R.M.P. v. E.K. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.M.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
E. K. : No. 773 WDA 2021
Appeal from the Order Entered June 10, 2021
In the Court of Common Pleas of Blair County Civil Division at
No(s): 2021 GN 287
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 8, 2022
R.M.P. (“Mother”) appeals from the order dated June 7, 2021, and
entered on June 10, 2021, which denied her petition to relocate with the
parties’ minor child, P.K. (“Child”), from Blair County, Pennsylvania, to
Kingston, Tennessee, and awarded Mother and E.K. (“Father”) shared legal
custody and shared physical custody of Child, in accordance with a schedule
delineated in the order. After careful review, we vacate the order and
remand for further proceedings.
We glean the following relevant facts and procedural history from the
record. Mother and Father never married. They are the natural parents of
Child, born in November of 2018. The parties resided together with Child in
Hollidaysburg, Pennsylvania, until approximately January of 2020, when the
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* Retired Senior Judge assigned to the Superior Court.
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parties separated and Mother moved in with her family in Duncansville,
Pennsylvania. After the parties’ separation, Mother and Father began
following an informal 3/4/4/3 rotating custody schedule, which allowed each
party equal time with Child.
On February 4, 2021, Mother filed a complaint seeking sole legal
custody and primary physical custody of Child, followed by a relocation
petition on March 5, 2021, seeking permission to relocate with Child to
Kingston, Tennessee. Father opposes Mother’s proposed relocation to
Tennessee with Child. A custody relocation hearing was held on April 28,
2021, during which both parties testified.
Following the hearing, the trial court issued an opinion, in which it set
forth the following factual findings:
MOTHER
Mother is twenty-three years old and resides in Duncansville,
Pennsylvania with the subject minor [C]hild along with Mother’s
father and Mother’s siblings. Mother is employed full[-]time as
an assistant manager at Aeropostale retail store. [Child] attends
the YMCA Early Learning Center when Mother is working.
Although Mother has immediate family in Blair County, Mother is
seeking to relocate with [Child] to Kingston, Tennessee, where
she also has extended family. Mother testified that her father,
along with her siblings[,] are also planning on relocating to
Tennessee. Mother indicated she believes she can obtain
employment at an Aeropostale store in Tennessee. Mother
indicates she has taken her daughter to Tennessee several times
and their lives will improve with the relocation. If the relocation
is granted, Mother suggests Father could receive periods of
custody with [Child], such as one long weekend each month or
in weekly increments over the summer.
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FATHER
Father is twenty-five years old and resides in Hollidaysburg,
Pennsylvania, by himself and [with] his daughter when he has
his periods of custody. Father works full[-]time as a mechanic
for Stuckey Automotive, working 7:00 [a.m.] to 4:00 [p.m.]
Father testified that he was first made aware that Mother was
seeking to relocate to Tennessee with the parties’ daughter in
February 2021, after he received the relocation notice in the
mail. Father was surprised by Mother’s petition to relocate[] and
was under the impression that the parties would continue to
share an equal custody rotation with … [C]hild. Father believes
that his relationship with his daughter would diminish if Mother
was granted permission to relocate with … [C]hild to Tennessee.
Father states that all of his family lives in Blair County, and
[C]hild sees these family members on a regular basis. Father
further states that he is financially stable in Blair County[] and[,]
while Mother intends to relocate, her employment in Tennessee
is speculative.
Trial Court Opinion (“TCO I”), 6/10/21, at 2-4 (unnecessary capitalization
and citations to record omitted).
In conjunction with its opinion, the trial court issued an order awarding
shared legal custody and shared physical custody of Child and denying
Mother’s petition for relocation. See Trial Court Order (“Custody Order”),
6/10/21, at 2. The trial court directed that, as long as Mother chooses to
remain in Blair County, Pennsylvania, the parties shall maintain an equal,
physical custody schedule. However, if Mother chooses to relocate without
Child, she shall immediately notify the court so an appropriate schedule can
be formulated. Id.
On July 2, 2021, Mother filed a timely notice of appeal, along with a
timely concise statement of errors complained of on appeal, pursuant to
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Pa.R.A.P. 1925(a)(2). Herein, Mother presents the following issues for our
review:
I. Did the trial court err and/or abuse its discretion by
entering an order denying Mother’s petition for relocation
and establishing a Custody Order without delineating and
assessing the factors to consider when awarding custody
pursuant to 23 Pa.C.S. § 5328(a)?
II. Did the trial court err and/or abuse its discretion by not
properly applying the custody relocation factors set forth in
23 Pa.C.S. § 5337(h)?
III. Did the trial court err and/or abuse its discretion by
entering an order that is contrary to the best interests of …
[C]hild when it denied Mother’s petition for relocation?
IV. Did the trial court err and/or abuse its discretion by not
properly applying the relocation factor set forth in 23
Pa.C.S. § 5337(h)(1): “The nature, quality, extent of
involvement and duration of the child’s relationship with
the party proposing to relocate and with the non-relocating
party, siblings and other significant persons in the child’s
life[?]”
V. Did the trial court err and/or abuse its discretion by not
properly applying the relocation factor set forth in 23
Pa.C.S. § 5337(h)(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[?]”
VI. Did the trial court err and/or abuse its discretion by not
properly applying the relocation factor set forth in 23
Pa.C.S. § 5337(h)(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[?]”
VII. Did the trial court err and/or abuse its discretion by
improperly applying the relocation factor set forth in 23
Pa.C.S. § 5337(h)(8): “The reasons and motivation of each
party for seeking or opposing the relocation[?]”
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VIII. Did the trial court err and/or abuse its discretion in finding
that Mother’s employment in Tennessee is speculative?
IX. Did the trial court err and/or abuse its discretion in finding
that Father was first made aware that Mother was seeking
to relocate to Tennessee with the parties’ daughter in
February 2021, when he received the relocation notice in
the mail and by finding that Father was surprised by
Mother’s petition to relocate[?]
Mother’s Brief at 10-12 (unnecessary capitalization omitted).
We review Mother’s claims under the following scope and standard of
review:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it…. However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination…. Thus, an appellate court is empowered to
determine whether the trial court’s incontrovertible factual
findings support its factual conclusions, but it may not
interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings[]
and[,] thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
(quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
2001)). Moreover,
on issues of credibility and weight of the evidence, we
defer to the findings of the trial court who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
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R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.
Super. 2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (some internal brackets
omitted).
When awarding any form of custody, a court must conduct a thorough
analysis of the best interests of the child based on the custody factors set
forth in section 5328(a) of the Child Custody Act (23 Pa.C.S. §§ 5321-
5340).1 See J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating
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1 Those custody factors are:
(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.
(Footnote Continued Next Page)
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that a court’s failure to properly consider all the section 5328(a) factors in
arriving at a custody determination constitutes an error as a matter of law).
Additionally, section 5337(h) delineates the factors which a court is
required to consider when deciding whether to grant a proposed relocation.2
(Footnote Continued) _______________________
(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).
2 The statutorily-mandated relocation factors are:
(Footnote Continued Next Page)
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“The party proposing the relocation has the burden of establishing that the
relocation will serve the best interest of the child” based on the relocation
(Footnote Continued) _______________________
(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.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S. § 5337(h).
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factors, and “[e]ach party has the burden of establishing the integrity of that
party’s motives in either seeking relocation or seeking to prevent the
relocation.” 23 Pa.C.S. § 5337(h)(i)(1)-(2).
When both custody and relocation are at issue, the court must
consider both sets of factors to determine how the child’s best interests may
be served. See A.V., 87 A.3d at 823-24 (citing 23 Pa.C.S. §§ 5328(a);
5337(h)). The 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. § 5323(d).
Additionally, section 5323(d) requires the trial court to set forth its
mandatory assessment of the custody factors “prior to the deadline by which
a litigant must file a notice of appeal.” Id. (quoting C.B. v. J.B., 65 A.3d
946, 955 (Pa. Super. 2013)). See also A.M.S. v. M.R.C., 70 A.3d 830, 835
(Pa. Super. 2013) (emphasizing that our holding in C.B.—that section
5323(d) requires the trial court to delineate its reasoning at or near the time
of its decision—extends to cases that involve both custody and relocation
pursuant to section 5337). While there is no required level of detail the trial
court must set forth in support of its assessment, the explanation must
address its consideration of all relevant factors and the custody decision
must be based on those considerations. A.V., 87 A.3d at 823 (citing M.J.M.
v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013)).
Instantly, Mother claims that the trial court erred in making a custody
decision without first assessing the mandatory section 5328(a) custody
factors. Mother’s Brief at 10. In response, the trial court acknowledged that
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its June 10, 2021 opinion should have separately addressed its findings
regarding the relevant custody factors and, thus, it set forth its section
5328(a) analysis in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion
(“TCO II”), 8/2/21, at 2-6. The trial court further notes that its
“reasoning/findings” regarding the custody factors “are very similar to” its
findings regarding the relocation factors, as outlined in its original opinion.
Id. at 2-3.3
Nevertheless, we have previously held that a trial court may not cure
its failure to set forth its reasoning related to the required custody and/or
relocation factors at or near the time of entering its decision by addressing
the factors in an opinion pursuant to Pa.R.A.P. 1925(a). See A.M.S., 70
A.3d at 835 (holding that the trial court erred in not delineating its custody
and relocation factors until the time of appeal). As we explained in A.M.S.,
allowing the trial court to delay placing its reasoning on the record would be
contrary to the plain language of section 5323(d) and could result in a
litigant being forced to file a notice of appeal and concise statement without
knowing the trial court’s rationale for its order. Id. at 833-34 (citing C.B.,
65 A.3d at 952-53) (“To hold that the trial court may withhold its reasoning
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3While there is some overlap between the custody and relocation factors,
we note that not every factor is identical. See 23 Pa.C.S. §§ 5328(a);
5337(h).
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unless and until it issues a Rule 1925(a) opinion would be to flout the
legislative will.”)).
Instantly, we observe that the trial judge did not issue a decision from
the bench, nor did he address his assessment regarding any of the relevant
custody and/or relocation factors at the time of the hearing. See N.T.
Hearing, 4/28/21. Rather, the trial court issued its Custody Order on June
10, 2021, accompanied by an opinion, in which it explained its reasoning for
its custody decision and its denial of Mother’s petition to relocate.
Significantly, the trial court’s opinion contained an analysis of the section
5337(h) relocation factors; however, it was devoid of any analysis regarding
the required section 5328(a) custody factors. See TCO I at 4-6. Although
we recognize that the trial court did eventually engage in an analysis of the
custody factors in its Rule 1925(a) opinion, such opinion was filed after the
deadline by which Mother could file her notice of appeal.
We conclude that the trial court committed an error of law by failing to
address the custody factors under section 5328(a) in its initial opinion issued
in conjunction with the Custody Order. As noted above, section 5323(d)
requires the trial court to set forth its mandatory assessment of the custody
factors prior to the deadline by which a litigant must file a notice of appeal.
C.B., 65 A.3d at 955. Thus, we are compelled to vacate the order and
remand this matter for further proceedings. The trial court must consider
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the custody factors in conjunction with the relocation factors and issue a
new order addressing the parties’ custody and relocation requests.4
Accordingly, we vacate the June 10, 2021 order awarding Mother and
Father shared legal custody and shared physical custody of Child and
denying Mother’s petition to relocate with Child, and we remand this matter
for further proceedings consistent with this memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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4 Due to our disposition of Mother’s first issue, we need not address her
remaining claims.
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