Mother’s overbearing nature, L.D.’s therapeutic
needs, and Father’s parental shortcomings. The court contemplated each of
these facts, which are all supported by the record, along with the other
statutory determinations and concluded that it would be in L.D.’s best
interest to remain in Mother’s primary physical custody and relocate to
Florida. While the trial court’s custody decision is by no means unassailable,
it clearly was not the product of gender-bias or a presumption in
contravention of § 5327(a). These claims fail.
As Mother exercised primary physical custody of L.D. from the outset,
the trial court’s denial of Father’s request for primary custody flowed from its
decision to permit Mother to relocate to Florida with L.D. Thus, we next
address the merits of the trial court’s decision to grant Mother’s petition for
relocation, which Father challenges in the fifth question presented for
review.
The Child Custody Law enumerates ten factors a court must consider in
determining whether to grant a proposed relocation:
(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
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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. § 5337(h). As the custodial parent seeking to relocate with L.D.,
Mother had the burden of establishing that relocation is in her son’s best
interest. See 23 Pa.C.S. § 5337(i) (“Burden of proof.- (1) The party
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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 subsection (h).”).
Herein, the trial court initially found that Mother failed to satisfy her
burden of proof. However, based upon Mother’s motion for reconsideration,
the trial court re-opened the record, and revisited the issue in light of
Mother’s additional evidence that she had obtained employment in Florida
earning between $36,000 and $41,000 and that Maternal Grandmother had
committed to purchase Mother a $435,000 home in Treasure Island, Florida.
Following the third evidentiary hearing, the trial court reversed its course
and determined that Mother, in fact, satisfied her burden of proof.
Father challenges the court’s determination that Mother established
that relocation was in their son’s best interest. He argues that while Mother
demonstrated that moving to Florida would enhance her general quality of
life, she failed to prove that relocation was in L.D.’s best interest under the
ten factors listed in § 5337(h). Although Father discusses each of the ten
relocation factors individually, mindful that the trial court altered its original
perspective of only five factors, we focus on the court’s re-consideration of
those five points.
Our review concentrates upon the second, third, fifth, sixth, and
seventh relocation factors identified in § 5337(h). We discuss the factors
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sequentially, and for the reasons expressed infra, we find that the trial
court’s volte-face was not supported by the record.
First, relating to factor two, which concerns L.D.’s developmental
needs and the likely impact that relocation would have upon his physical,
educational, and emotional development, the trial court initially found that
this factor weighed against relocation. In essence, the trial court accounted
for the various ways that relocation would affect L.D.’s difficulty adjusting to
foreign environments and determined that the factor militated against
relocation. However, upon review of Mother’s new evidence, it relaxed its
concerns, and concluded “[t]his factor did not weigh in favor of or against
relocation.” Findings of Fact, 8/3/15, at 13.
In the March 2015 order denying Mother’s petition for relocation, the
trial court noted that Mother offered no evidence of L.D.’s proposed health
care options in Florida, and observed that it would be difficult for L.D. to
adjust to a new school, neighborhood, and friends, and it recognized that the
proposed move would disrupt his stability and routine. Findings of Fact,
3/17/15 at 7-10. However, in contrast to the reasoned determination in its
March order, the trial court subsequently determined that this factor no
longer militated against relocation. In addition to finding that Mother
supplemented the record regarding pediatricians and health care facilities
near Treasure Island, the Court reasoned that, since Father lived in a
different school district from the marital residence, L.D. would have to adjust
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to a new school regardless of whether he relocated to Florida or remained
with Father in Pennsylvania. The court also noted that, since Pennsylvania
and Florida both utilize the academic curriculum known as Common Core,
L.D. would find continuity in his education. Thus, upon consideration of
Mother’s new evidence, the trial court changed its perspective of this factor
as supporting relocation.
The trial court’s rationale is flawed. Contrary to the trial court’s new
perspective, the disruption to L.D.’s routine is not inevitable regardless of
the proposed relocation. Preliminarily, the trial court discounted Father’s
commitment to move to the West Allegheny School District so as to not
disturb L.D.’s education. Additionally, even to the extent that the trial court
was not persuaded by Father’s intention to move to accommodate his son,
the court failed to acknowledge that, by remaining in Pennsylvania
approximately twelve miles from the former marital home, L.D. would
preserve routines and friendships by participating in activities that are not
specific to the West Allegheny School District, i.e., attending private karate
instruction, visiting friend’s homes, and enjoying programs at the Carnegie
Museum and Carnegie Science Center in Pittsburgh. Moreover, the court
neglected to acknowledge that, beyond education, remaining in Pennsylvania
would provide L.D. continued access to Dr. Miller and, if needed, the
behavioral therapists. Thus, while the trial court initially accounted for L.D.’s
difficulty adjusting to a foreign environment, upon reflection, it discounted
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those concerns in favor of the new evidence that Mother used to bolster her
otherwise deficient petition to relocate.
Likewise, the trial court relaxed its position in relation to factor three
concerning the feasibility of preserving L.D.’s relationship with Father. The
trial court initially found that, due to logistics, expenses, and travel time,
relocation was not feasible to preserve Father’s custodial rights. Upon
reconsideration, however, the court reasoned that it could conceivably
fashion a custody schedule that awarded Father significant periods of
custody during holidays and summer vacation in a way that approximated
the custodial periods he exercised in the March 2015 order. Nevertheless, in
ultimately concluding that this factor weighed against relocation, the court
determined that the prospective relocation would impair the existing father-
son relationship.
Despite indicating that relocation was unfeasible in addressing this
factor, in reality the trial court not only sustained the feasibility of this type
of arrangement, but it crafted a post-relocation custody schedule that
employed the deficient approach. Father was awarded alternating weekend
custody in Florida, one week of custody during L.D.’s winter and spring
breaks, and a maximum of four consecutive weeks of custody during L.D.’s
summer break. Hence, in facilitating Mother’s relocation to Florida, the court
utilized the identical scheme that it explicitly found “would not be
feasible . . . to preserve [Father’s] existing relationship with L.D.” See
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Findings of Fact, 8/3/15, at 14. In doing so, the trial court overlooked
evidence that Father’s position with the FBI Joint Terrorism Task Force
restricted his availability during major holidays. Thus, the trial court cannot
cure the substantial disparity in custody following relocation simply by
amassing the majority of Father’s custodial periods during Christmas, Easter,
and summer vacation.
Moreover, concerning factor five, in granting Mother’s petition for
relocation in derogation of Father’s custodial rights, the trial court
disregarded its express finding that “Mother historically refused to grant
father’s requests to spend additional time with [L.D.] or permit overnight
physical custody between Father and [L.D.]” and discounted its observation
that “[t]his conduct has had the effect of stalling the development of [L.D.’s]
relationship with his Father.” Id. at 15. The court also noted that when
Mother began her employment in Florida, she elected to have Maternal
Grandmother move to Pennsylvania to care for L.D. rather than increase
Father’s parental role. However, notwithstanding record evidence of
Mother’s ensconced pattern of thwarting Father’s relationship with L.D., the
trial court diminished Mother’s actions, ostensibly in favor of the ambitious,
but unsupported, belief that Mother would be more cooperative now that she
succeeded in relocating to Florida. We disagree with the court’s rationale.
Concisely put, Mother’s proposal that Father visit their son in Florida,
presumably pursuant to her terms and conditions, do not negate the
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cumulative effects of her campaign of interference with Father’s custodial
rights.
In addition to weakening its opposition to relocation under factors two,
three, and five, the trial court became even more resolute in favor of
relocation under factors six and seven concerning whether relocation would
enhance the respective quality of life of Mother and L.D. In relation to
Mother, the trial court initially concluded that the then-proposed relocation
to Ocklawaha, Florida, to reside rent-free with Maternal Grandmother would
enhance Mother’s financial and emotional outlook. Recall that Mother, who
had not yet obtained employment in Florida, intended to purchase a home in
Ocklawaha with the proceeds from the sale of the marital residence and
utilize Maternal Grandmother for childcare. The court determined that this
factor in Mother’s favor was insufficient to warrant relocation.
Upon reconsideration of Mother’s petition to relocate, however, the
trial court shifted its focus to the improvements to Mother’s quality of life
that flowed from her newly acquired employment. Specifically, the court
highlighted that Mother would earn approximately $36,000-$41,000 per
year, albeit in an entry-level clerical position outside of her professional
training. The court stressed that, “[d]espite significant efforts, Mother has
been unable to obtain employment in Pennsylvania” and that this
opportunity permitted Mother to retain approximately three years of
seniority that she accrued in the federal employment system. Id. at 16.
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The court revisited the putative significance of Mother’s commitment to sell
the marital residence regardless of relocation and underscored the fact that
Maternal Grandmother purchased Mother a $435,000 home in Treasure
Island, with the promise that Mother would repay some of that debt with the
proceeds from the sale of the marital residence. The trial court surmised,
“Emotionally, Mother will enjoy independence and financial freedom resulting
from finding gainful employment and new housing.” Id. It concluded that
her access to family and the opportunity for a fresh start would benefit her
emotionally and financially.
The trial court’s characterization of the benefits that will inure to
Mother as a result of relocation distorts the evidence that Mother presented
during the July 1, 2015 hearing. As discussed below, 1) Mother failed to
pursue career opportunities in Pennsylvania that were commensurate to her
education and training; 2) while Mother claimed that she could not afford to
remain in the marital home, she acquired a residence in Florida for more
than three times the amount that she owed on the marital property; and 3)
the emotional support that Mother would ostensibly gain from Maternal
Grandmother’s presence is significantly diminished by the fact that Mother’s
new home is in excess of two hours away from Maternal Grandmother’s
residence.
First, we address Mother’s search for employment. Stated plainly,
Mother possessed a strong desire to return to Florida and prior to the third
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relocation hearing, she listed the marital home for sale because, having
accepted employment, she had no intention to continue living in
Pennsylvania. N.T., 7/1/15, at 54, 103. She explained, “I listed it for sale
because I need to sell it and have the proceeds financially. I’m not going to
live there anymore. I have taken a job and it’s not in the Pittsburgh area.”
Id. at 54. Mother’s evidence established that she has been looking
earnestly for employment in Florida since July 2012, approximately two
years before she issued notice of her intention to relocate. Mother initially
sought to relocate with L.D. to that state without any job prospects, and
while Mother included Pennsylvania and Washington, D.C. within the
parameters of her USAJOBS4 employment searches, she was committed to
finding employment in Florida, even if the career opportunity was outside of
her profession and paid substantially less than what she could earn in the
legal field. In fact, Mother acquired the clerical position that forms the basis
of the court’s revised “quality of life” rationale through USAJOBS, having
submitted her application for that position on January 15, 2015.
Mother defended the scope and nature of her pursuit of employment
by explaining that Pittsburgh does not offer many opportunities for federal
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4
USAJOBS is a website administered by the United States Office of
Personnel Management. It compiles the federal government's official list of
employment opportunities and permits users to apply to numerous positions
en masse and track the status of those applications.
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employment. However, in light of the deleterious effect that her
employment preferences had upon the father-son relationship, Mother’s
preoccupation with the benefits flowing from three years seniority in the
federal employment system is patently unwarranted. Exhibit K, which the
trial court cites for its proposition that Mother performed an exhaustive job
search in Pennsylvania, reveals that since 2012 Mother applied to
approximately eight hundred federal employment opportunities via the
USAJOBS website, predominately for positions located in Florida. Despite
Mother’s legal background, she submitted applications for an assortment of
careers ranging from a park guide in Ochopee, Florida (Big Cypress National
Reserve) to a cemetery representative in Arlington, Virginia (Arlington
National Cemetery). Her less eclectic submissions included, inter alia,
applications for various low-level clerical jobs and non-attorney legal
positions in Washington, D.C. and Pennsylvania, but again, principally in
Florida. Indeed, in complete contrast to the trial court’s perspective of
Mother’s diligence, Mother neglected to adduce any evidence of a focused
employment search beyond her obvious emphasis on seeking federal career
opportunities in Florida.
Additionally, although Mother referenced an additional one hundred
applications during her testimony, she did not present evidence of any job
searches beyond the USAJOBS printouts identified as Exhibit K. More
importantly, Mother did not testify that any of the other undocumented jobs
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were in Pittsburgh. In fact, the record reveals that Mother did not apply for
any private sector jobs in the Pittsburgh area. Thus, notwithstanding the
trial court’s reliance upon Exhibit K as evidence of Mother’s inability to
secure gainful employment in Pennsylvania, our review of the certified
record confirms that the vast majority of the job opportunities that Mother
pursued in the two years preceding her motion for relocation were located in
Florida. If anything, the evidence of record supports the contrary finding
that Mother neglected to make a sincere, unencumbered effort to find
employment in Pennsylvania or, as we discuss infra, maintain the marital
residence to avoid removing L.D. from his stable environment and steady
routine.
In addition to relying upon faulty evidence regarding Mother’s career
opportunities, the trial court misconstrued evidence concerning her financial
wherewithal. The court was persuaded by Mother’s apparent struggle to
maintain the marital residence in Imperial. The record belies the court’s
inference that Mother is in dire economic straits.
The record establishes that Father pays Mother $1,300 per month
alimony and an equal amount in child support. While the alimony is
scheduled to terminate during summer 2016, at the time of the third
relocation hearing, Mother anticipated receiving an additional $20,000
pursuant to the marital settlement. In addition to the cash receipts, Mother
has approximately $190,000 equity in the former marital home in Imperial,
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which she listed for $290,000. In addition, she owns a furnished one-
bedroom condominium in Tampa, Florida. That property will produce rental
income now that Mother purchased a new $435,000 home in Treasure
Island.
Notwithstanding these assets, Mother insinuated that her financial
situation was so untenable that she and L.D. were on the verge of forfeiting
the marital residence. In reality, however, and in contrast to the trial court’s
supposition regarding her economic distress, Mother adduced scant evidence
of economic hardship. In point of fact, the evidence that Mother introduced
during the relocation hearing established the inverse conclusion that her
finances were sufficiently stable to permit her to focus her employment
search upon random lower-level jobs in Florida rather than career
opportunities that were suited to her advanced education, experience, and
professional training. Additionally, Mother had sufficient means such that
she agreed to forego the $20,000 payment so long as Father used it to defer
the cost of traveling to Florida several times per year.
Moreover, while Mother has certainly benefited from Maternal
Grandmother’s largess, if Mother truly desired to attain financial
independence and stability for her and L.D., she would have placed greater
importance on the value of the potential career opportunities and less
emphasis on returning to Florida or utilizing the three years of seniority she
accrued in the federal employment system. There is no evidence that
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Mother requested that Grandmother redirect the financial resources that she
used to purchase the $435,000 home so that Mother could satisfy the
$100,000 balance on the marital residence or buy a less expensive home in
Pennsylvania. In actuality, Mother was determined to move to Florida and
she purposefully directed all of her available resources toward opportunities
in that state.
Finally, as it relates to the benefit of emotional support, the record
reveals that no such network exists for Mother and L.D. in Tampa. Maternal
Grandmother, whose presumed assistance was the initial impetus for
relocation to Florida, lives approximately two hours away from Mother.
Moreover, Maternal Grandmother is the primary caretaker for her disabled
brother with whom she lives. Hence, despite Mother’s initial justification for
relocation, Maternal Grandmother cannot provide childcare on a daily basis.
Likewise, Mother’s attempt to invoke L.D.’s paternal family was
unsubstantiated. The record confirms that Paternal Grandparents maintain a
seasonal home approximately one-hour away from Mother’s new residence,
but they spend the majority of the calendar year in Pennsylvania, about
twelve miles from the family home in Imperial. In sum, the only relatives
that live in the area are the paternal aunt, uncle, and cousins. While Mother
testified that she believed it was important for L.D. to fashion bonds with his
cousins, once again, scant evidence exists to sustain the conclusion that she
would rely upon Father’s brother as a support network if the need were to
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arise. Recall that Mother previously declined to rely upon Father or his
parents, who lived twelve miles from the marital home, to care for L.D.
when Mother traveled to Florida to begin employment. She did not inform
Father of her travels, and when Father requested additional custody in her
absence, she refused. Instead, she summoned Maternal Grandmother from
Florida to care for L.D. while she was away. Nothing in the record
substantiates the trial court’s finding that Mother would engage Father or
utilize his family as L.D.’s emotional support network now that she has even
greater control over the child approximately 1053 miles away from
Pennsylvania.
Notwithstanding the trial court’s misapprehension of the foregoing
facts, the record supports the contrary conclusion that, despite her indicated
dedication to L.D., Mother’s primary commitment has been to return to
Florida regardless of the trial court’s decision. In contrast to Mother’s
avowed concern for L.D., Mother’s actions confirm that her desire to return
to Florida, rather than realize L.D.’s best interest, is her paramount
consideration. Mother never indicated that she considered redoubling her
efforts to find employment in Pennsylvania, either to maintain stability for
her son or, if the the trial court denied the petition to relocate, to maintain
primary custody. Tellingly, she displayed little reluctance to leave L.D. in
Pennsylvania in order to relocate to Florida, and complained that, in denying
her initial petition, the court neglected to fashion a custody schedule in the
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event that she went to Florida without L.D. Rather than intensifying her
efforts in Pennsylvania after the trial court denied her motion to relocate,
Mother cultivated roots in Florida in derogation of the trial court order. She
accepted a job in Florida, purchased a new home, listed the marital
residence for sale, and then requested the court to reconsider its denial
based on the “new” evidence. Mother’s actions expose her insincerity.
Finally, we address the evidence that the trial court relied upon in
concluding that the seventh factor, regarding L.D.’s quality of life, militated
in favor of relocation. Initially, the court determined that, despite the
obvious advantage of outdoor activities available in Florida, Mother failed to
satisfy her burden of proving that relocation would benefit L.D. financially,
emotionally, or educationally. The court stressed that L.D. attended a
quality school district in Pennsylvania and benefited from the stability and
consistency that he achieved by continuing with Pittsburgh-area activities
and maintaining his then-current relationships. Hence, the trial court
previously found that this factor did not favor relocation.
Upon reconsideration, however, the trial determined that the factor
did, in fact, favor relocation. As we noted supra, in our discussion regarding
L.D.’s developmental needs, the court reasoned that, since Mother was
selling the marital residence, L.D. would face disruption and instability in his
education and activities even if it denied the petition to relocate. It further
found that the elementary school in which Mother proposed to enroll L.D.
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was superior to the elementary school he would attend in Burgettstown.
Borrowing from the preceding analysis, the court also determined that the
benefits of Mother’s employment and her purchase of a fashionable home
would inure to his advantage. However, for the reasons we previously
stated, the trial court abused its discretion in determining that these isolated
considerations warranted its decision to reverse its prior position and to
grant Mother’s petition to relocate.
In sum, the trial court not only discounted Father’s commitment to
move to the West Allegheny School District, but it also ignored both the ease
of maintaining friendships from Burgettstown and the fact that L.D.
participates in cultural, educational, and athletic activities in the Pittsburgh
area that are specific to neither Imperial nor the West Allegheny School
District. Thus, contrary to the trial court’s assessment, the record bears out
that remaining in the Pittsburgh region would limit the disruptions to L.D.’s
routines, friendships, and existing athletic and cultural activities. Hence, the
trial court erred in concluding that, regardless of location, the disruption of
L.D.’s stability and routine was a fait accompli.
For all of the foregoing reasons, the record will not sustain the trial
court’s consideration of the § 5337(h) relocation factors. Specifically, the
trial court erred in (1) finding that Mother would not further thwart Father’s
relationship with L.D. following relocation; (2) ignoring that Mother’s
principal motivation was to return to her native state of Florida and her
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concern for L.D.’s developmental condition was secondary; (3) accepting as
adequate, Mother’s chiefly symbolic search for employment opportunities in
Pennsylvania; and (4) concluding that Mother’s financial condition was so
strained that relocation to Florida was unavoidable. The foregoing errors
implicate five of the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5),
(6), and (7). Collectively, these errors warrant reversing the trial court’s
decision to grant Mother’s petition for relocation. As the trial court's
conclusions are unreasonable as shown by the evidence of record, we cannot
accept the court’s conclusion that relocation is in L.D.’s best interest.
Mindful that the trial court’s denial of Father’s request for primary
custody was premised upon L.D.’s relocation to Florida with Mother, we
reverse the July 31, 2015 order that granted Mother’s petition to relocate to
Florida and denied Father’s amended petition to modify custody and award
him primary physical custody. As our determination disturbs the overall
scheme of the trial court’s custody arrangement, we direct the court to
fashion an appropriate custody order that accounts for L.D.’s return to
Pennsylvania in Father’s primary custody. If Mother seeks to retain primary
custody of her son in Pennsylvania, she must file a petition for modification
pursuant to § 5338(a) and the trial court will render a custody determination
utilizing the § 5328(a) best-interest factors in light of the then-existing
circumstances.
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Order reversed. Matter remanded with directions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2016
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