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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.D.D. :
:
:
APPEAL OF: K.M.D. : No. 214 MDA 2017
Appeal from the Order Entered December 30, 2016
In the Court of Common Pleas of Lebanon County
Civil Division at No: 2011-20752
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 17, 2017
K.M.D. (“Mother”) appeals from the order entered December 30, 2016,
in the Court of Common Pleas of Lebanon County granting J.D.D. (“Father”)
permission to relocate to Huntingdon County with the parties’ minor
children, W.D., a male born in November 1999, and M.D., a female born in
May 2001 (collectively, “the Children”). After careful review, we vacate and
remand with instructions.
We glean the factual and procedural history of this matter from the
certified record. Mother and Father are former spouses who married in
2000, separated in 2011, and divorced in 2014. Mother commenced the
underlying custody proceedings by filing a complaint for custody on March
20, 2013. The trial court entered an agreed-upon custody order on February
7, 2014, pursuant to which the court awarded the parties shared legal and
physical custody of the Children. On December 24, 2014, Father filed a
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petition for modification of the custody order, in which he requested primary
physical custody of the Children. The court entered an agreed-upon custody
order on February 20, 2015, awarding primary physical custody to Father
and maintaining shared legal custody with both parties. The order further
awarded Mother partial physical custody of the Children every Wednesday
afternoon from school dismissal until 5:00 p.m. during the school year, and
from 3:00 p.m. to 6:00 p.m. during the summer. In addition, the order
awarded Mother partial physical custody one weekend per month from
Friday afternoon at 5:00 p.m. until Sunday afternoon at 5:00 p.m.
On September 2, 2016, Father filed a notice of proposed relocation,
indicating that he intended to move from Lebanon County to Huntingdon
County. Mother, acting pro se, filed a counter-affidavit objecting to the
relocation on September 16, 2016. On November 1, 2016, Mother, now
represented by counsel, filed a petition for special relief, in which she again
objected to the relocation, and requested that the trial court enter an order
requiring that Mother and the Children attend counseling in order to “repair
their relationship.” Petition for Special Relief, 11/1/16, at 3.
The trial court held a hearing on Father’s proposed relocation on
December 29, 2016. Mother failed to appear at the hearing. However,
Mother’s counsel did appear. Mother’s counsel endeavored to explain her
absence to the court, and the following discussion took place.
[Mother’s counsel]: To put on the record, Your Honor, I
mean, I think I have to explain that there was -- that the parties
have reached an agreement in principle. It was my
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understanding based on the fact that my client had contacted
me and stated that she had a pre-planned vacation. I believed
that they were going to reach an agreement. I told her that I
believe that we’re not going to have a relocation hearing. You
are going to be able to reach an agreement.
However, with the holidays, being we were playing phone
tag, we weren’t able to work out the different terms as far as
exactly how things were going to play out.
So at this point I haven’t had -- I attempted to contact my
client. I haven’t been able to do so. Yesterday, today, the day
before I tried to reach out to her, and have not heard back from
her.
So I’m in a position where I don’t think I can appropriately
state what her position is. I can state where we were at as far
as what the agreement in principle was, but I think that’s all that
I can do.
***
THE COURT: . . . . If she was that concerned and didn’t get
a signed agreement saying -- let me ask you this so the record is
clear: The agreement, whatever the terms might have been,
didn’t dispute that he was going to relocate; is that correct?
[Mother’s counsel]: That’s correct.
THE COURT: Well, then it’s an academic matter. She just
doesn’t agree with all the terms and conditions. But had she
been here, I would have asked her the same thing, you know:
Are you opposing the relocation?
***
Let me say this for the record: She knew it was going to
be a relocation; correct?
[Mother’s counsel]: Your Honor –
THE COURT: She just thought there were some other
terms.
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[Mother’s counsel]: Prior to this -- prior to this date I had
filed a Petition for Special Relief to work out -- to have this
worked out prior to relocation, establishing counseling so when
we got to the relocation there could be a conversation, or have
some third-party therapist come in and say what the relationship
is between mom and the rest of the family.
However, because -- I explained to my client as well as in
talking with [Father’s counsel] about the situation, I was -- my
client was very aware that the chances of her being successful in
fighting the relocation were minimal, but it was really her goal to
try to re-establish her relationship with her kids.
So I tried to do that before, but I put it on hold because I
figured if we could work out an agreement, why have a
contentious hearing, before we have the kids take the stand and
have these different roles.
THE COURT: Fair enough. Let me rule this way:
N.T., 12/29/16, at 2-6.
The trial court then dictated the order complained of on appeal, which
it revised slightly and entered on December 30, 2016. In its order, the court
granted Father permission to relocate with the Children to Huntingdon
County. The order further provided that the Children’s counselor should
refer them to a new counselor in Huntingdon County, and that Mother would
be able to contact the Children’s new counselor to discuss the possibility of
family counseling. The order concluded by stating that the parties’ prior
custody arrangement “shall continue in full force and effect until and unless
either party requests a modification of the existing Custody Order.” Order,
12/30/16, at 2. Mother timely filed a notice of appeal on January 27, 2017,
along with a concise statement of errors complained of on appeal.
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Mother now raises the following questions for our review.
1. Did the Trial Court err when it failed to hold a full hearing with
respect to [Father’s] Petition to Relocate, as required by 23
Pa.C.S. § 5337?
2. Did the Trial Court err when it failed to address the ten
relocation factors, as required by 23 Pa.C.S. § 5337, when it
granted [Father’s] Petition to Relocate?
3. Did the Trial Court err when it modified the existing custody
order without requiring that [Father] follow the dictates of
Pa.R.C.P. 1915.17(f)(1), requiring the filing of a Petition to
Modify Custody once a counter-affidavit objecting to the
proposed relocation has been served upon [Father] and filed
with the Court?
4. Did the Trial Court err when it failed to hold a full hearing,
pursuant to 23 Pa.C.S. § 5337(g)(1), prior to modifying the
existing custody order?
Mother’s Brief at 4 (suggested answers omitted).
We review Mother’s claims mindful of our well-settled standard of
review.
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).
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“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted). The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a).
(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)
(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
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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.A. § 5328(a).
In addition, when considering a parent’s request to relocate with his or
her child, trial courts must consider the ten factors set forth at 23 Pa.C.S.A.
§ 5337(h).
(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:
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(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.
(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.
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(10) Any other factor affecting the best interest of
the child.
23 Pa.C.S.A. § 5337(h).
Instantly, in the order complained of on appeal, the trial court
explained that it granted Father permission to relocate to Huntingdon County
“following comments by [M]other’s counsel, [] in recognition of the fact she
is not here to present any testimony to oppose the relocation, [and in
recognition of] the fact that but for some counseling issues she would not
have opposed the relocation[.]” Order, 12/30/16, at 1. In its opinion, the
court set forth its findings with respect to the Section 5337(h) factors. In
discussing the factors, the court emphasized that permitting Father to
relocate with the Children to Huntingdon County would allow the Children to
live on a family farm and be closer to members of their extended family.
Trial Court Opinion, 2/15/17, at 8-11. The court did not set forth any
findings with respect to the Section 5328(a) factors.
We first address Mother’s first, second, and fourth issues, which are
interrelated. In these issues, Mother argues that the trial court erred by
failing to conduct an adequate hearing on Father’s notice of proposed
relocation prior to entering the order complained of on appeal. Mother’s
Brief at 13-16, 18-19. Mother contends that she did not consent to Father’s
proposed relocation, and that the court’s conclusion that she did is not
supported by the record. Id. at 13-14. Mother further contends that,
because she did not consent to Father’s relocation, the court was obligated
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to hear testimony before reaching a decision on Father’s request to
relocate.1 Id. at 13-16. We agree.
Initially, we stress that we cannot conclude from the record before us
that Mother consented to Father’s proposed relocation. Mother filed a
counter-affidavit on September 16, 2016, as well as a petition for special
relief on November 1, 2016, indicating that she opposed the relocation.
While counsel stated during the December 29, 2016 hearing that Mother and
Father were negotiating an agreement that would allow Father to relocate,
the details of that agreement were never finalized. N.T., 12/29/16, at 3. In
addition, counsel’s statements suggest that Mother was only negotiating the
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1
As part of her fourth issue, Mother argues that the trial court erred by
failing to discuss the factors set forth at Section 5328(a). We disagree. This
Court has held that trial courts need not address the Section 5328(a) factors
unless the court makes, or is asked to make, a change to the parties’
underlying “form of custody.” S.W.D., 96 A.3d at 406. If a court merely
addresses “a discrete custody-related issue,” such as “a dispute over a
custody-exchange location; which youth sports the children should play; or
whether a parent should be required to have children’s toys, beds, or other
things in his or her house[,]” consideration of the Section 5328(a) factors is
not required. Id. at 402-03 (citing M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super.
2014)) (footnote omitted). Here, the court did not change, nor was it asked
to change, the parties’ underlying form of custody. In his notice of proposed
relocation, Father indicated that no change to the current custody schedule
would be necessary, and the court did not include any changes in the order
complained of on appeal. While the court included provisions in the order
addressing the Children’s need for counseling in Huntingdon County, it is
clear that the Children’s need for counseling is a discrete custody-related
issue along the lines of those described in S.W.D., and does not require
consideration of the Section 5328(a) factors. However, if the court changes,
or is asked to change, the underlying form of custody following remand, the
Section 5328(a) factors must be discussed.
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agreement because she believed that her chances of opposing the relocation
successfully were “minimal.” Id. at 5. Counsel did not state that Mother
supported Father’s relocation, nor did he state that Mother had no objection
to the relocation. To the contrary, counsel made it clear during the hearing
that he was not able to “appropriately state what her position is.” Id. at 3.
It follows that the trial court erred by granting Father’s proposed
relocation without taking testimony. As argued by Mother in her brief, “[t]he
party proposing the relocation has the burden of establishing that the
relocation will serve the best interest of the child[.]” 23 Pa.C.S.A. §
5337(i)(1). Here, the trial court did not hold Father to his burden of proof,
and Father did not present any evidence at all that his proposed relocation
would be in the Children’s best interests. While the court addressed each of
the Section 5337(h) factors in its opinion, the court’s findings are completely
without evidentiary support. This Court may not accept a trial court’s
findings unless those findings are supported by competent evidence of
record. V.B., 55 A.3d at 1197. Accordingly, we must vacate the order
granting Father permission to relocate to Huntingdon County, and remand
this matter for a new relocation hearing.
We next address Mother’s third issue on appeal, in which she argues
that the trial court erred by modifying the existing custody order without
requiring Father to file a petition for modification of custody. Mother’s Brief
at 17. Mother directs our attention to Pennsylvania Rule of Civil Procedure
1915.17(f), which provides as follows.
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(f) If the party proposing the relocation has received notice of
objection to the proposed move after serving a notice of
proposed relocation as required by 23 Pa.C.S. § 5337 et seq.,
the party proposing relocation shall file:
(1) a complaint for custody or petition for modification, as
applicable;
(2) a copy of the notice of proposed relocation served on the
non-relocating party;
(3) a copy of the counter-affidavit indicating objection to
relocation; and
(4) a request for a hearing.
Pa.R.C.P. 1915.17(f).
Mother is correct that Rule 1915.17(f) required Father to file a petition
for modification of custody after receiving her counter-affidavit opposing
relocation. Accordingly, on remand, Father must file a petition for
modification before any relocation hearing takes place.2
Based on the foregoing, we conclude that the trial court erred by
granting Father permission to relocate without taking testimony. On
remand, Father must comply with Rule 1915.17(f) by filing a petition for
modification of custody. After Father files the petition for modification, the
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2
We observe that Rule 1915.17(g) provided Mother with the option to file
her own petition for modification of custody if Father failed to do so. See
Pa.R.C.P. 1915.17(g) (“If the non-relocating party has been served with a
notice of proposed relocation and the party proposing relocation has not
complied with subdivision (f) above, the non-relocating party may file: . . .
[a] petition for modification[.]”). Nonetheless, Mother’s decision not to file a
petition does not excuse Father’s failure to comply with the mandatory
language of Rule 1915.17(f).
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court must conduct a new hearing, during which Father may present
evidence in support of his requested relocation. Only then may the court
grant or deny permission to relocate.
Order vacated. Case remanded for further proceedings consistent with
this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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