J-A10042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.L.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.A.T.
Appellee No. 1866 WDA 2015
Appeal from the Order October 26, 2015
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2008-3924
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 13, 2016
Appellant, J.L.B. (“Father”), appeals from the order entered in the
Cambria County Court of Common Pleas, which granted primary physical
custody of R.E.B. (“Child”) to Appellee, S.A.T. (“Mother”), subject to
increased periods of partial custody for Father, and granted Mother’s petition
for relocation. We affirm.
This Court previously summarized the relevant facts and procedural
history of this case as follows:
Father and [Mother] are the parents of a daughter, R.E.B.
(“Child”), born [February 2008]. Father and Mother never
married. Father and Mother briefly resided together in
Johnstown after Child’s birth. Mother moved out in August
2008. Thereafter, Father filed a Complaint for Custody.
After hearings, the trial court granted the parties shared
legal custody, primary physical custody to Mother and
partial physical custody to Father. This Court affirmed the
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trial court’s Order. See J.L.B. v. S.A.T., 996 A.2d 532
(Pa. Super. 2010) (unpublished memorandum).1
1
Subsequently, the parties filed Petitions that are
not relevant to this appeal. However, we note that
Judge Joseph Leahey has recused himself from this
case. Further, Father asked President Judge Timothy
P. Creany to recuse based upon various accusations.
Father’s request was denied.
* * *
[Father filed a custody complaint on February 19, 2013.
On February 25, 2013, Mother filed a Notice of Proposed
Relocation.] Domestic Relations Hearing Officer David
Beyer, Esq., [“Mr. Beyer”] was assigned to conduct
hearings and prepare a report with recommendations
relative to [Mother’s] relocation request to move from
Cambria County to Blair County to reside with her fiancé
and [Child].
Mr. Beyer conducted two days of hearings on May 3, 2013,
and July 25, 2013. … [On August 1, 2013, the trial court
entered an Interim Order allowing Mother to relocate
based upon Mr. Beyer’s interim recommendation.]
[On October 2, 2013, Father filed a Praecipe to Cancel the
Hearing that was scheduled for October 4, 2013, and
schedule the matter for pre-trial conference before a trial
judge.] Following the final hearing on October 4, 2013,
Mr. Beyer filed the “Report of Hearing Officer” on October
21, 2013, encompassing the custody and relocation issues,
recommending that the [trial c]ourt affirm [Mother’s]
relocation request as a final order, and recommending,
inter alia, shared legal custody, primary physical custody
of [Child] with [] [M]other, and partial [physical] custody
of [Child] with [] [F]ather. The parties were advised that
exceptions must be filed within twenty (20) days. Neither
party filed exceptions within 20 days.
On November 12, 2013, twenty-two (22) days after [Mr.
Beyer] filed his Report, [Father], pro se, filed a document
entitled “Letter re: No Exceptions to the Hearing Officer’s
Recommendations.”
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[Father], pro se, then filed a “Petition for Emergency
Special Relief” on January 2, 2014. The document,
paragraphs 3-9, berates witnesses to the domestic
proceedings and members of the Cambria County Judiciary
and Bar. Paragraphs 10 through 17 challenge [Mr.]
Beyer’s procedures and scheduling relative to the
custody/relocation hearings. Paragraphs 18 through 25
berate the [trial c]ourt.
On January 7, 2014, the [trial c]ourt issued an Order
treating [Father’s] “Petition for Emergency Special Relief”
as a petition for review of [Mr. Beyer’s] Report. [A
h]earing was scheduled for January 29, 2014, but
continued until March 12, 2014, upon request of [Father’s
counsel.]
On January 28, 2014, [Father] filed a “Praecipe for Entry of
an Adverse Order.” [Father] cites Pa.R.A.P. 301(e)
(Emergency Appeals) as authority for the filing.
* * *
[Father] filed [a] Notice of Appeal…on February 27, 2014,
and the case was docketed as a Children’s Fast Track
appeal on March 10, 2014. At the time the appeal was
filed, [Mr. Beyer’s] Report and Recommendations had not
yet been signed [or] adopted by the [trial c]ourt, and
designated as a Final Order.
At the hearing on March 12, 2014, the [trial c]ourt, on the
record, indicated that it intended to affirm [Mr. Beyer’s]
Report and Recommendation. No written Order issued[]
because…due to the filing of [the] instant Fast Track
Superior Court appeal, [the trial court] lacked jurisdiction
to affirm the Report and Recommendations. [The trial
court also allowed Father’s counsel to withdraw as counsel
on March 12, 2014.]
J.L.B. v. S.A.T., No. 395 WDA 2014, unpublished memorandum at 1-3
(Pa.Super. filed October 10, 2014) (alterations in original). On October 10,
2014, this Court remanded the case because the trial court had acted
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contrary to the applicable rules and statutes when the court (1) permitted a
hearing officer, rather than a trial court judge, to hold hearings on Mother’s
petition for relocation; and (2) failed to issue a prompt decision. This
Court’s remand instructions directed the trial court to hold a trial on Mother’s
petition for relocation and to determine whether the case should be heard by
an out-of-county judge due to the procedural irregularities and Father’s
distrust of the Cambria County Court of Common Pleas judges.
Following remand, a Potter County jurist, Judge John B. Leete, was
temporarily assigned on December 4, 2014 to hear the case. Father
proceeded pro se. In August 2015, Father submitted multiple filings in
which he demanded the recusal of Judge Leete and disqualification of
Mother’s counsel, Attorney Zanoni. Father also requested counsel fees
based on the alleged misconduct of the court and Attorney Zanoni. On
August 24, 2015, Mother filed an “emergency petition for special relief,”
alleging Father had refused to return custody of Child to Mother. The court
issued an ex parte order directing Father to return physical custody of Child
to Mother immediately to attend school in the Bellwood School District until
further order of court. The trial court subsequently held custody/relocation
hearings on August 31, 2015; September 1, 2015; and September 29, 2015.
The court denied Father’s request for recusal/disqualification on September
1, 2015. The court granted Mother’s petition for relocation on October 26,
2015. The court’s order also provided that Mother would retain primary
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physical custody of Child but increased Father’s periods of partial physical
custody.1 On November 23, 2015, Father filed a timely pro se notice of
appeal and concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(i). Mother filed a motion with this Court to dismiss or
quash the appeal on March 10, 2016, alleging Father failed to provide
Mother with a designation of the contents of his reproduced record as
required by Pa.R.A.P. 2154.2 On April 1, 2016, Father filed a motion with
this Court to “recuse” Judge Leete and to vacate all orders entered by Judge
Leete.
Father raises the following issues on appeal, which we have reordered
for ease of disposition:
DID THE TRIAL COURT DENY [FATHER] AND CHILD THEIR
RIGHT TO DUE PROCESS?
DID THE TRIAL COURT FAIL TO ADHERE TO THE ORDER
OF THE SUPERIOR COURT (MEMORANDUM 395 WDA
201[4]) AND THE APPLICABLE RULES AND STATUTES
REGARDING CUSTODY AND RELOCATION?
____________________________________________
1
The order provided, inter alia, that Father would have physical custody of
Child three weekends per month in alternate months beginning in November
2015, and two weekends per month in all other months.
2
Father’s minor violation of the Rules of Appellate Procedure does not
impede our review of this case. Therefore, we deny Mother’s motion to
dismiss/quash. See Morgan Guar. Trust Co. of New York v. Mowl, 705
A.2d 923 (Pa.Super. 1998), appeal denied, 556 Pa. 693, 727 A.2d 1121
(1998) (denying motion to dismiss based on appellant’s failure to designate
contents of reproduced record as minor infraction that did not hinder
meaningful appellate review).
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IS THE TRIAL COURT MANDATED TO RECUSE?
DID THE TRIAL [COURT] ERR BY FAILING TO DISQUALIFY
OPPOSING COUNSEL?
DID THE TRIAL COURT ERR BY FAILING TO AWARD
[FATHER] LEGAL FEES?
DID THE TRIAL COURT ERR BY FAILING TO GRANT
FATHER PRIMARY CUSTODY AS IT IS IN THE BEST
INTEREST OF THE CHILD AS SUPPORTED BY THE
EVIDENCE?
DID THE TRIAL COURT ERR IN GRANTING MOTHER
PERMISSION TO RELOCATE BECAUSE IT WAS NOT IN THE
BEST INTEREST OF THE CHILD?
(Father’s Brief at 7-8).
In his first five issues combined, Father argues that following remand,
the trial court denied his right to due process by failing to schedule trial and
issue a prompt decision within the time limits set forth in the applicable rules
and statutes. Father contends the delays prejudiced him and were not in
the best interests of Child. Father asserts Judge Leete and Attorney Zanoni
should be held in contempt. Father maintains Judge Leete is obligated to
recuse himself because of his willful failure to decide the matter promptly
and his grant of Mother’s “emergency” petitions prior to conducting any
hearings. Father claims Attorney Zanoni should be disqualified because he
violated the Rules of Professional Conduct when he defended the alleged
misconduct of the trial court and “belittled” Father for attempting to protect
his and Child’s rights. Father concludes this Court should mandate the
recusal of Judge Leete, disqualify Attorney Zanoni, award Father legal costs
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and fees, vacate the trial court’s orders, and decide the underlying
custody/relocation issues in the first instance. We disagree.
“[A] party to an action has the right to request the recusal of a jurist
where that party has a reason to question the impartiality of the court.”
Goodheart v. Casey, 523 Pa. 188, 198, 565 A.2d 757, 762 (1989).
“Recusal is required wherever there is substantial doubt as to the jurist’s
ability to preside impartially.” In Interest of McFall, 533 Pa. 24, 35, 617
A.2d 707, 713 (1992). “[A] judge’s behavior is not required to rise to a level
of actual prejudice, but the appearance of impropriety is sufficient.” Id. at
34, 617 A.2d at 712.
It is presumed that the judge has the ability to determine
whether he will be able to rule impartially and without
prejudice, and his assessment is personal, unreviewable,
and final. Where a jurist rules that he…can hear and
dispose of a case fairly and without prejudice, that decision
will not be overturned on appeal but for an abuse of
discretion. The party requesting recusal bears the burden
of producing evidence that establishes bias, prejudice, or
unfairness. This evidence must raise a substantial doubt
as to the jurist’s ability to preside impartially.
In re Bridgeport Fire Litigation, 5 A.3d 1250, 1254 (Pa.Super. 2010)
(internal citations omitted).
The award of counsel fees and costs in custody matters is governed by
statute: “Under this chapter, a court may award reasonable interim or final
counsel fees, costs and expenses to a party if the court finds that the
conduct of another party was obdurate, vexatious, repetitive or in bad faith.”
23 Pa.C.S.A. § 5339. “Our standard of review of an award of counsel fees is
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well settled: we will not disturb a trial court's determination absent an abuse
of discretion.” A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa.Super. 2015).
Pennsylvania Rule of Criminal Procedure 1915.4 provides as follows:
Rule 1915.4. Prompt Disposition of Custody Cases
(a) Initial Contact With the Court. Depending upon
the procedure in the judicial district, the parties’ initial in-
person contact with the court (including, but not limited to
a conference with a conference officer pursuant to Rule
1915.4-2, a conference with a judge, conciliation,
mediation and/or class/seminar) shall be scheduled to
occur not later than 45 days from the filing of a complaint
or petition.
(b) Listing Trials Before the Court. Depending upon
the procedure in the judicial district, within 180 days of the
filing of the complaint either the court shall automatically
enter an order scheduling a trial before a judge or a party
shall file a praecipe, motion or request for trial, except as
otherwise provided in this subdivision. If it is not the
practice of the court to automatically schedule trials and
neither party files a praecipe, motion or request for trial
within 180 days of filing of the pleading, the court shall,
sua sponte or on motion of a party, dismiss the matter
unless a party has been granted an extension for good
cause shown, or the court finds that dismissal is not in
the best interests of the child. The extension shall not
exceed 60 days beyond the 180 day limit. A further
reasonable extension may be granted by the court upon
agreement of the parties or when the court finds, on the
record, compelling circumstances for a further reasonable
extension. If an extension is granted and, thereafter,
neither party files a praecipe, motion or request for trial
within the time period allowed by the extension, the court
shall, sua sponte or on the motion of a party, dismiss the
matter unless the court finds that dismissal is not in the
best interests of the child. A motion to dismiss, pursuant to
this rule, shall be filed and served upon the opposing
party. The opposing party shall have 20 days from the
date of service to file an objection. If no objection is filed,
the court shall dismiss the case. Prior to a sua sponte
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dismissal, the court shall notify the parties of an intent to
dismiss the case unless an objection is filed within 20 days
of the date of the notice.
(c) Trial. Trials before a judge shall commence within
90 days of the date the scheduling order is entered. Trials
and hearings shall be scheduled to be heard on
consecutive days whenever possible but, if not on
consecutive days, then the trial or hearing shall be
concluded not later than 45 days from commencement.
(d) Prompt Decisions. The judge’s decision shall be
entered and filed within 15 days of the date upon which
the trial is concluded unless, within that time, the court
extends the date for such decision by order entered of
record showing good cause for the extension. In no event
shall an extension delay the entry of the court’s decision
more than 45 days after the conclusion of trial.
(e) Emergency or Special Relief. Nothing in this rule
shall preclude a party from seeking, nor a court from
ordering, emergency or interim special relief at any time
after the commencement of the action.
Pa.R.C.P. 1915.4 (emphasis added). See also Pa.R.C.P. 1915.17(d)
(stating: “The procedure in any relocation case shall be expedited. There
shall be no requirement for parenting education or mediation prior to an
expedited hearing before a judge”).
Instantly, this Court previously remanded this case because of
procedural irregularities, including the improper appointment of a hearing
officer and the trial court’s failure to issue a prompt decision under the
applicable rules and statutes. This Court filed its prior decision on October
10, 2014. An out-of-county jurist was assigned to the case on December 4,
2014. The first custody/relocation hearing was held on August 31, 2015. At
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that hearing, the court also heard argument on Father’s motion for
recusal/disqualification, which was largely based on the delay in proceeding
to trial after remand. The court made the following statement on the
record:
The [c]ourt was assigned to this matter in December as I
recall. However, due to request for re-argument and so
on, the file actually wasn’t returned to this county until
February 19.
In March I was in an accident just outside my home. At
the time it seemed that it was a quick fix. To be more
specific, just so the record is full and complete, it was a
shoulder dislocation after a fall on the ice. The shoulder
was replaced properly. Started physical therapy and it
seemed that hopefully within a few weeks things would be
fine.
Unfortunately, that did not occur and things went downhill
and culminated in a major surgery which occurred on July
1 of this year. As to the suggestion of [Father], which I
think is a valid suggestion in many regards, as the thing
dragged on, yes, I, and with the value of hindsight, having
no idea that I would be delayed so long or would have
such major surgery as I did, certainly the prudent thing for
me to have done would have been to notify the AOPC. It
just sort of was sequential and I regret that decision.
That being said, however, the whole focus of [Father’s]
testimony or statement, there hasn’t been testimony, has
been delay. I can’t make that go away. I regret that this
accident caused an inconvenience locally and as I said with
the benefit of hindsight and how things developed, yes, I
wish it would have been sooner. I have to accept any
responsibility for that.
I can assure the parties it wasn’t intentional. I wound up a
medical mess that was not anticipated and which the
orthopedic surgeon [whom] I was dealing with and the
physical therapy people I was dealing with thought would
resolve itself much differently than it did; however, it
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didn’t.
That being said, I am here. I am prepared to proceed
today and tomorrow on the request for primary custody,
on the relocation issue which has been, [Father] is correct,
long delayed. I can’t fix anything that occurred in this
court prior to my appointment. I accept responsibility for
what has occurred since my appointment. And I am ready
to proceed.
As far as the suggestion that the [c]ourt could have or
should have or must report Attorney Zanoni for
misconduct, I do not accept that at all. I think that’s a
complete fallacy at least in terms of my involvement with
this case. We’ll see where we go from here. I am aware
that [Father] has sought continuance even though that
would appear to be adding to the prejudice he claims he
has already suffered and I’m having trouble understanding
that.
Since I have no knowledge of the parties in this case, the
attorneys in this case or anything else, the only attorney
that the [c]ourt has ever had any contact with who is, to
my recollection, is Attorney McGill who I handled the
matter some years ago in which he was a counsel and I
did designate him as the guardian ad litem in [a] separate
and somewhat unrelated case. Other than that I have had
no involvement with anyone.
The delay is unfortunate. Whatever responsibility has to
be accepted for that delay to the extent I’ve caused it, I
must unfortunately accept that responsibility. However, it
does not in any manner require that recusal,
disqualification that the [c]ourt can see.
(N.T. Hearing, 8/31/15, at 59-61; R.R. at 161a-163a). We accept the
court’s reasoning. The delay in scheduling a hearing following remand was
attributable to truly unforeseen and unfortunate circumstances, i.e., the trial
judge’s injury and need for medical treatment. Nothing in the record
suggests Judge Leete lacked the ability to preside over this matter
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impartially. The court was ready to conduct the custody/relocation hearing
shortly after Father moved for recusal. Recusal would have lengthened the
delay and amplified the prejudice Father claims he incurred. Father failed to
produce evidence that any prejudice he suffered was the result of Judge
Leete’s bias or unfairness as opposed to an unanticipated injury. 3 Further,
Father’s argument regarding Attorney Zanoni is largely derivative of Father’s
misplaced allegations of misconduct against the trial court. The record lacks
support for Father’s assertion that the court was obligated to disqualify
Attorney Zanoni from the case. Therefore, the court properly denied
Father’s recusal/disqualification request.4 See In re Bridgeport Fire
____________________________________________
3
Moreover, contrary to Father’s argument, subsections (a) and (b) of Rule
1915.4 are inapplicable at this stage in the proceedings. Those subsections
establish deadlines for pre-trial conferences and trial scheduling relative to
the date the complaint was filed. When this Court remanded the case for
trial, those deadlines had already long since passed. This Court instead
directed the trial court to conduct a custody/relocation trial and issue a
prompt decision. The subsequent delay did not implicate Rule 1915.4.
Moreover, even if we were to treat the date of this Court’s prior decision as
the date the “complaint” was filed for purposes of Rule 1915.4, the amended
version of the rule in effect at that time gives the court discretion to find that
dismissal for violation of Rule 1915.4(b) would not be “in the best interests
of the child.” See Pa.R.C.P. 1915.4(b). Here, the court reasonably
determined that any further delays would not have been in Child’s best
interests. To the extent the delay in scheduling trial was contrary to this
Court’s instruction to issue a prompt disposition, that delay was inadvertent
and does not justify recusal of the trial judge or dismissal of Mother’s
petition for relocation.
4
The court’s order did not specifically rule on Father’s request for counsel
fees and costs. Nevertheless, the court made clear that no evidence
indicated Attorney Zanoni had engaged in obdurate or vexatious conduct.
(Footnote Continued Next Page)
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Litigation, supra.
In reviewing a child custody order:
[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.
S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation
omitted). With respect to a custody order, Section 5328(a) provides:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court
shall determine the best interest of the child by
considering all relevant factors, giving weighted
consideration to those factors which affect the safety of the
child, including the following:
(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is a
_______________________
(Footnote Continued)
Thus, Father is not entitled to counsel fees, costs, or expenses. See 23
Pa.C.S.A. § 5339. Additionally, based on our analysis, we deny Father’s
open recusal motion.
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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 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.
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(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(a). In expressing the reasons for its decision, “there is
no required amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that the custody
decision is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331,
336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013).
The new Act defines “relocation” as “[a] change in residence of the
child which significantly impairs the ability of a non-relocating party to
exercise custodial rights.” 23 Pa.C.S.A. § 5322(a); C.M.K. v. K.E.M., 45
A.3d 417, 422-25 (Pa.Super. 2012). Section 5337 governs relocation
matters and provides in relevant part as follows:
§ 5337. 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 with the nonrelocating
party, siblings and other significant persons in the
child’s life.
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(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.A. § 5337(h). Moreover,
[T]he party proposing relocation…bears the burden of
proving relocation will serve the children’s best interests.
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See 23 Pa.C.S.A. § 5337(i). Each party, however, has the
burden of establishing “the integrity of that party’s motives
in either seeking the relocation or seeking to prevent the
relocation.” 23 Pa.C.S.A. 5337(i)(2).
S.J.S., supra at 551.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable John B.
Leete, we conclude Father’s remaining issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of those questions.
(See Findings of Fact and Conclusions of Law, filed October 26, 2015, at 8-
14) (examining each relevant factor under applicable statutes; concluding
custody and relocation decisions are in Child’s best interest). The record
supports the court’s decision. Therefore, we affirm Father’s issues five and
six on the basis of the trial court opinion. Based on the foregoing, Father is
not entitled to relief on any of his issues on appeal. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/16
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INTRODUCTION, FINDINGS OF FACT, CONCLUSIONS OF LAW, DISCUSSION
AND ORDER ON MOTHER'S PETITION FOR RELOCATION
AND FATHER'S PETITION FOR PRIMARY CUSTODY
I. INTRODUCTION
Before the court are two inter-related custody matters. The court must rule on mother's
proposed relocation from Bedford County to Cambria County, which has de facto occurred over
father's objection. Father has also filed primary physical custody of d..t.Y. The matters were
combined for purposes of hearing following a reversal and remand on the relocation issue from
the Superior Court.
II. FINDINGS OF FACT
1. This matter relates to custodial concerns concerning the partys' minor daughter
; R, ~. b. born February 2008.
-~. . ..
-J:"L. ~"
_
2. is a medical doctor and the birth father of Child. He lives in
Johnstown, Pennsylvania, Cambria County.
3. now· S, ft, : is the birth mother, and currently resides in the
vicinity of Tyrone, Blair County, Pennsylvania.
4. Mother is currently married to; J: Gt- and has a child with\ :r.6{. .In
addition :J. Ef. has three children including a son 18, who is a high school senior and
resides full time with the~- His other two children are subject to week on /week off
custody arrangement amicably worked out with the former; mt~. ~ .
1
5. Mome< ~ .::r.G .. married on August' 2013, and~~\« was born on August:' . 2014.
f"'
6. ,ro..~~V'" has three other children as well. and is invnlVE~n with custodv litigation with
some of those children
Those children are with l F'a.~"'eV" t on a parnai custody
basis, including alternate weekends among other times. The oldest of those children. , is a
college student. I\,
old.
~ow is currently 15, while o: dtuA.~eN" is 12 years
7. The parties were never married, but did cohabit until the time that Child was about six
months old. They resided in the Doctor's home in Westmont, although mother was then
employed in Bedford County. After the separation of the parties, mother resided on Clarion
A venue in Bedford, Pennsylvania for approximately five years where she was employed in a
nursing home facility. She had maintained employment there for approximately ten years until
2011.
8. Y o: ~V\tr has been employed primarily as an emergency room physician, with
irregular working hours at times. He is currently seeking employment as medical director of a
state correctional facility after being discharged from Med Express.
9. After leaving her job in the Bedford area, mother worked for Southern Tier Hospice in
Altoona. She left that employment after a company reorganization, and went to work for UPMC
Altoona which is close to her home.
10. Father lives in a comfortable home in the Westmont section, while mother lives on a five
acre property in a spacious home owned by: .J. G.
has been unemployed since March 2015, but is currently seeking
employment as noted herein.
12. Prior to moving to the Tyrone area, mother filed a timely notice of relocation, and father
filed a timely objection.
13. The parties shared legal custody with mother having primary physical custody, pursuant
to an order of the trial court dated July 15, 2009, and later affirmed by the Superior Court at
docket 1368 W. D. A. 2009 (Pa. Super. Crt. 2010).
14. Further custody hearings were held, with the final hearing on August 12, 2011, which
reduced father's periods of partial custody. Father appealed again and the matter was affirmed
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1' '
by the Superior Court on April 3, 2012, at 940 WDA 2011, as father's notice of appeal. was
untimely.
15. The parties, primarily : ~6'..~V t, initiated custody litigation shortly after ~l& was
born in 2008, and that litigation has continued to date.
16. After the notice of relocation was filed, various hearings were conducted by the hearing
officer who then made a report to the court which issued an order. The father appealed this _
matter to the Superior Court on a pro-se basis, and on October 10, 2014, Superior Court reversed
and remanded the proceeding largely on the basis procedural irregularities concerning the use of
a master. 395 WDA 2014, (Superior Court October 10, 2014}.
17. After efforts were made for reargument in the Superior Court, that was denied and the
record was returned back to Cambria County on February 19, 2015. Shortly thereafter, the
undersigned senior judge suffered an injury which did not respond to treatment and resulted in
delay of the matter on remand. This Court accepts full responsibilityfor any such delays.
18. Full hearings were held on both the relocation and father's pending petition or primary
physical custody on August 31, 2015, September 1, 2015, and September29, 2015:
19. The parties have a strained relationship at best, and do not trust each other.
20. While the parties on occasion have been able to be flexible with each other, this has been
done on a reluctant and occasional basis.
21. The parties communicate primarily by text message.
23. On March 12, 2014, the trial court indicated that it would affirm the Master's report, but
did not issue an order. Father's most recent counsel withdrew later.
24. In response to Judge Creany's interim order of August 5, 2013, mother proceeded with
marriage to .::r, Gt . · ~ and relocated to the Tyrone area. She enrolled the child in the
~3. School system for kindergarten. The child has continuedwithin that school and is now
in secono grade, all over father's objections.
25. Mother gives her reasons for relocation as related to her marriage, being close to her
work, and being able to spend more time with her child. Her assertion that the Bellwood School
system is in some manner superior to the Bedford School is based solely on internet research.
The Court does not accept that proposition in view of the lack of supporting evidence.
3
26. (:WA loves her home and the farm animals there, as well as her step-brothers and appears
to have a good relationship with her step-father.
27. Q\.Ud has a close and loving relationship with both her mother and her father.
29. With the information provided it aopears that1