J-A04007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.B.,
Appellant No. 3115 EDA 2016
Appeal from the Order Entered August 1, 2016
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 1186 CV 2016, 193 DR 2016
BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 05, 2017
A.B. (“Father”) appeals the order entered August 1, 2016, permitting
K.C. (“Mother”) to relocate with the parties’ minor sons, A.C.B., born in
January of 2012, and R.M.B., born in May of 2013 (collectively, the
“Children”), from Brodheadsville, Monroe County, Pennsylvania, to Seaford,
Sussex County, Delaware. The order also awarded shared legal custody of
the Children to the parties and primary physical custody to Mother with
periods of physical custody to Father.1 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The trial court referred to this as shared physical custody. Order, 8/1/16,
at 18, ¶2.
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On February 19, 2016, Mother filed a complaint for primary physical
custody of the Children and a request to relocate with the Children to
Seaford, Delaware.2 On February 23, 2016, Father filed a counter-affidavit
objecting to the proposed relocation. Mother filed a notice of proposed
relocation on February 24, 2016. On March 23, 2016, Father filed an answer
and new matter containing a modification request seeking primary physical
custody of the Children if Mother pursued relocation.3, 4
The court conducted a custody/relocation hearing on June 1, 2016.
Mother and Father, who were both represented by counsel, each testified on
their own behalf. In addition, the court heard from: Maternal Grandmother,
A.C.; Mother’s friend, Amanda Lloyd; Father’s employer and friend, Kevin
Conkle; Father’s employer, Frank Malpere; Paternal Grandmother, K.B.; and
Father’s cousin, B.R.5 At the time of the hearing, Mother and Father, who
____________________________________________
2
Mother grew up in the Seaford, Delaware area and her extended family,
including her mother, father, step-mother, sister, and brother, continue to
reside there. N.T., 6/1/16, at 7, 60. In addition, Mother and Father
previously resided in this area from August 2012 to August 2013. Id. at 15.
3
At the time of the hearing, Father requested primary physical custody if
Mother relocated to Delaware. In the event Mother chose not to relocate,
Father, however, requested shared physical custody. Id. at 225-226.
4
Upon review of the record, prior to the entry of the August 1, 2016 order,
the parties were not subject to a court order with regard to legal and
physical custody of the Children.
5
The trial court incorrectly refers to B.R. as Father’s sister. Opinion,
8/1/16, at 5.
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were separated and had a “strained” relationship, continued to reside
together in the same residence in Brodheadsville. N.T., 6/1/16, at 5, 13. At
the conclusion of the hearing, the court denied Mother’s oral request to
temporarily grant the relocation pending the court’s decision, and declined to
require Father to vacate the parties’ residence. Id. at 285-289.
By order dated and entered August 1, 2016, the court granted
Mother’s request to relocate to Seaford, Delaware. The court further
awarded shared legal custody to the parties, and primary physical custody to
Mother with physical custody to Father on alternating weekends from Friday
at 6:00 p.m. until Sunday at 5:00 p.m., at any time there is a break in the
school calendar of five consecutive days and as the parties agree.6 Also on
August 1, 2016, the court issued an opinion analyzing the required custody
and relocation factors. Thereafter, on August 26, 2016, Father 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 September 6, 2016, the
court filed a formal opinion pursuant to Pa.R.A.P. 1925(a) incorporating, in
part, its opinion of August 1, 2016.7
In his brief on appeal, Father raises the following issues:
____________________________________________
6
The court further directed the parties to maintain the current shared
physical custody schedule until relocation occurs. Order, 8/1/16, at 18, ¶2A.
7
While the court’s opinion pursuant to Pa.R.A.P. 1925(a) was filed and
docketed on September 6, 2016, we note it was not forwarded until
September 7, 2016.
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A. Did the court err in its application of the relevant relocation
factors and ultimate finding that [M]other carried her burden
of showing the relocation and change in primary custody was
in the [C]hildren’s best interest?
B. Was it error for the court to consider evidence not of record,
which was not subjected to cross examination, including a
letter referencing a drug report and testimony which was
heard in a PFA matter on essentially the same facts by
another judge of concurrent jurisdiction?
Father’s Brief at 10 (emphasis omitted).
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.
§§ 5321-5340, our standard of review is as follows:
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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (internal citation
omitted).
We have stated:
the discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
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proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard:
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
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(7) Sole legal custody.
23 Pa.C.S. § 5323(a).
Section 5338 of the Act provides that, upon petition, a trial court may
modify a custody order if it serves the best interests of the child. 23 Pa.C.S.
§ 5338. Section 5328(a) sets forth the best interest factors that the trial
court must consider. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.
2011).
Section 5328(a) of the Act provides as follows:
§ 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.
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(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.
(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).
Further, Section 5337(h) sets forth the relocation factors that a trial
court must consider when ruling on a relocation petition. E.D., 33 A.3d at
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79. Where a request for relocation of the subject child is involved, the trial
court must consider the following ten relocation factors set forth within
Section 5337(h) of the Act:
(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.
(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.
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(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). See E.D., 33 A.3d at 81 (“Section 5337(h) mandates
that the trial court shall consider all of the factors listed therein, giving
weighted consideration to those factors affecting the safety of the child.”)
(emphasis in original).
Further, with regard to the custody and relocation factors, we have
stated as follows:
“All of the factors listed in [S]ection 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(a) 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, [620 Pa. 727], 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). A.V. v.
S.T., 87 A.3d 818, 823 (Pa. Super. 2014).
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). A court’s explanation of
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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) (emphasis in
original). Moreover, “When a custody dispute involves a request by a party
to relocate, we have explained ‘there is no black letter formula that easily
resolves relocation disputes; rather, custody disputes are delicate issues that
must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417,
421 (Pa. Super. 2012) (quoting Baldwin v. Baldwin, 710 A.2d 610, 614
(Pa. Super. 1998)).
Turning to Father’s first issue, he asserts that the trial court misapplied
the relevant relocation factors and erred in finding Mother established that
primary physical custody and relocation was in the Children’s best interest.
Father’s Brief at 14. Father argues that, as he was involved with the
Children on a daily basis, his “full-time role . . . was not adequately
addressed, the order was inappropriate under the law, and not in the
children’s best interest.” Id. Referencing a lack of career advancement,
poor educational performance, the necessity for daycare and impact on daily
routine, and severance of family bonds, he proffers that Mother presented
“no compelling reason” for relocation and “[a]bsent[] the alleged conflict
between the parties, relocation is clearly not warranted.” Id. Father avers
relocation affords “no great improvement” to the quality of life for Mother or
the Children. Id. at 16-17. Likewise, given his and his family’s extensive
involvement with the Children, coupled with Mother’s desire to relocate three
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and one-half hours away, Father argues there is no adequate substitute
custody arrangement. Id. at 17. Lastly, Father questions the trial court’s
finding of no educational advantage weighing towards the Children’s quality
of life and long-term well-being in light of the evidence of Seaford School
District’s poor performance. Id. at 18. Noting the statistical evidence
presented as to the two school districts in question, Father states, “Despite
these facts, the trial court found, that ‘neither School has an educational
advantage over the other,’ which is clearly against the facts as presented.”
Id. (internal citation omitted).
As we construe this issue, Father questions the trial court’s findings of
fact and determinations regarding credibility and weight of the evidence.
Under the aforementioned standard of review applicable in custody matters,
these are not disturbed absent an abuse of discretion. See C.R.F., 45 A.3d
at 443. Upon review, we find no abuse of discretion.
In the case at bar, as required by law, the trial court carefully analyzed
and addressed the factors under Section 5328(a) and Section 5337(h) in
considering the Children’s best interests and relocation. Opinion, 8/1/16, at
5-13. Significant to the trial court were Father’s anger and threatening
behavior and the resulting conflict between the parties, as well as Father’s
drug use. Id. at 6-10, 13-14.
Mother described the home environment as “toxic” and “hostile”
noting, “[Father] is very angry. He does not communicate well, so it tends
to lead to arguments, lots of yelling, lots of screaming. . . .” N.T. 6/1/16, at
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31. She confirmed that this led to destructive behavior, such as Father
breaking things and putting holes in walls. Id. at 32-33.
Moreover, evidence was also presented of Father’s threatening
behavior. Most recently, approximately one week prior to the
custody/relocation hearing and the morning of the pre-hearing, Mother
indicated that she called the police after Father became angered that she
gave child A.C.B. milk in bed, and he threatened Mother. N.T., 6/1/16, at
38. Mother testified, “He was very angry. He had threatened against [sic]
me he was going to harm me. And then when he left in his fit of anger, he
took his handgun with him and left the house very abruptly.” Id. at 38-39.
Specifically, as reported by Mother, Father stated “he was going to knock
[me] out and he should have done it a long time ago.” Id. at 38, 115.
Similarly, Mother recounted another incident where Father became angered
and flipped the mattress after A.C.B. had an accident and wet the bed. Id.
at 33-34. Discussing this incident, Father admitted he was “not a great role
model” for his children. Id. at 265.
In yet another incident, Mother described Father becoming angered
with and confronting another driver with a gun while the Children were in
the car. N.T., 6/1/16, at 40-41. In addition, altercations between Father
and his brother-in-law, as well as Father and his uncle, were related. Id. at
19-20, 43. Further, Mother testified that Father smoked marijuana “daily,”
including while the Children were in his care. Id. at 42. While Father
indicated his intent not to smoke in the future, he acknowledged that he last
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smoked two and one-half to three weeks prior to the custody/relocation
hearing. Id. at 235, 262.
In summarizing its analysis, the trial court stated as follows:
In conclusion, we find that the factors weigh more heavily
in favor of the Children relocating to Seaford, Delaware. We
make this determination after careful review of the record and
evidence. While no one factor alone outweighs any other factor,
we must consider all the factors together to determine what is
best for the Children. Father has had repeated outbursts, the
last one which resulted in the issuance of a PFA. In addition,
after Father indic[a]ted that he does not want to use drugs, he
recently tested positive for a controlled substance. We are
concerned about the level of hostility between the parties and
Father’s apparent inability to control his anger. We will require
Father to continue with anger management counseling and drug
and alcohol treatment. In weighing all if [sic] these factors; we
believe that it would be in the best interests of the Children to
relocate with Mother. Accordingly, we will grant Mother’s
request to relocates [sic] and her request for primary physical
custody of the Children.
Nevertheless, we recognize that Father has been involved
in the Children’s lives. As such, we will grant Father extended
periods of visitation over school holidays and during summer
school vacation. We believe, however, that Mother will be better
able to continue to provide the care and support for the Children
and that the relocation will be in the best interests of the
Children. . . .
Trial Court Opinion, 8/1/16, at 13-14.
After review of the record, we determine that the trial court’s findings
regarding the custody factors set forth in Section 5328(a) and relocation
factors set forth in Section 5337(h) and determinations regarding the
Children’s best interests and relocation are supported by competent
evidence in the record. See C.R.F., 45 A.3d at 443. As we find that the
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trial court has not abused its discretion, and its conclusions are not
unreasonable in light of the sustainable findings of the trial court, we will not
disturb them. Id.
In his second issue, Father maintains the trial court committed
reversible error by considering extra-judicial evidence not subject to cross-
examination in violation of his right to due process.8 Father’s Brief at 19.
Specifically, Father points to a letter forwarded post-hearing that referenced
drug test results from Catholic Social Services, as well as a Protection from
Abuse (“PFA”) order entered against Father post-hearing.9 Id. Father
suggests the trial court’s consideration of this evidence “had a prejudicial
effect” on the court’s analysis and determination of the relevant factors. Id.
Moreover, Father argues the court’s consideration of this evidence was in
violation of his right to due process and the “in court presentation of
evidence.” Id. at 19-20. Father further maintains that the court’s
consideration of this evidence as it relates to the PFA order was in violation
of the coordinate jurisdiction rule. Id. at 20. Father posits that, with the
PFA, Mother was attempting to exclude Father from the joint home based
upon the same evidence presented at the June 1, 2016 custody/relocation
hearing, where she was unsuccessful. Id. at 22.
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8
We observe Father proceeded to provide extra-judicial evidence of his own
with his submissions to this Court.
9
A final PFA order was entered against Father on July 25, 2016.
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In assessing this challenge, the trial court found a lack of prejudice to
Father with regard to its ultimate determination regarding custody and
relocation. The trial court stated:
[Father] complains that we erred in considering evidence
which is not of record, a Protection from Abuse (“PFA”) Order.
The PFA Order was entered after our hearing but before our
Opinion was filed. We took judicial notice of the PFA Order
which was issued by another judge of this Court. Nevertheless,
we found [Mother] credible in her testimony concerning
[Father’s] anger and outbursts. The issuance of the PFA did not
have a prejudicial effect on our consideration of the factors for
custody or granting of [Mother’s] request to relocate.
In his next point of error, [Father] complains that we
committed an error in admitting evidence related to an alleged
positive test by [Father] for controlled substances. First, we did
not admit the letter into evidence which references the positive
test by [Father] for controlled substances. However, we agree
that we should not have addressed the positive test by [Father]
in our Opinion. Nevertheless, it does not change our decision
about what is in the Children’s best interest and permitting the
relocation to Seaford, Delaware. We find no error in this issue.
Statement Pursuant to Pa.R.A.P. 1925(a), 9/6/16, at 1-2 (unpaginated).
With this, we agree.
An error will be deemed harmless if:
(1) the error did not prejudice the defendant or the prejudice
was de minimus; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence . . . was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007). See
Foflygen v. Allegheny General Hospital, 723 A.2d 705, 708 (Pa. Super.
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1999) (“[Evidentiary] rulings must be shown to have been not only
erroneous but also harmful to the complaining part[y].”).
Instantly, as indicated above, evidence was presented that Father
smoked marijuana on a daily basis, including while the Children were in his
care. N.T., 6/1/16, at 42. Father himself admitted to having smoked
marijuana within two and one-half to three weeks of the custody/relocation
hearing. Id. at 235, 262. Moreover, Father had not completed a drug and
alcohol evaluation as court-ordered.10 Id. at 234-235, 260-262.
As to Father’s anger and abusive behavior, evidence was presented
regarding incidents involving Father’s outbursts and threatening behavior,
including those directed to and in the presence of the Children and involving
firearms. Id. at 33-34, 38-41. In addition, Father had not completed anger
management, as court-ordered.11 Id. at 233-234, 257-259. As such, there
was sufficient evidence with regard to Father’s drug use and anger that the
post-hearing evidence regarding drug test results and a PFA was merely
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10
By order dated March 15, 2016, and entered March 18, 2016,
incorporating the recommendations of the custody conciliation conference,
Father was directed to submit himself to Catholic Social Services for a drug
and alcohol evaluation and follow all recommendations for treatment. Order,
3/18/16, Recommendation, ¶2.
11
Also by order entered March 18, 2016, Father was instructed to attend
family counseling focusing on anger management at Catholic Social Services
for consecutive weeks. Order, 3/18/16, Recommendation, ¶1.
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cumulative and was not prejudicial, thereby rendering any error harmless.
Thus, Father’s claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2017
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