J-S54029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.H. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
L.H.
Appellant No. 244 WDA 2016
Appeal from the Order January 19, 2016
In the Court of Common Pleas of Fayette County
Civil Division at No(s): No. 2361 of 2014, G.D.
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 26, 2016
L.H. (“Mother”) appeals from the January 19, 2016 custody order that
denied her petition for relocation and custody modification with respect to
her son, G.H., born in March of 2002, and her daughter, C.H., born in
October of 2004. We vacate and remand in accordance with the following
memorandum.1
____________________________________________
1
On June 7, 2016, Mother filed an application for relief--motion to strike,
wherein she requests that this Court issue an order striking the appellee
brief of J.H. (“Father”) for being untimely filed. Mother asserts that Father’s
counsel indicated in the certificate of service attached to the brief that it was
served via first class mail on the due date established by this Court’s briefing
schedule, i.e., April 26, 2016. However, Mother asserts that Father’s
counsel filed the appellee brief on May 2, 2016, and that she received it on
May 4, 2016. We discern no prejudice to Mother by Father’s untimely filing
of his appellee brief. Therefore, we deny Mother’s application for relief.
J-S54029-16
Mother and Father, the natural parents of G.H. and C.H., were married
in 2002. N.T., 9/18/15, at 97. In February of 2014, the family moved from
New Hampshire to Uniontown, Fayette County, Pennsylvania, where they
resided with Father’s parents in their home.2 Id. at 99, 165. The parties
enrolled G.H. and C.H. in the Laurel Highlands School District. Id. at 101.
In November of 2014, Mother and Father separated. On December 19,
2014, following a complaint for custody filed by Father, the trial court issued
an agreed-upon order, granting Mother and Father shared legal and equally
shared physical custody on an alternating weekly basis.
On June 20, 2015, Mother married J.D.D. (“Stepfather”) and moved to
Sharpsburg, in Allegheny County. Id. at 96, 131-132. The parties modified
the custody order at that time, without court intervention, with Father
exercising primary physical custody, and Mother exercising partial physical
custody every weekend.
On August 3, 2015, Mother filed a “petition for relocation and custody
modification.” In the petition, Mother asserted that she currently lives in the
Fox Chapel School District in Sharpsburg, which is located “a short distance
outside of the City of Pittsburgh” and approximately 70 minutes from
Father’s residence in Uniontown, in Fayette County. Petition, 8/3/15, at ¶¶
____________________________________________
2
In the fall of 2002, the parties, along with G.H., who was less than a year
old, moved from Pennsylvania to Maine and then to New Hampshire. They
did not return to Pennsylvania until 2014. N.T., 9/18/15, at 75-77.
-2-
J-S54029-16
1, 19. In addition, Mother asserted that Father has a history of “psychotic
episodes”, one of which resulted in the court granting a Protection from
Abuse (“PFA”) order on her behalf and in criminal charges currently pending
against him. Id. at ¶¶ 12-14. Finally, Mother asserted that Father has
attempted to interfere with her custodial time. Mother requested primary
physical custody.
On August 17, 2015, Father filed a counter-affidavit wherein he
objected to both relocation and modification of the custody order. A hearing
occurred on September 18, 2015. Mother testified that she requested
primary physical custody so that G.H. and C.H. can attend the Fox Chapel
School District, which she described as “a really top-rated school.” N.T.,
9/18/15, at 102. She acknowledged that C.H. has done well academically in
the Laurel Highlands School District. Id. at 103. Mother testified that G.H.
used to do very well academically, and he had been in honors classes in the
Laurel Highlands School District. Id. at 104. She implied that his academic
achievements have decreased since living in Pennsylvania. Id.
G.H., then age thirteen and in eighth grade, testified in camera that he
used to be an honors student, but not at present. Id. at 20. He testified as
follows on inquiry by the trial court:
THE COURT: [I]t seems like you been kind of stuck in the middle
here with your parents, and that’s a bad place to be. What
concerns me is that you were an honors student and now you
seem like you’re a very sensitive young man and sometimes
your grades fail when you have so much going on emotionally in
your life. . . .
-3-
J-S54029-16
...
THE WITNESS: I get anxious a lot at my mom’s house. I get,
like, hyper anxious, like, I can’t think well, and it’s mainly
because, it’s like, why am I here? I don’t understand any of
this. That’s my main issue with focusing mostly.
THE COURT: And you feel that that is carrying over into your
school [work]?
THE WITNESS: Yeah.
Id. at 27-28.
G.H. resided in his paternal grandparents’ home, along with Father and
C.H. He explained that he wants to continue residing with Father, and that
he is not “a fan of [Stepfather] and his kids.”3,4 Id. at 12. He expressed the
desire for Father to have sole physical custody because, in part, “my mom
usually never has plans that consider me on the weekends.” Id. at 14. G.H.
explained that Mother did not tell him and his sister that she was getting
married, and that she did so “without even considering us, I mean, it kind of
hurts.” Id. at 15.
____________________________________________
3
Father testified that the weekend following the custody hearing he will be
moving to a new home within a mile of the paternal grandparents’ home and
also within the Laurel Highlands School District. N.T., 9/18/15, at 58-59.
4
Stepfather testified that he has one son, age seven, and two daughters,
ages nine and twelve. N.T., 9/18/15, at 43. He has partial physical custody
of his children on alternating weekends and on alternating Wednesday
evenings for dinner. Id.
-4-
J-S54029-16
C.H., then nearly eleven years old and in sixth grade, also testified in
camera that she does not “really enjoy going [to Mother’s house]. It’s not
very comfortable. I’m not used to the kids and I don’t like it there.” Id. at
35. C.H. explained, “I haven’t known those people for very long at all and I
don’t have my own room, I share one with my brother and, like, I just don’t
feel comfortable.”5 Id. She explained that she would also like to reside with
Father because “I love my school and my father always has time to -- he
goes to work, but when he gets home I enjoy being with him, he’s fun, and I
don’t feel comfortable in Pittsburgh.” Id. at 38.
On January 19, 2016, the trial court issued the following order: “the
Petition to Relocate is DENIED. As the parties have modified by themselves
the present Custody Order due to the distance now between the parties, the
Court will upon presentation, sign a new Order reflecting the current custody
agreement.” Order, 1/19/16 (emphasis in original).
On February 16, 2016, Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On that same date, Mother filed a motion for
reconsideration. By opinion and order dated February 23, 2016, the trial
court, after full consideration of Mother’s claims, denied the motion.
____________________________________________
5
G.H. and C.H. testified that their bedroom is in the basement at Mother’s
house. N.T., 9/18/15, at 9, 35. Mother testified that she and Stepfather are
considering moving to a larger house that would also be within the Fox
Chapel School District. Id. at 110.
-5-
J-S54029-16
On appeal, Mother presents the following issues for our review:
I. Whether the [t]rial [c]ourt abused its discretion in failing to
adequately address all custody factors pursuant to 23 Pa.C.S. §
5328(a)[?]
II. Whether the [t]rial [c]ourt abused its discretion in failing to
adequately address all custody factors pursuant to 23 Pa.C.S. §
5337(h)[?]
III. Whether the [t]rial [c]ourt abused its discretion in failing to
dispose of Mother’s claim for custody modification[?]
IV. Whether the [t]rial [c]ourt erred in its factual findings not
supported by the record[?]
Mother’s brief at 4.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We 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, we must defer to
the presiding trial judge who viewed and assessed 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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
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 that 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) (citation omitted).
-6-
J-S54029-16
Instantly, we begin with Mother’s first and third issues on appeal,
which are related. She argues that the trial court committed an error of law
in failing to address the 23 Pa.C.S.A. § 5328(a) factors and her request to
modify the existing custody order by granting her primary physical custody.
This Court has explained as follows.
When deciding a petition to modify custody, a court must
conduct a thorough analysis of the best interests of the child
based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
A.3d 73, 80 (Pa. Super. 2011). “All of the factors listed in
section 5328(a) are required to be considered by the trial court
when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
652 (Pa. Super. 2011) (emphasis in original). Section 5337(h)
requires courts to consider all relocation factors. E.D., supra at
81. The record must be clear on appeal that the trial court
considered all the factors. Id.
Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, Pa. , 70 A.3d 808 (2013). Section 5323(d)
applies to cases involving custody and relocation. A.M.S. v.
M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).
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, Pa. , 68 A.3d 909 (2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.
A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
The relevant statutory provisions are as follows.
-7-
J-S54029-16
§ 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
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)(1)
and (2) (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.
-8-
J-S54029-16
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
§ 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.
(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.
-9-
J-S54029-16
(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).
In its opinion accompanying the subject order, the trial court expressly
considered all of the Section 5337(h) relocation factors, but none of the
Section 5328(a) custody factors. The court explained in its opinion
addressing Mother’s petition for reconsideration that, “since this was a
relocation request interpreted to refer to a modification of custody in the
event relocation was granted,” it properly did not consider the Section
- 10 -
J-S54029-16
5328(a) factors. Trial Court Opinion, 2/23/16, at 3. We are constrained to
disagree.
In D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014), the trial court
issued a custody order granting the mother primary physical custody of the
parties’ children after considering all of the Section 5328(a) custody factors
and all of the Section 5337(h) relocation factors. The parties had relocated
their residences following their separation and divorce. The mother initiated
the custody action, at which time she resided in North Carolina, and the
father in Pittsburgh, Pennsylvania. On appeal, the father argued that the
court erred by failing to dismiss the mother’s custody complaint because she
did not comply with the relocation procedure in Section 5337(c) by providing
him with timely notice of her intention to relocate the children. We rejected
the father’s argument.
We explained in D.K. that, “section 5337 is designed to give notice to
a party with custody rights that the other custodial party intends to change
his or her geographical location and a modification of a custody arrangement
will be necessary to allow the relocating party to continue to exercise
custody rights.” Id. at 473. We held as follows.
[I]n a case such as this, which involves a custody determination
where neither [parent] is relocating and only the children stand
to move to a significantly distant location, the relocation
provisions of the Child Custody Act, 23 Pa.C.S.A. § 5337, are not
per se triggered and the notice requirement of section 5337(c)
does not apply. However, in such cases, the trial court shall
consider the relevant factors set forth in section 5337(h) insofar
- 11 -
J-S54029-16
as they impact the final determination of the best interests of
the children.
Id. at 468.
In this case, despite Mother pleading relocation, we conclude that her
request before the court did not “per se trigger” the Section 5337 provisions.
When Mother filed the subject petition on August 3, 2015, she was already
living in Sharpsburg. Further, she and Father had modified the existing
custody order due to her relocation whereby Father exercised primary
physical custody, and she exercised partial physical custody every weekend.
As such, Mother’s request was for primary physical custody of G.H. and C.H.,
which would necessitate their change in school districts, and her request
involved only the relocation of the children. Therefore, we conclude that the
trial court erred as a matter of law by failing to consider the Section 5328(a)
custody factors and thereby failing to decide Mother’s custody modification
request. See D.K. v. S.P.K., supra; see also A.V. v. S.T., 87 A.3d at 822.
We observe that Mother’s request for modification of the custody order
involved the change of residence of G.H. and C.H. to a distant location,
which would impact their physical, educational, and/or emotional
development, who were then thirteen and nearly eleven years old, and who
implied in their testimony having difficulty adjusting to Mother’s new
marriage and family dynamic. Therefore, we recognize, pursuant to D.K.,
supra, that the trial court was required to “consider the relevant factors of
section 5337(h) in [its] section 5328(a) best interest analysis.” D.K. v.
- 12 -
J-S54029-16
S.P.K., 102 A.3d at 477-478. As we explained in D.K., “several of the
relevant factors of section 5337(h) are encompassed, directly or implicitly,
by the custody factors listed in section 5328(a). Any relevant section
5337(h) factor that is not expressly encompassed in section 5328(a) should
be considered by the trial court under the catchall provision of section
5328(a)(16).” Id. at 478. We hold in this case only that the trial court
erred by considering the Section 5337(h) factors to the exclusion of all of the
Section 5328(a) factors.
Accordingly, we vacate the January 19, 2016 custody order. We
remand this matter to the trial court to consider Mother’s request for
primary physical custody. In doing so, the trial court shall consider all of the
Section 5328(a) custody factors and any relevant Section 5337(h) relocation
factor and delineate the reasons for its decision pursuant to relevant
statutory and case law. See A.V. v. S.T., supra; D.K. v. S.P.K., supra; 23
Pa.C.S.A. § 5323(d). The trial court may receive additional testimony
presented by the parties, if necessary, in thoroughly considering all of the
Section 5328(a) custody factors and any relevant Section 5337(h) relocation
factor.
- 13 -
J-S54029-16
Order vacated. Case remanded for further proceedings. Application
for Relief -- Motion to Strike denied. Jurisdiction relinquished.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2016
____________________________________________
6
Based on this disposition, we need not address the remaining issues
Mother raises in her brief.
- 14 -