D.K. v. S.P.K. ( 2014 )

J-A23015-14
2014 PA Super 218D.K., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
S.P.K., :
:
Appellant : No. 279 WDA 2014
Appeal from the Order January 16, 2014,
Court of Common Pleas, Allegheny County,
Family Court at No. FD 11-08220-006
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
OPINION BY DONOHUE, J.: FILED OCTOBER 02, 2014
S.P.K. (“Father”) appeals from the order entered on January 16, 2014
by the Court of Common Pleas of Allegheny County, Family Division,
granting D.K. (“Mother”) primary physical custody of the parties’ three
children, J.K., S.K., and C.K. (collectively “the children”) – ages nine, seven,
and five respectively. After careful review of the record and applicable
statutory and case law, we affirm. In doing so, we conclude, inter alia, that
in a case such as this, which involves a custody determination where neither
Mother nor Father is relocating and only the children stand to move to a
significantly distant location, the relocation provisions of the Child Custody
Act, 23 Pa.C.S.A. § 5337, are not per se triggered and the notice
requirement of section 5337(c) does not apply. However, in such cases, the
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trial court shall consider the relevant factors set forth in section 5337(h)
insofar as they impact the final determination of the best interests of the
children.
The relevant facts and procedural history in this case are as follows.
Mother and Father married on October 19, 2002 and are the biological
parents of the children. Following their marriage, Mother and Father
established a residence in Leesburg, Virginia. Around 2008, Mother began to
abuse alcohol. In December 2008, Mother went to the hospital where she
discovered that she was pregnant with Mother and Father’s third child, C.K.,
and that she had a high blood alcohol level in her body. Though Mother did
not drink during her pregnancy with C.K., shortly after giving birth, Mother
began drinking again regularly.
In 2009, as Mother’s drinking problem continued to escalate, Father
lost his job. Though Father was unemployed at this time, Mother claims that
Father was rarely home. In March 2010, Mother entered rehab, which she
was unable to complete. Mother claims that she was unable to complete
rehab because her insurance only covered half of her stay and because
Father and the kids needed her at home. Father claims that Mother simply
quit. Mother checked into rehab again in July 2010.
In August 2010, Mother passed out at the parties’ marital home from
drinking too much alcohol and hit her head on a piece of furniture. The
injury created a large amount of blood and paramedics transported Mother
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to the hospital because of the injury. Both J.K. and S.K. report that this
incident is one of their earliest memories.
In late September 2010, Mother reentered rehab and around the same
time, Father took the children to his parents’ home in Pittsburgh. Mother
was under the impression that Father’s and the children’s stay in Pittsburgh
was going to be temporary; however, Father stated that he had to make the
move permanent because he needed help caring for the children and Mother
was unable to do so. After moving to Pittsburgh, Father struggled to find
employment, but testified that he was working fulltime by February 2011.
For the next several months, Mother continued to struggle with her
alcoholism. In January 2011, Mother and Father signed an agreement that
gave full primary and legal custody of the children to Father and granted
Mother limited supervised custody. Mother claims that she signed the
agreement because Father would not let her see the children. Father, on the
other hand, claims that Mother made little to no effort to see the children
from September 2010 to January 2011 and that even after she signed the
agreement, she infrequently exercised her custodial rights. In September
2011, Mother moved in with her parents in North Carolina. Mother reports
that she has been completely sober since November 16, 2011.
On January 24, 2012, Mother filed a complaint for custody in which
she sought primary custody of the children. On March 19, 2012, the parties
entered into a consent order by which Mother received supervised (by her
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parents) custody of the children every other weekend and at certain times
during the summer. Since January 2012, Mother claims that she has never
missed a scheduled period of custody. Throughout this time, Father has
made it difficult, in a variety of ways, for Mother to exercise her custodial
rights with the children.
Since Mother filed her complaint for custody, the following also
transpired. In September 2012, police arrested Father for driving under the
influence (“DUI”) after discovering him urinating on the side of the highway.
In December 2012, Father became engaged to F.S., who he had been dating
since July 2011.
The trial court held a trial to determine the custody of the children on
August 1 and 13, 2013 and October 3 and 30, 2013. Additionally, the trial
court held in camera interviews with the parties’ two oldest children, J.K.
and S.K., on October 28, 2013. On January 16, 2014, the trial court
awarded primary physical custody of the children to Mother. On February
18, 2014, Father filed a timely notice of appeal.1 Father filed
contemporaneously with his notice of appeal his concise statement of
1
We note that although Father filed his notice of appeal 33 days after the
entry of the order from which he appeals in this case, it is still a timely
notice of appeal because the thirtieth day of the 30-day appeal period fell on
a Saturday, and the following Monday, February 17, 2014, was President’s
Day. See Pa.R.C.P. 106(b) (“Whenever the last day of any such period shall
fall on Saturday or Sunday, or on any day made a legal holiday by the laws
of this Commonwealth or of the United States, such day shall be omitted
from the computation.”).
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matters complained of on appeal pursuant to Rule 1925(a)(2) and (b) of the
Pennsylvania Rules of Appellate Procedure. On appeal, Father raises the
following issues for our review:
1. THE TRIAL COURT ERRED BY FAILING TO
DISMISS [MOTHER]’S CLAIM FOR PRIMARY
PHYSICAL CUSTODY, AND IGNORING THE
STATUTORY REQUIREMENTS REGARDING
RELOCATION (INCLUDING MOTHER’S FAILURE TO
FILE A TIMELY AFFIDAVIT), AND BY, OVER FATHER’S
COUNSEL’S CONTINUAL OBJECTIONS, PERMITTING
MOTHER TO KEEP REOPENING HER CASE EVEN
AFTER THE COURT OBSERVED, ON THE RECORD,
THAT MOTHER HAD NOT MET HER BURDEN TO
SHOW RELOCATION WAS IN THE CHILDREN’S BEST
INTEREST.
2. THE TRIAL COURT ERRED IN DETERMINING THAT
MOTHER MET HER BURDEN TO RELOCATE [THREE]
YOUNG CHILDREN 500 MILES AWAY BECAUSE THE
CHILDREN WILL HAVE BEEN IN ALLEGHENY COUNTY
FOR [FOUR] YEARS BY THE TIME OF THEIR MOVE,
BEEN IN NEARLY THE SOLE CARE OF FATHER, HAD
FAMILY AND EXTENDED FAMILY HERE, WERE DOING
WELL IN AND WERE ENTRENCHED IN SCHOOL,
CHURCH AND COMMUNITY HERE, AND HAD
ACTIVITIES AND FRIENDS HERE.
3. THE TRIAL COURT ERRED IN DETERMINING THAT
MOTHER MET HER BURDEN TO RELOCATE [THREE]
YOUNG CHILDREN 500 MILES AWAY BECAUSE THE
CHILDREN HAVE LITTLE FAMILY AND FEW OR NO
CONTACTS IN NORTH CAROLINA AND MOTHER
FAILED TO PRESENT NEARLY ANY EVIDENCE
REGARDING MEETING THE CHILDREN’S NEEDS IN
NORTH CAROLINA, HAD NOT SPOKEN TO SCHOOL
OFFICIALS OR COACHES, HAD NOT CHOSEN A
SCHOOL, AND ONLY DID INVESTIGATION AFTER
THE THIRD DAY OF TRIAL AND ONLY THEN AFTER
THE COURT REPEATEDLY REMINDED MOTHER OF
HER OBLIGATION TO DO SO.
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4. BASED ON THE CHILDREN’S WELL ESTABLISHED
CONTACTS, CHURCH, SCHOOL, ACTIVITIES AND
FAMILY IN ALLEGHENY COUNTY AND MOTHER’S
LACK OF INVESTIGATION/PREPARATION FOR ANY
MOVE, THE TRIAL COURT FAILED TO ACT IN THE
CHILDREN'S BEST INTEREST BY PERMITTING THE
MOVE AND CHANGING PRIMARY CUSTODY.
5. THE TRIAL COURT ERRED BY, WHEN
CONSIDERING THE BEST INTEREST OF THE
CHILDREN, NOT GIVING APPROPRIATE WEIGHT TO
MOTHER’S EXTREME ALCOHOLISM, THE CHANCE OF
RECIDIVISM OF HER BEHAVIOR, ESPECIALLY GIVEN
MOTHER’S FAILURE TO ENTER EVIDENCE
REGARDING HER ABILITY TO REMAIN SOBER WHILE
LIVING INDEPENDENTLY OR WITH THE STRESSORS
OF RAISING THREE YOUNG CHILDREN, AND HER
UTTER FAILURE TO RECOGNIZE THE SAME AS A
PROBLEM, INSTEAD BLAMING FATHER FOR HER
ALCOHOLISM.
Father’s Brief at 12-13.2
For his first issue on appeal, Father claims that the trial court erred by
failing to dismiss Mother’s claim for primary physical custody. Id. at 47-50.
Father’s claim is based on the application of 23 Pa.C.S.A. § 5337, the
relocation provision of the Child Custody Act, 23 Pa.C.S.A. § 5321, et seq.
Father argues that Mother failed to comply with the relocation procedure set
forth in 20 Pa.C.S.A. § 5337(c) because she failed to provide him with timely
notice of her intention to relocate the children or the information section
5337(c)(3) requires the relocating party to provide to the nonrelocating
2
We note that we have reordered the issues that Father raises on appeal
for ease of review.
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party. Father’s Brief at 47-48. Father further asserts that he did not receive
the benefit of the provisions of section 5337(j)3, which addresses how a
court may consider a party’s failure to provide reasonable notice. Id. at 49-
50. Thus, Father’s claim requires us to determine whether this case
constitutes a relocation that per se triggers section 5337 of the Child
Custody Act.
Issues of statutory interpretation are questions of law where “the
appellate standard of review is de novo and the appellate scope of review is
3
Section 5337(j) provides the following:
(j) Failure to provide reasonable notice.--The
court may consider a failure to provide reasonable
notice of a proposed relocation as:
(1) a factor in making a determination
regarding the relocation;
(2) a factor in determining whether custody
rights should be modified;
(3) a basis for ordering the return of the child
to the nonrelocating party if the relocation has
occurred without reasonable notice;
(4) sufficient cause to order the party
proposing the relocation to pay reasonable
expenses and counsel fees incurred by the
party objecting to the relocation; and
(5) a ground for contempt and the imposition
of sanctions against the party proposing the
relocation.
23 Pa.C.S.A. § 5337(j).
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plenary.” C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (quoting In re
Adoption of J.A.S., 939 A.2d 403, 405 (Pa. Super. 2007)), appeal denied,
70 A.3d 808 (Pa. 2013). Regarding statutory interpretation, our Court has
long recognized the following principles of statutory construction set forth in
the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq.:
The goal in interpreting any statute is to ascertain
and effectuate the intention of the General
Assembly. Our Supreme Court has stated that the
plain language of a statute is in general the best
indication of the legislative intent that gave rise to
the statute. When the language is clear, explicit, and
free from any ambiguity, we discern intent from the
language alone, and not from the arguments based
on legislative history or ‘spirit’ of the statute. We
must construe words and phrases in the statute
according to their common and approved usage. We
also must construe a statute in such a way as to give
effect to all its provisions, if possible, thereby
avoiding the need to label any provision as mere
surplusage.
Under Section 1921(c), the court resorts to
considerations of ‘purpose’ and ‘object’ of the
legislature when the words of a statute are not
explicit... . Finally, it is presumed that the legislature
did not intend an absurd or unreasonable result. In
this regard, we ... are permitted to examine the
practical consequences of a particular interpretation.
C.B., 65 A.3d at 951. Moreover, our Supreme Court has stated, “it is
axiomatic that in determining legislative intent, all sections of a statute must
be read together and in conjunction with each other, and construed with
reference to the entire statute.” E.D.B. ex rel. D.B. v. Clair, 987 A.2d 681,
684 (Pa. 2009) (citation omitted). In order to determine whether the instant
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matter is a relocation case that per se triggers section 5337, we begin by
examining the applicability of section 5337(c) to this case, the provision with
which Father complains Mother did not comply.
The legislature enacted section 5337 specifically to deal with relocation
matters. See 23 Pa.C.S.A. § 5337(a). In the definitions section of Title 23
dealing with child custody, relocation is defined as “[a] change in a residence
of the child which significantly impairs the ability of a nonrelocating party to
exercise custodial rights.” 23 Pa.C.S.A. § 5322. Under this definition, while
relocation is in part defined by a change in residence of the child, it is
evident that a relocation as contemplated in the statute requires a negative
custodial impact on a “nonrelocating party.” Thus, the definition of
relocation anticipates that the other party to the custodial relationship will be
relocating since the phrase “nonrelocating party” has no meaning unless
another party is relocating. Based solely on the statutory definition, we
could conclude that the relocation provisions of the Custody Act set forth in
section 5337 do not apply where neither party is relocating.
Further analysis of the relocation statutory requirements buttress this
conclusion. Section 5337(c), which addresses the notice the party proposing
relocation must provide to the nonrelocating party, states the following:
(1) The party proposing the relocation shall notify
every other individual who has custody rights to the
child.
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(2) Notice, sent by certified mail, return receipt
requested, shall be given no later than:
(i) the 60th day before the date of the
proposed relocation; or
(ii) the tenth day after the date that the
individual knows of the relocation, if:
(A) the individual did not know and could
not reasonably have known of the
relocation in sufficient time to comply
with the 60-day notice; and
(B) it is not reasonably possible to delay
the date of relocation so as to comply
with the 60-day notice.
(3) Except as provided by section 5336 (relating to
access to records and information), the following
information, if available, must be included with the
notice of the proposed relocation:
(i) The address of the intended new residence.
(ii) The mailing address, if not the same as the
address of the intended new residence.
(iii) Names and ages of the individuals in the
new residence, including individuals who intend
to live in the new residence.
(iv) The home telephone number of the
intended new residence, if available.
(v) The name of the new school district and
school.
(vi) The date of the proposed relocation.
(vii) The reasons for the proposed relocation.
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(viii) A proposal for a revised custody
schedule.
(ix) Any other information which the party
proposing the relocation deems appropriate.
(x) A counter-affidavit as provided under
subsection (d)(1) which can be used to object
to the proposed relocation and the modification
of a custody order.
(xi) A warning to the nonrelocating party that
if the nonrelocating party does not file with the
court an objection to the proposed relocation
within 30 days after receipt of the notice, that
party shall be foreclosed from objecting to the
relocation.
(4) If any of the information set forth in paragraph
(3) is not known when the notice is sent but is later
made known to the party proposing the relocation,
then that party shall promptly inform every
individual who received notice under this subsection.
23 Pa.C.S.A. § 5337(c).
Based on the information that section 5337(c)(3) requires the party
proposing relocation to provide to the nonrelocating party, it is evident that
the legislature did not intend for section 5337(c) to apply in a custody case,
where both parents have lived in their current residences for some time, and
neither parent is relocating. Rather, section 5337 is designed to give notice
to a party with custody rights that the other custodial party intends to
change his or her geographical location and a modification of a custody
arrangement will be necessary to allow the relocating party to continue to
exercise custody rights. Section 5337(c) obviously envisions a change in the
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relocating party’s geographical location that will impact custody and arms
the nonrelocating party with the information necessary to assess the
proposed change of circumstances. In a case such as this, where both
parents remain in their established residences, there are no changed
circumstances to assess. The challenge is solely to a change in the custody
arrangement and not a party’s relocation. Moreover, in a custody case
where both parties continue to live in their current residences, the
information required under section 5337(c) is either known or will be
revealed as a matter of course in either the complaint for custody or the
custody proceedings.
The requirements set forth in 23 Pa.C.S.A. § 5337(d) (Objection to
Proposed Relocation) further exemplify the relocation provisions’ intent to
address situations where a party is relocating to a new geographical place.
This section plainly differentiates between objections to the party’s
relocation and objections to modification of custody arrangements. Section
5337(d)(1) provides:
(1) A party entitled to receive notice may file with
the court an objection to the proposed relocation and
seek a temporary or permanent order to prevent the
relocation. The nonrelocating party shall have
the opportunity to indicate whether he objects
to relocation or not and whether he objects to
modification of the custody order or not. If the
party objects to either relocation or modification of
the custody order, a hearing shall be held as
provided in subsection (g)(1). The objection shall be
made by completing and returning to the court a
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counter-affidavit, which shall be verified subject to
penalties under 18 Pa.C.S. § 4904 (relating to
unsworn falsification to authorities)[.]
23 Pa.C.S.A § 5337(d)(1) (emphasis added). While it is clear that every
request for relocation pursuant to the statute implicates the custody of the
child, the relocation provisions are not triggered unless one of the parties is
relocating.
Other provisions of section 5337 likewise establish that it is a party’s
relocation that necessitates the inquiry. For example, section 5337(h)(6)
requires a trial court, in determining whether to allow a proposed relocation
to consider “[w]hether the relocation will enhance the general quality of life
for the party seeking the relocation[.]” 23 Pa.C.S.A. § 5337(h)(6).
Likewise, section 5337(l) provides that “[i]f a party relocates with the child
prior to a full expedited hearing, the court shall not confer any presumption
in favor of the relocation.” 23 Pa.C.S.A. § 5337(l).
Like the definitional reference in section 5322, several provisions of
section 5337 also reference a nonrelocating party. See 23 Pa.C.S.A.
§ 5337(d), (f), (h), (j). Because the definition of relocation and several
provisions of section 5337 explicitly refer to a “nonrelocating party,” by
implication, section 5337 must anticipate that a party is relocating. Based
upon the foregoing statutory analysis, we conclude that where neither
parent is relocating, and only the custodial rights of the parties are at issue,
section 5337 of the Child Custody Act is not per se triggered. In the case
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before us, because Mother was not relocating, she therefore was not
required to comply with the notice provisions of section 5337(c).
Although we have determined that this case does not per se trigger
section 5337, we do not hold that a trial court cannot or should not consider
the factors of section 5337(h) in a case where a request for modification of
the custody order involves the change of residence of the child to a
significantly distant location. The enactment of sections 5328(a) and
5337(h) and the development of the case law preceding the two provisions
supports this notion.
“With any child custody case, the paramount concern is the best
interests of the child.” J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super.
2011). The legislature enacted section 5328(a) of the Child Custody Act in
order to delineate the “factors the trial court must consider when awarding
any form of custody.” Id. at 651 (citation omitted). Section 5328(a) sets
forth a list of 16 factors that trial courts must consider “in a best interests of
the child analysis in making any custody determination.” E.D. v. M.P.,
33 A.3d 73, 79-80 (Pa. Super. 2011) (citing 23 Pa.C.S.A. § 5328(a))
(footnote omitted). The 16 factors listed in section 5328(a) that trial courts
must consider when determining a child’s best interest include:
(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.
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(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
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.
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(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.
42 Pa.C.S.A. § 5328(a).
Section 5337(h) requires that the trial court consider the following
factors when a party is relocating:
(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.
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(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(h).
In a case predating the enactment of sections 5328(a) and 5337(h),
our Court addressed a factual scenario similar to the instant matter. In
Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998), the mother, who was
living in Florida, sought custody of her child, who was living with the father
in Pennsylvania. Id. at 1272-73. It was the mother’s contention that “a
proper ‘best interests of the child’ analysis in a case where the petitioning
parent seeks to relocate the child to another jurisdiction includes
consideration of the factors outlined in Gruber.” Id. at 1274. Gruber v.
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Gruber, 583 A.2d 434 (Pa. Super. 1990), which also predated the
enactment of section 5337(h), set forth a three-factor test for trial courts to
use “[i]n order to decide whether a custodial parent and children shall be
permitted to relocate at a geographical distance from a non-custodial
parent[.]” Id. at 439. The Gruber test required trial courts to consider the
following factors:
First, the court must assess the potential advantages
of the proposed move and the likelihood that the
move would substantially improve the quality of life
for the custodial parent and the children and is not
the result of a momentary whim on the part of the
custodial parent.
* * *
Next, the court must establish the integrity of the
motives of both the custodial and non-custodial
parent in either seeking the move or seeking to
prevent it.
* * *
Finally, the court must consider the availability of
realistic, substitute visitation arrangements which
will adequately foster an ongoing relationship
between the child and the non-custodial parent.
Id. In Clapper, we pointed out that the Gruber factors were typically only
“applied in cases where the ‘custodial’ parent wishes to relocate with the
child, and not where the non-custodial parent seeks custody of the child and
requests the child’s relocation to a different state.” Clapper, 716 A.2d at
1274. Nevertheless, this Court held that the “Gruber factors should be
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considered in appropriate cases, as part of the overall best interests
analysis, when a parent wishes to relocate a child to another jurisdiction.”
Id. Our Court reasoned:
[E]ven in custody cases involving the relocation of
one or both parents, the ultimate objective in
resolving the custody matter remains the best
interests of the child. The determination of a child’s
best interests involves the consideration of all
relevant factors that legitimately affect the child’s
physical, intellectual, moral and spiritual well-being.
It follows then that the factors outlined in Gruber, if
deemed relevant and likely to affect the child’s
physical, intellectual, moral and spiritual well-being,
should also be applied and considered in any custody
case involving the relocation of either the custodial
or non-custodial parent.
Id. (internal citations omitted; emphasis in original). Thus, our Court
determined that trial courts should apply the relevant Gruber factors in a
case where neither parent was relocating, and only the child stood to move
to a new geographical location. See id.; see also Reefer v. Reefer,
791 A.2d 372, 377 (Pa. Super. 2002) (applying the Gruber factors in a
custody case where neither parent relocated, but the child stood to move a
geographical distance).
Upon examining the custody factors of section 5328(a) and the
relocation factors of section 5337(h), we reach a conclusion in this case
consistent with Clapper. In a custody case where neither parent is
relocating, but the children stand to move a significant distance, trial courts
should still consider the relevant factors of section 5337(h) in their section
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5328(a) best interests analysis. Several of the factors of section 5337(h)
are encompassed, either directly or implicitly, by the custody factors of
section 5328(a). Trial courts should also consider those relevant factors of
section 5337(h) that are not otherwise encompassed directly or implicitly by
the section 5328(a) factors pursuant to the catchall provision of section
5328(a)(16).
For example, the language in section 5337(h)(4), which requires a trial
court to consider the child’s preference, is nearly identical to the language in
section 5328(a)(7). Compare 23 Pa.C.S.A. § 5337(h)(4), with
23 Pa.C.S.A. § 5328(a)(7) (requiring the trial court to consider “[t]he well-
reasoned preference of the child, based on the child’s maturity and
judgment”). Likewise, section 5337(h)(9), which requires the trial court to
consider “[t]he present and past abuse committed by a party or member of
the party’s household” is closely related to section 5328(a)(2). Compare
23 Pa.C.S.A. § 5337(h)(9), with 23 Pa.C.S.A. § 5328(a)(2) (mandating
consideration of “[t]he present and past abuse committed by a party or
member of the party’s household”). Additionally, section 5337(h)(5), which
requires the trial court to consider “[w]hether there is an established pattern
of conduct of either party to promote or thwart the relationship of the child
and the other party,” is similar to section 5328(a)(8). Compare
23 Pa.C.S.A. § 5337(h)(5), with 23 Pa.C.S.A. § 5328(a)(8) (requiring the
trial court to consider “the attempts of a parent to turn the child against the
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other parent”). Further, section 5337(h)(1), which requires the trial court to
consider “[t]he 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,”
encompasses subsections (3), (5), and (6) of section 5328(a), which require
consideration of the parental duties performed by each party, 23 Pa.C.S.A.
§ 5328(a)(3), the availability of extended family, 23 Pa.C.S.A. § 5328(a)(5),
and sibling relationships, 23 Pa.C.S.A. § 5328(a)(6). Compare 23 Pa.C.S.A.
§ 5337(h)(1), with Pa.C.S.A. § 5328(a)(3), (5), (6).
Additionally, in any custody determination where neither parent is
moving, but the children stand to move to a significantly distant location, the
trial court would still need to consider the age, developmental stage, needs
of the child and the likely impact the child’s change of residence will have on
the child’s physical, educational and emotional development (23 Pa.C.S.A.
§ 5337(h)(2)), the feasibility of preserving the relationship between the
other parent and the child (23 Pa.C.S.A. § 5337(h)(3)), and whether the
change in the child’s residence will enhance the general quality of life for the
child (23 Pa.C.S.A. § 5337(h)(7)). Even though these three factors are not
directly or implicitly encompassed in section 5328(a), they are clearly
relevant to the decision of what is in the child’s best interest when
contemplating a move of significant distance to the other parent’s home, and
are therefore necessarily part of the trial court’s analysis pursuant to section
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5328(a)(16), which requires a trial court to consider “any other relevant
factor” in making a custody determination. 23 Pa.C.S.A. § 5328(a)(16).
In summary, based on the foregoing statutory authority and case law,
we hold that a custody case where neither parent is seeking to relocate and
only the children would be moving to a significantly distant location if
custody shifted from one parent to another does not per se trigger section
5337 of the Child Custody Act. Thus, the notice requirement of section
5337(c) does not apply in such cases. Trial courts should still consider the
relevant factors of section 5337(h) in their section 5328(a) best interest
analysis. As we have explained, several of the relevant factors of section
5337(h) are encompassed, directly or implicitly, by the custody factors listed
in section 5328(a). Any relevant section 5337(h) factor that is not expressly
encompassed in section 5328(a) should be considered by the trial court
under the catchall provision of section 5328(a)(16).
Accordingly, in this case,4 Mother was not required to provide Father
with notice of relocation pursuant to section 5337(c), Father was not entitled
4
The case before us is somewhat factually similar to B.K.M. v. J.A.M.,
50 A.3d 168 (Pa. Super. 2012). In that case, when the father initiated
custody proceedings in the United States, the mother was living in Sweden
with their three children. Id. at 170-71. Although the father was the party
seeking to bring the three children to the United States, the mother
petitioned for relocation. Id. at 171. The trial court in that case pointed out
that the mother never formally filed a petition for relocation, but rather did
so verbally. Id. at n.1. The trial court stated that the mother’s verbal
notice was sufficient and it allowed the case to proceed as a relocation
matter, but that the decision was without prejudice as to the parties’ rights
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to the benefit of section 5337(j), and the trial court did not err by failing to
dismiss Mother’s claim on those grounds.
In the remaining issues that Father raises on appeal, he challenges the
trial court’s conclusions regarding several of the custody factors of section
5328(a) and relocation factors of section 5337(h). Father’s Brief at 23-46.
In his second, third, and fourth issues, which Father addresses together,
Father sets forth each of the custody factors from section 5328(a) and
relocation factors from section 5337(h) that he believes the trial court
decided incorrectly. Id. at 23-45. In his fifth issue, Father claims that the
trial court failed to afford appropriate weight to the evidence of Mother’s
alcoholism. Id. at 45-46.
We begin by acknowledging our scope and standard of review for
custody cases:
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
to file the appropriate appeal. Id. The father did not challenge the
sufficiency of the mother’s verbal notice on appeal. Id. As a result, our
Court reviewed the case under both section 5328(a) and 5337(h). See id.
at 172-73. Because the father did not challenge the mother’s verbal notice,
the issue before us in the instant matter was never before our Court in
B.K.M. v. J.A.M. See id. at 171.
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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.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (quoting Durning v.
Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011)).
In its custody order, the trial court listed each of the factors of section
5328(a) and section 5337(h) and explained how it decided each factor. Trial
Court Order, 1/6/14, at 4-14. The evidence of record supports the trial
court’s decision to award primary custody of the parties’ three children to
Mother. Though Mother has a well-documented struggle with alcohol abuse,
she has been completely sober since November 16, 2011. N.T., 8/1/13, at
61. Mother lives with her parents in a stable home that the children enjoy
visiting. See id. at 59, 322; N.T., 10/28/13, at 32. Prior to Mother and
Father’s separation, Mother was the children’s primary caretaker. N.T.,
8/1/13, at 26, 52-53. Even though the children spend most of their time
away from Mother, they appear to have a deep bond with her and she is
profoundly devoted to them. See N.T., 8/13/13, at 33, 122. Dr. Marlin,
who conducted psychological evaluations of both Mother and Father, testified
that Mother was a sincere, honest, and caring person who is a dedicated
parent. See id. at 38-39, 101, 122.
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While Mother readily admits to previously abusing alcohol, the record
indicates that Father is in denial about his struggle with alcohol. There is
substantial evidence in the certified record indicating that Father abuses
alcohol, including testimony that Father has several drinks per night, several
nights per week, that he drove drunk with J.K. and S.K. in the car, and that
he was arrested for DUI in September 2012. N.T., 8/1/13, at 27-28, 296-
99; N.T., 10/3/13, at 190-91.
Although the children have attended school and participated in
activities in Pittsburgh, and the extent and quality of those available in North
Carolina was not entirely clear at the hearing, these considerations were not
the trial court’s focus in reaching its decision. Rather, the trial court was
concerned about the children’s overall stability, which it found would be
better served in Mother’s care. Trial Court Memorandum, 1/16/14, at 5-6,
12; Trial Court Opinion, 4/15/14, at 4-5. Father and the children have lived
in three different homes in the Pittsburgh area over the past three to four
years and Father is once again unemployed. See N.T, 10/3/13, at 68, 131-
32. Dr. Marlin’s psychological evaluation revealed that Father is an insincere
person who is controlling and manipulative. N.T., 8/13/13, at 39-42. Dr.
Marlin testified that she believed Father has a number of psychological
issues that he refuses to address. See id. at 43-44.
Additionally, Father has made it difficult for Mother to exercise her
custodial rights. N.T., 8/1/13, at 308. Father is not flexible in scheduling
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the children’s time with Mother, he forces Mother to do most of the driving
from North Carolina when she wishes to spend time with the children, he
often refuses to speak with Mother, and he frequently disrupts her video
chats with the children. Id. at 88-90, 92, 94-95, 304, 313. Father also had
S.K. and C.K. baptized without telling Mother. Id. at 132-34. Furthermore,
Father does not discourage C.K. from calling F.S., Father’s fiancée, “Mama,”
and F.S. even testified that she refers to herself as “Mama” to C.K. N.T.,
10/3/13, at 41-42; N.T., 10/30/13, at 55-56.
Issues two through five raised by Father on appeal all challenge the
weight afforded to the evidence by the trial court. Indeed, in his fifth issue,
Father expressly states that the trial court did not afford the appropriate
weight to the evidence of Mother’s alcoholism. Father’s Brief at 45-46. As
previously stated, our standard of review makes clear that “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.”
J.R.M., 33 A.3d at 650. Here, in his second, third, and fourth issues, Father
challenges the trial court’s decision regarding nearly all of the factors of
section 5337(h) and the first, third, fourth, fifth, ninth, tenth, and twelfth
factors of section 5328(a). See Father’s Brief at 26-45. Pursuant to our
review of the record, we conclude that there is substantial evidence
supporting the findings that the trial court reached on each factor of section
5328(a) that Father challenges, including those factors implicated by the
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distance between Mother and Father’s homes pursuant to section
5328(a)(16). Accordingly, because Father asks us to reweigh the evidence,
he is not entitled to relief on his remaining issues.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2014
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