J.L.H. v. J.C.S. ( 2019 )

J-A30042-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
J.L.H., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.C.S. :
Appellee : No. 1097 WDA 2018
Appeal from the Order Entered July 13, 2018
in the Court of Common Pleas of Lawrence County
Civil Division at No(s): 11158 of 2009, C.A.
BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 10, 2019
J.L.H. (Father) appeals from the order entered July 13, 2018, which
awarded shared legal and physical custody of P.S. (Child), born in March 2009,
to J.C.S. (Mother), and granted Mother’s petition to relocate. Upon review, we
vacate the order and remand for further proceedings.
In light of our disposition, a full recitation of the factual history is
unnecessary. Briefly, the parties were never married and separated prior to
the birth of Child.1 Mother has always had primary physical custody of Child.
At the time of Mother filed her petition for proposed relocation, Mother and
Child were living in Lawrence County.
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1 Child “suffers [from] a variety of physical and mental ailments as follows:
[a]utism, hypothyroidism (Has[h]imoto’s Syndrome), global development
delay, [and] learning disabilities.” Findings of Fact and Order of Court,
7/13/2018, at 1.
*Retired Senior Judge assigned to the Superior Court.
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Father resides in New Middletown, Ohio with his wife A.R. Father has
always had shared legal and partial physical custody of Child, although
Father’s contact and time with Child has increased throughout the years. As
per a March 30, 2016 order of court, Father has custody during the school
year every other weekend from Friday after school until the beginning of
school on Tuesday and one evening per week on the week preceding Father’s
weekend custody. In the summer, Father shares physical custody on a week
on/week off basis. Additionally, holidays are shared throughout the year.
Findings of Fact and Order of Court, 7/13/2018, at 2-3.
In September 2017, Father pro se filed a petition to modify custody, and
after retaining counsel, filed an amended petition on December 15, 2017. On
December 28, 2017, Mother filed a notice of relocation. Therein, Mother
requested that she and Child be permitted to relocate to San Diego, California,
where her then fiancé, now husband, is stationed.2 Mother’s Notice of
Proposed Relocation, 12/28/2017, at 2 (unnumbered). Father filed a counter-
affidavit objecting to Mother’s proposed relocation. Father’s Counter-Affidavit
Regarding Relocation, 1/5/2018. A three-day hearing was held on these
petitions in April and May of 2018.
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2Mother and S.F., an enlisted United States Naval Aircraft Electrician, were
married on June 18, 2018. Findings of Fact and Order of Court, 7/13/2018,
at 1.
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Following the custody and relocation hearing, the trial court issued an
order of court, which included findings of fact. Therein, the trial court
addressed ten relocation factors, awarded Mother shared legal and physical
custody of Child, and permitted Mother to relocate with Child to San Diego.
Findings of Fact and Order of Court, 7/13/2018 at 8-9. The order also set
forth Father’s periods of partial custody. Id. at 9-10.
On August 1, 2018, Father filed a notice of appeal, as well as a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court issued its Rule 1925(a) opinion on
September 6, 2018, in which the court relied on its findings of fact and order
of court filed on July 13, 2018, stating its previous order “fully addressed” the
issues raised by Father.
Father sets forth four issues for our review. Father’s Brief at 7-8. We
begin our review by addressing Father’s first issue, in which Father argues the
trial court abused its discretion and/or committed an error of law when it failed
to consider the sixteen statutory custody factors set forth in the Child Custody
Act. Id. at 14-17. It is undisputed that the trial court considered only the ten
relocation factors when rendering its decision. Findings of Fact and Order of
Court, 7/13/2018, at 2-7.
In reviewing a custody order, our 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. We defer to the credibility
determinations of the presiding trial judge, who viewed and
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assessed the witnesses first-hand. We, however are not bound
by the trial court’s deductions or inferences from its factual
findings, and ultimately, the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of record.
We may reject the trial court’s conclusions only if they involve an
error of law, or are unreasonable in light of the sustainable
findings of the trial court.
P.J.P. v. M.M., 185 A.3d 413, 417 (Pa. Super. 2018) (citations and internal
quotation marks omitted).
When deciding[, as in this case,] 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. All of the factors listed in [S]ection 5328(a) are required
to be considered by the trial court when entering a custody order.
Section 5337(h) requires courts to consider all relocation factors
[when a party is petitioning to relocate with the child]. The record
must be clear on appeal that the trial court considered all the
factors.
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. Additionally, [S]ection 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. Section 5323(d) applies to
cases involving custody and relocation.
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. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
A.V. v. S.T 87 A.3d 818, 822–23 (Pa. Super. 2014) (citations, quotation
marks and emphasis in the original omitted).
In the instant case, upon the conclusion of testimony and summations
by the parties, the trial court adjourned. Later, the court issued concurrently,
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findings of fact and an order of court, which, inter alia, permitted Mother to
relocate with Child. Within its order, the court detailed its consideration of the
relocation factors. Findings of Fact and Order of Court, 7/13/2018, at 2-7.
However, absent from the court’s order and the record is any mention of its
consideration of the custody factors. It is this Father contends was an error,
one which Mother concedes. See Mother’s Brief at 5 (stating that the trial
court committed “an error of law in failing to evaluate the custod[y] factors.”).
As noted by Father in his brief on appeal, this Court “has already
encountered this precise issue in” A.V. v. S.T., supra. Appellant’s Brief at
16. In that case, the trial court awarded A.V. (mother) primary custody and
allowed her to relocate with the children. A.V., 87 A.3d at 819. The court also
set forth a partial custody schedule for S.T. (father), who had previously
enjoyed shared physical custody. Id. In its opinion in support of this
decision, the trial court addressed only the relocation factors, failing to set
forth its consideration of the custody factors. Id. at 823-24. Upon review,
this Court determined that “[b]y omitting application of the Section 5328(a)
custody factors, although making a new award of custody, the trial court
erred.” Id. at 824.
In the instant case, the trial court held a three-day hearing on Mother’s
petition to relocate and Father’s petition for a custody modification. See
Findings of Fact and Order of Court, 7/13/2018, at 1 (stating it was entering
its order “following a full hearing on [Mother’s] petition to relocate and
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[Father’s] petition to modify custody”) (unnecessary capitalization omitted).
As in A.V., in its order permitting Mother’s relocation to San Diego, the trial
court inevitably altered Father’s period of custody. Based on the foregoing,
the trial court was required to consider the custody factors. See A.M.S. v.
M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (“The trial court must consider
all ten relocation factors and all sixteen custody factors when making a
decision on relocation that also involves a custody decision.”). Its failure to
do so, either on the record or in a subsequent order or written opinion,
constitutes reversible error. Id. (“Given the trial court’s error, we vacate the
order, and we remand.”).
Accordingly, we vacate the court’s July 13, 2018 order of court and
remand for further proceedings.3 On remand, the trial court is directed to
consider all of the best interest and relocation factors and set forth its analysis
in a written opinion. Additionally, if the trial court deems it necessary, it should
conduct an additional hearing in order to address all of the best interest and
relocation factors.4
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3 In light of our disposition, we need not address Father’s remaining issues at
this time.
4 This Court is cognizant that several months have elapsed since the trial
court’s July 2018 order and according to the parties at argument, Mother and
Child have since relocated to San Diego. Based on the passage of time and
the change in circumstances that have occured since the custody/relocation
hearing and subsequent order, the trial court should consider whether further
proceedings are necessary in order to make a detailed and informed decision
on the petitions before the court.
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Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2019
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