M.J.(E.)G. v. D.M.E. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.J.(E.)G., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
D.M.E. : No. 1127 WDA 2017
Appeal from the Order Dated July 19, 2017
In the Court of Common Pleas of Blair County Civil Division
at No(s): 2007 GN 5031
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 3, 2018
Appellant, M.J.(E.)G. (“Mother”), appeals from the July 19, 2017 Order
entered in the Court of Common Pleas of Blair County, which denied
Mother’s Petition for Relocation with regards to R.E. After careful review, we
affirm.
Mother and Appellee, D.M.E. (“Father”), have been divorced since
January 2008. They are parents to four children, W.E., M.E., B.E., and
fourteen-year-old R.E., who is the subject of this appeal. Pursuant to prior
custody orders, Mother had primary custody of B.E. and R.E., who are twins,
and Father had visitation every other weekend.1
____________________________________________
1B.E. is a non-verbal special needs child who has been diagnosed with Down
Syndrome, Autism, and Sensory-Integration Disorder, and requires
specialized education and medical care.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Mother worked at a family business for 23 years, until it closed in
2015. From September 2015 to February 2017, Mother lived in Bellwood,
Pennsylvania and worked local minimum wage jobs while seeking
employment that was more lucrative. Mother expanded her job search and,
in January 2017, obtained employment in Pittsburgh, Pennsylvania,
approximately 90 miles away.
Mother informed Father of her intention to move but did not file a
notice of proposed relocation pursuant to 23 Pa.C.S. § 5337.2 In response,
Father filed a Petition to Prohibit Plaintiff/Respondent from Relocating Child
Pursuant to 23 Pa.C.S. § 5337 (“Petition to Prohibit Relocation”). On
February 24, 2017, the trial court issued an Ex Parte Order prohibiting
Mother from relocating R.E. until the court held a hearing on the matter, and
granting physical custody of R.E to Father if Mother moved outside of the
Bellwood School District.3 Order, dated 2/24/17. Mother maintains that she
never received notice of the Petition to Prohibit Relocation or the Ex Parte
Order. On February 27, 2017, Mother relocated to Pittsburgh, Pennsylvania.
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2 Mother maintains that she “researched the issue of location and incorrectly
assumed that because it would not significantly impact [Father]’s time with
the children as [Father] would still receive every other weekend then she did
not have to file a Notice of Relocation.” Mother’s Brief at 6.
3The Ex Parte Order is dated February 24, 2017, but does not appear on the
docket until February 28, 2017.
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After a hearing, on March 7, 2017, the trial court entered an Order
granting physical custody of R.E. to Father, granting physical custody of B.E.
to Mother, and directing Mother to file a notice of proposed relocation within
10 days.4 Order, dated 3/7/17. On March 13, 2017, Mother filed a Notice of
Relocation (“Petition for Relocation”) and on March 15, 2017, Mother filed a
Petition for Emergency Special Relief requesting that the court vacate the
March 7, 2017 Order and return physical custody of R.E. to Mother.5 In
response, Father filed an Objection to Mother’s Petition for Relocation and
requested a hearing.
After a hearing on the Petition for Emergency Special Relief, on March
27, 2017, the trial court ordered physical custody of B.E. to remain with
Mother, and physical custody of R.E. to remain with Father and Paternal
Grandparents pending the last day of school and/or the custody relocation
hearing.6 Order, dated 3/27/17.
On June 28, 2017, the trial court held a hearing on Mother’s Petition
for Relocation. On July 19, 2017, the trial court denied Mother’s Petition for
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4The Order is dated March 7, 2017, but does not appear on the docket until
March 15, 2017.
5The Petition for Relocation is dated March 13, 2017, but does not appear
on the docket until March 16, 2017. The Petition for Emergency Special
Relief is dated March 15, 2017, but does not appear on the docket until
March 22, 2017.
6 The Order is dated March 27, 2017, but does not appear on the docket
until March 29, 2017.
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Relocation concerning R.E., and physical custody of R.E. remained with
Father. See Order, dated 2/24/17; Order, dated 3/7/17; Order, dated
3/27/17; Order and Opinion, dated 7/19/17. Upon agreement of the
parties, the trial court granted the Petition for Relocation concerning B.E.,
and physical custody of B.E. remained with Mother. See id.
Mother timely appealed. Both Mother and the trial court complied with
Pa.R.A.P. 1925.
Mother raises the following issues on appeal:
1. Whether the trial court erred by finding that []
Appellant cannot relocate with her daughter, R.E., to
the Pittsburgh area [and] the lower court misapplied
the relocation factors in that all that [sic] the
relocation factors, except preference of the child
would favor [Mother]’s relocation with both children.
2. Whether the court erred by separating twin
fourteen[-]year[-]old siblings?
Mother’s Brief at 4 (some capitalization omitted).
When reviewing child custody and relocation matters, our standard of
review is well settled:
Our paramount concern and the polestar of our analysis in this
case, and a legion of prior custody cases is the best interests of
the child. The best interests standard, decided on a case-by-
case basis, considers all factors which legitimately have an effect
upon the child's physical, intellectual, moral and spiritual well-
being. On appeal, our scope of review is broad in that we are
not bound by deductions and inferences drawn by the trial court
from the facts found, nor are we required to accept findings
which are wholly without support in the record. On the other
hand, our broad scope of review does not authorize us to nullify
the fact-finding function of the trial court in order to substitute
our judgment for that of the trial court. Rather, we are bound
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by findings supported in the record, and may reject conclusions
drawn by the trial court only if they involve an error of law, or
are unreasonable in light of the sustainable findings of the trial
court. Further, on the issues of credibility and weight of the
evidence, we defer to the findings [of] the trial judge.
Additionally, appellate interference is allowed only where it is
found that the custody order is manifestly unreasonable as
shown by the evidence of record.
Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
This Court may not interfere with a trial court’s conclusions unless they
“represent a gross abuse of discretion.” Luminella v. Marcocci, 814 A.2d
711, 716 (Pa. Super. 2002).
The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, governs all custody
proceedings commenced after January 24, 2011. E.D. v. M.P., 33 A.3d 73,
77 (Pa. Super. 2011). A trial court must consider sixteen custody factors
when deciding a Petition for Custody and ten relocation factors when
deciding a Petition for Relocation. See 23 Pa.C.S. § 5328; 23 Pa.C.S. §
5337. The party proposing the relocation has the burden of establishing that
the relocation will serve the best interest of the child. 23 Pa.C.S. §
5337(i)(1). When a custody arrangement is only in dispute because one
parent is choosing to relocate, a dual analysis of the custody factors and the
relocation factors is appropriate, “with the best interest standard as the
guide.” S.J.S. v. M.J.S., 76 A.3d 541, 550 (Pa. Super. 2013).
Our Supreme Court has explained, “[a]lthough the express wishes of a
child are not controlling in custody decisions, such wishes do constitute an
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important factor that must be carefully considered in determining the child's
best interest.” McMillen v. McMillen, 602 A.2d 845, 847 (Pa. 1992)
(citation omitted). Further, “[t]he child's preference must be based on good
reasons, and the child's maturity and intelligence must be considered.” Id.
Finally, “[t]he weight to be given a child's testimony as to his preference can
best be determined by the judge before whom the child appears.” Id.
As stated above, we review Mother’s arguments particularly
recognizing that “we are bound by findings supported in the record, and may
reject conclusions drawn by the trial court only if they involve an error of
law, or are unreasonable in light of the sustainable findings of the trial
court.” Saintz, supra at 512.
Mother first avers that the trial court misapplied the 23 Pa.C.S. § 5337
relocation factors by relying primarily on R.E.’s preference when the
remaining relocation factors favor relocation with Mother. Mother’s Brief at
13, 22. Mother argues that the trial court should consider each factor
equally, and should only give weighted consideration to those factors that
affect the safety of a child. Id. at 27. We disagree.
While Section 5337 compels a trial court to give weighted
consideration to any relocation factors which affect a child’s safety, it does
not indicate that a trial court should only give weighted consideration to
those factors affecting safety. See 23 Pa.C.S. § 5337(h). Rather, when
making a decision under the Custody Act, “[i]t is within the trial court's
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purview as the finder of fact to determine which factors are most salient and
critical in each particular case.” M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.
Super. 2013). Further, the statute does not indicate that a trial court should
allow relocation if most factors are in favor of relocation. Rather, the
standard is the “best interest of the child.” See 23 Pa.C.S. § 5337(i)(1).
Instantly, the trial court opined:
The child R.E. stated a mature preference to remain in Blair
County and live with [Father]. She is almost 14 and going into
the 9th grade next year. She has been doing well in school and
has a secure peer group of friends.
***
The child R.E. credibly testified that the move will not enhance
her quality of life as she would have to change schools and have
difficulty adjusting to the new school, making new friends, and
dealing with new teachers and curriculum. She credibly asserted
that it would be to her detriment to move. . . . She has had to
change schools before and would find it difficult to do so again.
She is doing well in school now and wants to continue that
course. She is ambitious academically and feels she can best
succeed in her current school. She is content to live with
[Father] even though she has mainly lived with [Mother] before.
The [c]ourt finds that the relocation would not benefit the needs
of R.E., who would be best served by remaining in Blair County
with [Father] and attending the Bellwood school.
Trial Court Opinion, dated 7/19/17, at 3-4; 5.
As stated above, it is for the trial court to determine what factors are
most salient and critical in each particular case. M.J.M., supra.; see also
McMillen, supra. The trial court considered R.E’s maturity, intelligence,
and reasons for her preference to live with Father, and a review of the
record supports the trial court’s conclusions. See McMillen, supra. The
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trial court properly engaged in a dual custody and relocation analysis and
the record supports the trial court’s conclusions.7 Accordingly, we find no
error or abuse of discretion.
As to Mother’s claim that the Custody Act presumes siblings should
remain together and the trial court erred when it separated R.E. and B.E.,
Mother fails to cite any authority to support this contention, and, thus we
find this claim waived. See Commonwealth v. B.D.G., 959 A.2d 362, 371-
72 (Pa. Super. Ct. 2008) (“When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the issue is waived.”).
Even if Mother had properly developed the issue, it would warrant no
relief. The trial court concluded, “[o]rdinarily, the [c]ourt strives to keep
siblings together and has considered the presumption in this case. However,
under these unique facts and with the maturely expressed preference of
[R.E.] the [c]ourt believes it is best to permit the relocation of B.E. but deny
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7 We acknowledge that the trial court only addressed nine of the relocation
factors, neglecting to analyze factor (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.” 23 Pa.C.S. § 5337(h)(5). However, the trial
court did address a comparable issue when it analyzed custody factor (1),
“Which party is more likely to encourage and permit frequent and continuing
contact between the child and another party.” 23 Pa.C.S. § 5328(a)(1).
The trial court opined, “[t]hese parties do not have high conflict and both
encourage contact with the other.” Trial Court Opinion, dated 7/19/17 at 7.
Accordingly, we conclude that the trial court adequately considered the
issues raised by relocation factor (5) in its analysis of custody factor (1) and,
therefore, find no error.
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it as to R.E.” Trial Court Opinion, 7/19/17, at 6. The trial court has
discretion to determine what factors are most salient and critical in each
particular case and the record supports the trial court’s findings. See
M.J.M., supra. Accordingly, this issue is meritless.
In conclusion, the trial court issued an Opinion and Order that
addressed the custody and relocation factors mandated in the Child Custody
Act, primarily focusing on the best interest of R.E., and the record supports
the findings. Therefore, the Order denying Mother’s Petition for Relocation
concerning R.E. is not manifestly unreasonable nor a gross abuse of
discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2018
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