Reigle, K. v. Felty, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KERRY JOSEPH REIGLE, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DARLENE J. FELTY :
:
Appellee : No. 1252 MDA 2021
Appeal from the Order Entered September 13, 2021
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2015-20186
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: FEBRUARY 23, 2022
Appellant, Kerry Joseph Reigle, Jr. (“Father”) appeals from the order
entered in the Lebanon County Court of Common Pleas, denying his request
for relocation regarding the parties’ minor child, R.R. (“Child”). We affirm.
The relevant facts and procedural history of this case are as follows.
Darlene J. Felty (“Mother”) and Father share legal and physical custody of
Child. Child stays with Father on Mondays and Tuesdays, with Mother on
Wednesdays and Thursdays, and alternates weekends between the two
homes. Child has been attending school in the Northern Lebanon school
district his entire life. Both Father and Mother lived within the Northern
Lebanon school district until 2020. In May 2020, Father’s wife moved to
Elizabethtown to enroll her children in the Elizabethtown school district.
Consequently, Father lived separately from his wife and stepchildren for a
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period of time.
In June 2020, Father filed a notice of relocation so that Child could reside
in the Elizabethtown school district. Father later modified his relocation
request to the Palmyra school district because it was located between the
Northern Lebanon and Elizabethtown area. The trial court denied the request
finding that Father had not provided proper notice of the proposed relocation
to Palmyra to allow Mother the opportunity to object or agree. In September
2020, Father filed a second notice of relocation to transfer Child to the Palmyra
school district. The trial court denied Father’s request finding that it was not
in Child’s best interest to remove Child from the school district he was familiar
with in the middle of the school year.
Father subsequently moved to Elizabethtown to live with his wife and
stepchildren. Child remained in the Northern Lebanon school district and
Father drove Child approximately 45 minutes to school on the days that Child
stayed with him. On May 3, 2021, Father filed the instant notice of relocation
requesting that Child be relocated to the Elizabethtown school district.
The trial court held a hearing on the matter on September 9, 2021. At
Father’s request, the court appointed Frederick Long, Esquire as guardian ad
litem. Mr. Long interviewed Child, Mother, and Father and submitted a report
for the court’s consideration. Mr. Long recommended that the court grant
Father’s petition to relocate Child to the Elizabethtown school district. Even
though Father did not request a change in the custody schedule, Mr. Long
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further recommended that Father be granted primary physical custody of Child
during the school week. Mr. Long testified that his conclusion was based on
concerns about Mother’s work schedule which required her to work on
evenings when Child was in her custody. Mr. Long also raised concerns over
Child’s living conditions at Mother’s house because Child was often displaced
from his room for extended periods of time when Mother’s brother came to
visit. Further, Mr. Long noted that the Elizabethtown school district was rated
stronger than the Northern Lebanon school district in reading proficiency and
math proficiency on USnews.com. Upon further questioning, Mr. Long clarified
that he did not believe that the Northern Lebanon school district was
substandard but merely that the Elizabethtown school district was rated higher
in certain areas.
Father testified that Child struggled in school while in the Northern
Lebanon school district, particularly with reading comprehension. Child’s older
brother dropped out of school and Father expressed concern that Child would
follow the same path if he continued to struggle in his studies. Father found
the level of additional educational support offered at Child’s school in Northern
Lebanon to be inadequate. Because of this, Father hired a private tutor who
worked with Child until the Covid-19 pandemic began. Father did not seek
out a new tutor after this point. Father stated that the middle school in
Elizabethtown would offer Child more one-on-one educational support. Father
testified that Child has a bedroom to himself at his house in Elizabethtown.
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Father further indicated that he has a flexible work schedule which largely
allows him to be home when Child is not at school. Father also noted several
community programs in Elizabethtown that he believed Child would enjoy.
Mother testified that she works as a manager at Friendly’s. Mother
admitted that she was previously required to work some evening shifts on the
nights that Child stayed with her because of staff shortages. However, Mother
recently moved to a new location where she works 10:00 a.m. to 5:00 p.m.
and expected to shift to the 7:00 a.m. to 3:00 p.m. shift once the location
begins to serve breakfast on October 4, 2021. Mother reported that Child has
always had his own bedroom at her residence. Mother stated that when her
brother came to visit from Ohio, Child slept on an air mattress in Mother’s
room. Mother’s brother subsequently decided to permanently move into
Mother’s residence and has set up a bedroom in the basement of the house.
Since then, Child has regularly slept in his bedroom.
Mother testified that Child received individualized educational support
from the elementary school he attended in Northern Lebanon. Mother
indicated that she reached out to the middle school Child recently began
attending and a counselor at the school will meet with Child to assess his
educational needs and plan accordingly. Mother often works with Child to help
him complete homework. In addition, Child’s receives additional educational
support at Mother’s home from his cousin who is a year ahead of him in school.
Mother reports that Child has an extremely close relationship with this cousin,
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and they work very well together. Mother expressed concern that if the
schools in Elizabethtown are more advanced in their curriculum, Child might
fall further behind in his studies if he were to transfer there. Mother noted
that Child has many friends at school and participates in extracurricular
activities such as wrestling and flag football. Mother testified that Child is very
happy at his current school and is distressed at the thought of leaving.
Child, who was 11 years old at the time of the hearing, testified that he
would prefer to remain at his current school because he is familiar with the
teachers and curriculum. Child testified that he has many friends at his
current school but did not know many kids in Father’s neighborhood. Child
also expressed an interest in spending more time at Mother’s house because
he has more friends in the neighborhood, including his cousin with whom he
is very close. Child further stated that he receives more help with his
homework from Mother and his cousin than Father.
After considering all the evidence, the trial court denied Father’s petition
for relocation on September 13, 2021. Father timely filed a notice of appeal
and contemporaneous statement of errors complained of on appeal on
September 27, 2021.
Father raises the following issues for our review:
Did the trial court err as a matter of law and/or abuse its
discretion when it denied Father’s petition for relocation
based upon findings of fact unsupported by the record?
Did the trial court fail to adequately consider the opinion of
the court-appointed Guardian ad Litem?
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(Father’s Brief at 4).
In his two issues, Father argues that “the trial court improperly found
that Father’s relocation request was motivated in large part by being tired of
driving from Elizabethtown to Northern Lebanon.” (Id. at 12). Father
contends that Child struggled in his studies while attending school in the
Northern Lebanon school district and would fare better in the Elizabethtown
school district. Father maintains that he provided all transportation for
custody exchanges and offered to continue doing so if the relocation request
was granted to maintain the status quo and preserve Mother’s relationship
with Child. Father also claims that “the trial court failed to afford sufficient
weight to the opinion of the guardian ad litem….” (Id. at 13). Father
concludes that the court erred by disregarding the recommendations of the
guardian ad litem and drawing conclusions that were unsupported by the
record, and this Court must reverse the order denying his relocation request.
We disagree.
In reviewing a child custody order:
[O]ur 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. In addition, with regard to issues of
credibility and weight of the evidence, this Court must defer
to the trial judge who presided over the proceedings and
thus viewed 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
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trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation
omitted).
The Custody Act defines “relocation” as “[a] change in residence of the
child which significantly impairs the ability of a nonrelocating party to exercise
custodial rights.” 23 Pa.C.S.A. § 5322(a). Section 5337 governs a court’s
consideration of a request for relocation as follows:
§ 5337. Relocation
(a) Applicability.—This section applies to any
proposed relocation.
(b) General rule.—No relocation shall occur
unless:
(1) every individual who has custody rights to
the child consents to the proposed relocation; or
(2) the court approves the proposed relocation.
* * *
(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
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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.A. § 5337(a)–(b), (h). Moreover,
[T]he party proposing relocation…bears the burden of
proving relocation will serve the children’s best interests.
See 23 Pa.C.S.A. § 5337(i). Each party, however, has the
burden of establishing “the integrity of that party’s motives
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in either seeking the relocation or seeking to prevent the
relocation.” 23 Pa.C.S.A. 5337(i)(2).
S.J.S., supra at 551. In these proceedings:
[O]n 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.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal
citations omitted).
Instantly, the court considered all relocation factors, including the
motives of both parties in seeking and opposing relocation. (See Trial Court
Opinion, filed October 6, 2021, at 3-7). Specifically, the court found that
relocation would negatively impact Child’s educational and emotional
development. The court was not convinced that Child would perform better
academically in Elizabethtown than in Northern Lebanon. Both the Northern
Lebanon and Elizabethtown schools have similar systems in place to provide
additional educational support to Child in the areas where he struggles.
Further, Child is familiar and comfortable with the teaching style and
curriculum at Northern Lebanon since he has attended school in this district
for his entire life. Additionally, the court found that Child has many friends at
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his current school and these friendships would be negatively impacted if
relocation was granted.
The court also gave weight to Child’s preference, stating:
During trial the [C]hild calmly, respectfully, and intelligently
stated his preference in regards to relocation. Child was
clear in his desire to remain at Northern Lebanon, citing his
own comfort with a familiar location among friends,
teachers, and other school personnel. The Child had nothing
negative to say about Elizabethtown, simply that he is not
comfortable with an unknown school and town. The [c]ourt
feels that in this matter Child’s testimony is extremely
telling in how the [c]ourt should rule in this instance.
(Trial Court Opinion at 5).
Additionally, the court noted that Father has filed three relocation
petitions since 2020 requesting to transfer Child to two separate school
districts. As such, the court expressed concern that Father’s motivation to
relocate Child is based on the distance between Child’s school and Father’s
home rather than Child’s educational needs. The record supports the court’s
findings. As the court properly considered the factors articulated in Section
5337(h), we see no reason to disturb the court’s decision that Father failed to
meet his burden to prove that relocation would best serve Child’s interests.
See S.J.S., supra.Finally, Father’s assertion that the court did not give adequate weight
to the report of the guardian ad litem is without merit. The record
demonstrates the court carefully considered the report, where the court
stated: “Attorney Long, I read your report and I want to thank you because
you did a very thorough job.” (N.T. Relocation Hearing, 9/9/21, at 30). The
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court observed that two big factors which led to the guardian ad litem’s
recommendations were Mother’s work schedule and the availability of Child’s
bedroom at Mother’s house. Both of these concerns had been remedied by
Mother prior to the hearing. As such, the court ultimately decided to rule
differently than what was recommended in the report after taking into
consideration all the evidence presented. It is within the province of the trial
court to assign weight to the evidence presented and we decline Father’s
invitation to reweigh the evidence in his favor. See R.M.G., Jr., supra.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/23/2022
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