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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
A.F., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.F., :
:
Appellee : No. 2500 EDA 2016
Appeal from the Order Entered July 25, 2016
in the Court of Common Pleas of Northampton County
Domestic Relations at No(s): C-0048-CV-2012-11928
BEFORE: OLSON, RANSOM, and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED DECEMBER 28, 2016
The Majority has concluded that the trial court erred “in limiting the
testimony Mother could present at the evidentiary hearing[,]” thereby
hindering her ability to establish changes in circumstances to warrant
modification of the prior custody order. Majority Memorandum at 5, 9.
Thus, the Majority has determined to vacate the trial court’s order denying
Mother’s request for relocation and remands for a new, complete evidentiary
hearing in accordance with 23 Pa.C.S. § 5337(g)(1). Majority Memorandum
at 9-10. Because I would hold that no error occurred and no hearing is
warranted, I respectfully dissent.
In its 1925 opinion, the trial court noted that it did consider each of
the changes cited by Mother that had arisen since the initial denial of her
*Retired Senior Judge assigned to the Superior Court.
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relocation petition almost exactly a year prior. Specifically, the trial court
stated that it had inquired with “counsel for Mother concerning what
circumstances have changed since June of 2015” when a prior hearing was
held and an opinion was issued denying Mother’s request. Trial Court
Opinion, 7/25/2016, at 5. After Mother’s counsel provided the court with
four changes, the trial court “found that only one of Mother’s stated changes
in circumstances constituted a legitimate change in circumstances – [P.F’s]
change in educational status.”1 Id. Nonetheless, the trial court allowed
Mother to make an unrestricted offer of proof, including entering exhibits, as
to all the alleged changes.
Based upon this record, I would hold that the trial court did consider
all of the changes set forth by Mother, and held a hearing on the issue that
could conceivably have warranted modification. The fact that the trial court
rejected most of Mother’s claims as insignificant or not an actual change of
the status quo, does not constitute per se error. There is no reason for a
1
As to the remainder of changes cited by Mother, the trial court found that:
(1) the possibility of Mother’s parents moving closer to Sayre, Pennsylvania,
the area to which Mother sought to relocate, did not constitute a change in
circumstances since “Mother revealed that Mother’s parents had no solid
plans to move” and only cited an anticipated relocation date; (2) Mother’s
purchase of a home in Sayre did not constitute a meaningful change,
especially since Mother had bought the home and relocated to Sayre after
the trial court’s initial denial of her relocation request; and (3) Mother’s
willingness to come forth with evidence that she failed to present at the prior
hearing, “even though such information was readily available and known to
Mother at the time of the first hearing,” was not a changed circumstance.
Trial Court Opinion, 7/25/2016, at 5-6.
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trial court to hear testimony on circumstances that, if proven true, would not
warrant modification. See Commonwealth ex rel. Hickey v. Hickey, 264
A.2d 420, 422 (Pa. Super. 1970) (“In any petition for a change in custody or
visitation rights the petitioner has the burden of proving a change in
circumstances since the original order.”). Judicial resources should not be
wasted on exercises in futility.
Furthermore, by permitting Mother to make an offer of proof regarding
the additional “changes” it rejected, the trial court properly made a record to
allow this Court to consider the correctness of its determinations regarding
the lack of significance of those purported changes. Upon this record, I
would affirm the trial court’s rulings.
Thus, I find no error in the trial court’s decision to limit the hearing,
and I would not remand this case for a new hearing.
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