Bolds, R. v. Bowe, H. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD A. BOLDS, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HENRYETTA BOWE : No. 570 EDA 2022
Appeal from the Order Entered January 20, 2022
In the Court of Common Pleas of Monroe County Civil Division at No(s):
006157-CV-2019
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 22, 2022
Richard A. Bolds, Jr. (“Father”), appeals from the January 20, 2022
custody order, wherein the court awarded Henryetta Bowe (“Mother”) primary
physical custody of their four minor1 children B.M.B. (born in April 2005), and
R.M.B. (born in March 2007), R.J.B. (born in January 2012), and R.L.B. (born
in June 2015), permitted Mother to relocate with the children to New York,
New York, and denied Father’s petition for contempt. We affirm.
Mother and Father were in a long-term relationship but never married.
This custody dispute stems from Mother’s sudden separation from Father and
move with the children from Kunkletown, Pennsylvania to New York. The
following facts are relevant to our review.
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1 While the parties fifth child, A.B. (age 20), is not involved in this matter,
she testified on Mother’s behalf during the custody hearing.
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Father simultaneously maintained two households in Monroe County,
Pennsylvania, and each family is aware of the existence of the other family.
Between Sunday nights and Wednesday mornings, Father resided with Mother
and their five children in a house Father owned in Kunkletown. During the
other half of the week, Father resided with his wife, Joyce Bolds (“Wife”) and
their four children in a home Father owned in Stroudsburg. Since the homes
were in different school districts, each set of Father’s children attended
different schools.
Father’s dual relationships with Mother and Wife continued until July 31,
2019, when Mother moved with the minor children to New York without
informing Father of her intention to move or revealing the location of her new
residence. The record confirms that Mother planned the move in advance,
arranging a moving truck, renting a two-bedroom apartment, and enrolling
the minor children in school in New York. N.T., 1/18/22, at 72. Immediately
after her departure, Mother filed and obtained a temporary protection from
abuse (“PFA”) order against Father in the Court of Common Pleas of Monroe
County.2 She included the minor children as protected parties and obtained
temporary custody.
After Father discovered Mother had moved out of the family residence,
he filed a custody complaint pro se in the Court of Common Pleas of Monroe
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2 She also obtained an equivalent order in New York, creating temporary
jurisdictional issues. That matter is now closed.
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County. Father sought sole legal and physical custody of the four minor
children. The court directed the parties to appear at a conciliation conference
on October 1, 2019.
Meanwhile, Mother’s PFA action had been continued several times. On
September 30, 2019, one day before the conciliation conference, the Court of
Common Pleas of Monroe County conducted a hearing on Mother’s PFA petition
and dismissed it.3
Father appeared at the October 1, 2019 custody conciliation with
counsel, whereas Mother participated pro se. The conciliation was held off the
record. Afterwards, the conciliator submitted a recommended interim order,
which the trial court adopted and entered as an interim custody order on
November 1, 2019. In light of Mother’s disagreement with Father’s request
for sole physical custody of B.M.B., R.M.B., R.J.B., and R.L.B., or,
alternatively, Mother’s return to Pennsylvania with the children, the court
scheduled a relocation hearing for February 15, 2020. Pursuant to the interim
order, the parties shared legal and physical custody, with Father’s custodial
period occurring every other weekend. The order required each party to
submit to custody evaluations before Alison Otto, PsyD., within ten days, and
for Dr. Otto to complete the evaluations within sixty days. It also directed
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3 The PFA matter has a separate docket and is not part of the certified record
on appeal, except for the petition and several court orders Father entered as
exhibits at the custody hearing. See N.T., 1/13/22, at 114; Exhibits B and C.
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Father to pay the entire cost of the evaluations. Once Dr. Otto completed the
evaluations, the order required either party to petition the court for a full
evidentiary hearing to determine the ultimate right of custody.
On February 3, 2020, the parties appeared for a pre-hearing conference.
Following the conference, the trial court cancelled the relocation hearing
scheduled for February 25, 2020, noting that Father was still working out a
payment plan with Dr. Otto and the evaluations were not complete. At no
point did Father demand an expedited relocation hearing, which would
typically have occurred prior to the relocation, notwithstanding the payment
issue. See 23 Pa.C.S. § 5337(g)(1)(“the court shall hold an expedited full
hearing on the proposed relocation after a timely objection has been filed and
before the relocation occurs.”
On May 21, 2020, Father filed a petition to modify custody and to hold
Mother in contempt. In the petition, he requested conciliation to address
“short-term custody concerns” while the parties awaited a relocation hearing,
noting he had paid for Dr. Otto’s services but “difficulties with in-person
meetings” due to COVID-19 were delaying Dr. Otto’s evaluation. Petition to
Modify Custody Order and for Contempt, 5/21/20, at 2. He also sought to
hold Mother in contempt for her alleged refusal to provide Father with
educational and medical decisions and her failure to undergo a court-ordered
parenting educational class. The parties held a second conciliation, which
resulted in a July 21, 2020 interim order that refined their interim custodial
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arrangement. However, at Father’s request, the contempt petition was held
in abeyance until the evidentiary hearing.
Father still neglected to demand an expedited relocation hearing and
the case remained dormant until September 21, 2021, when the trial court
conducted a pretrial videoconference. Mother was unable to connect. Upon
learning that Father paid for the custody evaluations in April 2020, but Mother
still had not completed her portion of the evaluation, the trial court issued a
rule to show cause as to why it should not hold Mother in contempt. However,
following a hearing on December 9, 2021, the trial court dismissed the rule to
show cause because Mother indicated she underwent her evaluation in 2020
and submitted written information to Dr. Otto after receiving Father’s motion
for a pre-trial conference in September 2021.
The case finally proceeded to an evidentiary hearing on January 13,
2022 and January 18, 2022. Father and Wife testified on Father’s behalf.
Mother, who by then had obtained counsel, testified. She also presented the
testimony of A.B., the parties’ twenty-year-old daughter, and two witnesses
who testified about the children’s lives in New York. Both parties introduced
a plethora of exhibits and stipulated to the introduction of Dr. Otto’s evaluation
in lieu of her testimony.
On January 19, 2022, the trial court issued a ruling from the bench in
favor of Mother. The court explained that it was denying Father’s request for
primary custody and permitting Mother to remain in New York with B.M.B.,
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R.M.B., R.J.B., and R.L.B. over Father’s objection to relocation. Thereafter, it
delineated its reasoning and consideration of the custody factors and
relocation factors set forth in the Child Custody Act (“the Act”), 23 Pa.C.S.
§§ 5321-5340. See N.T., 1/19/22, at 2-35.
In the ensuing order entered the following day, the trial court set forth
the terms of the custodial arrangement. It modified the custodial periods
Father had been exercising under the November 1, 2019 interim order.
Instead of overnights every other weekend at his home, the trial court limited
Father’s partial physical custody to eight hours during the day on Saturday
and Sunday. The trial court also precluded Father from exercising his physical
custody in Monroe County, with exceptions for certain holidays. The court
awarded Mother and Father shared legal custody and required Mother to
obtain therapy for B.M.B., R.M.B., R.J.B., and R.L.B. The trial court instructed
Father to undergo a domestic violence assessment and comply with any
recommended treatment. It also directed Mother to reimburse Father fifty
percent of the fees Father paid Dr. Otto pursuant to a monthly payment plan.
Finally, the trial court denied Father’s petition for contempt.
Father timely filed a notice of appeal and a concise statement of errors
complained of an appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court complied with Rule 1925(a) by directing this Court to its reasoning
set forth on the record on January 19, 2022.
Father presents the following issues for our review:
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1. Was it error for the [trial c]ourt not to order Mother to return
to Pennsylvania when she moved to New York with the minor
children without a finding of exigency either at the outset of
the case or in the final order following full evidentiary hearing,
fail to hold a reasonably prompt expedited hearing on
relocation after Mother violated the notice provisions of 23
Pa.C.S.A. § 5337 after Father immediately filed an objection to
the illegal relocation?
2. Did the [trial c]ourt commit an error of law and impermissibly
place the burden of proof upon Father, the non-relocating
party, by ordering him to pay for an expensive custody
evaluation, delay any hearing on relocation until the evaluation
was complete, confer a presumption in favor of Mother’s
relocation, and allow evidence to support the relocation when
it was Mother’s illegal acts which gave rise to Mother’s evidence
in favor of granting relocation?
3. Did [the trial court] err in failing to find Mother in contempt for
illegally relocating, enrolling the children in another school in
New York City, failing to advise Father of school and medical
information related to the children even after an interim order
sharing legal custody, and limiting Father’s ordered custody
time?
4. Did the [trial c]ourt abuse its discretion in making change in
physical custody and imposing punitive requirements, by a
misapplication of several evidentiary facts and factors, ignoring
the uncontroverted findings of the expert appointed by the
[trial c]ourt, and making speculative conclusions while showing
a bias against Father resulting in a physical custody order which
is not in the children’s best interest and is not supported by the
evidence?
Father’s brief at 4.
In reviewing custody orders pursuant to the Act, we utilize the following
standard and scope 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
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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,
[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., 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).
“[I]t is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether, based on the
evidence presented, given due deference to the trial court’s weight and
credibility determinations, the trial court erred or abused its discretion in
awarding custody to the prevailing party.” E.B. v. D.B., 209 A.3d 451, 468
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(Pa.Super. 2019) (citation and some quotation marks omitted). To that end,
we have explained
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
D.Q. v. K.K., 241 A.3d 1112, 1117 (Pa.Super. 2020) (quoting Ketterer v.
Seifert, supra at 540).
Father’s arguments assail both the procedure and the merits in this
case, often interweaving issues in his argument. We address his claims as we
discern them in the following order: the lack of an expediated relocation
hearing; the court’s failure to order the return of B.M.B., R.M.B., R.J.B., and
R.L.B. at the outset of the case; the court’s failure to penalize Mother for
relocating without notice; the introduction of post-relocation evidence; the
combined hearing on relocation and primary custody; and the court’s
application of the relocation and custody factors.
We begin with an overview of the Act’s provisions regarding relocation.
Generally, a parent may not relocate with children without the consent of
every individual with custody rights to those children or court approval. 23
Pa.C.S. § 5337(b). The Act requires the relocating parent to provide advance
notification of the proposed relocation alongside certain information, which
then allows the other parent to file an objection with the court and seek a
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temporary or permanent order preventing the relocation. 23 Pa.C.S.
§ 5337(c), (d). “[I]f the court finds that exigent circumstances exist, the court
may approve the relocation pending an expedited full hearing.” 23 Pa.C.S.
§ 5337(g)(3). Otherwise, “the court shall hold an expedited full hearing on
the proposed relocation after a timely objection has been filed and before the
relocation occurs.” 23 Pa.C.S. § 5337(g)(1).
The party proposing the relocation has the burden of establishing that
the relocation will serve the best interest of the child pursuant to ten relocation
factors. 23 Pa.C.S. § 5337(i).
(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 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.
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(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). “Each party has the burden of establishing that the
integrity of that party’s motives in either seeking the relocation or seeking to
prevent the relocation.” 23 Pa.C.S. § 5337(i)(2).
In A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa.Super. 2013), we explained
that, when making a relocation decision that also involves a custody decision,
the trial court must consider the relevant relocation factors and all of the
pertinent custody factors outlined in § 5328(a) as follows.
5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(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)(1) and
(2) (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.
(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
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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). “In any action regarding the custody of the child
between the parents of the child, there shall be no presumption that custody
should be awarded to a particular parent.” 23 Pa.C.S. § 5327(a).
Father’s first claim of error relates to the trial court’s failure to hold an
expedited relocation hearing promptly after Father objected to Mother’s
relocation, thereby implicitly condoning Mother’s relocation after she failed to
provide advance notice of her move. Father’s brief at 10-13. As explained
infra, because Father neglected to present this objection to the court in the
first instance it is waived. See Pa.R.A.P. 302(a).
The Pennsylvania Rules of Civil Procedure provide the following:
(h) If a non-relocating party has not been served with a notice of
proposed relocation and seeks an order of court preventing
relocation, the non-relocating party shall file:
(1) a complaint for custody or petition for modification, as
applicable;
(2) a statement of objection to relocation; and
(3) a request for a hearing.
Pa.R.C.P. 1915.17(h).
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Father filed his custody complaint pro se, using a form complaint with
an attached handwritten statement. In response, the trial court scheduled a
conciliation conference, which is a “prehearing negotiation meeting conducted
under the auspices of the Court by the Conciliator.” Pa. Monroe Co. R.C.P.
1915.1.
Through counsel, Father then filed a pleading entitled Emergency
Petition for Return of the Children and Contempt.4 Father requested that the
court order Mother to return B.M.B., R.M.B., R.J.B., and R.L.B. to Monroe
County, find Mother in contempt of court for failing to abide by an unspecified
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4 This pleading does not appear in the docket or certified record. It is Father’s
responsibility to ensure that the record is complete. See Commonwealth v.
Holston, 211 A.3d 1264, 1276 (Pa.Super. 2019) (“Our law is unequivocal that
the responsibility rests upon the appellant to ensure that the record certified
on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.”). Father’s reproduced
record contains this pleading with a stamp from the Monroe County
prothonotary indicating that Father filed it on September 27, 2019. Despite
its absence on the docket, it appears Father did in fact file it because it is
referenced by an October 1, 2019 order. At any rate, because Mother does
not dispute the accuracy of this pleading and did not object to Father’s entry
of it as an exhibit at the hearing, we shall consider the pleading. See id.- 14 -
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court order,5 modify an existing custody order6 providing sole custody to
Father, and award attorneys’ fee to Father. In this petition, Father referred
to his custody complaint and implied that he had opposed the relocation
therein. See Emergency Petition for Return of the Children and Contempt,
9/27/2019, at ¶ 5 (“Father also opposed any relocation of the children to New
York City, even though Mother never gave him legal notice of her intention.”).
Critically, Father neglected to request an expedited hearing on the issue of
Mother’s relocation with the children.
On the same day as the October 1, 2019 conciliation regarding Father’s
custody complaint, the court docketed an order directing the parties to
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5 We cannot discern what order Father believes forms the basis of Mother’s
alleged contempt. In his brief, Father maintains the court should have held
Mother in contempt for this “illegal relocation” and her unilateral enrollment
of B.M.B., R.M.B. R.J.B., and R.L.B. into school in New York. Father’s brief at
17-18. Father relies upon J.M. v. K.M., 164 A.3d 1260 (Pa.Super. 2017), a
case where the court found a parent in contempt due to her unilateral
relocation without notice or approval. However, in that case, the parent’s
move violated a court order expressly prohibiting relocation. A definite, clear,
and specific order of which a parent had notice is a basic predicate to civil
contempt. See K.M.G. v. H.M.W., 171 A.3d 839, 846 (Pa.Super. 2017)
(setting forth the requirements of contempt: (1) a definite, clear, and specific
order; (2) notice of such order; (3) a volitional act; and (4) wrongful intent).
When Mother moved to New York, nothing in the record indicates that the
parties were subject to a court order prohibiting relocation or governing the
terms of physical or legal custody. Therefore, the court had no basis to find
Mother in contempt with respect to her move.
6 Again, it is unclear to which order Father is referring. Prior to the
November 1, 2019 interim order, the only order relating to custody appeared
to be the temporary PFA order Mother obtained on August 2, 2019 on behalf
of herself and B.M.B., R.M.B. R.J.B., and R.L.B.
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conciliate Father’s Emergency Petition for Return of the Children and
Contempt. The court clerk included a note on the docket that it did not serve
the October 1, 2019 order upon the parties because it received it an hour and
one-half before the conciliation’s start time.
However, it appears that the parties did, in fact, attempt to conciliate
the relocation dispute because the conciliator’s recommended order
references Father’s objection to Mother’s relocation and Mother’s refusal to
return to Monroe County. As a result of the conciliation, the court directed
the parties to undergo a custody evaluation at Father’s expense and scheduled
a hearing for February 25, 2020, following the completion of Dr. Otto’s
evaluations. Again, Father failed to request an expedited relocation hearing.
Father’s argument on this issue presupposes that he properly objected
to Mother’s relocation. However, in Father’s initial custody complaint, Father
referenced Mother’s move to New York but did not clearly object to the move
as a relocation or request a hearing. Instead, he described the move as a
reason why he should have sole legal and physical custody, which apparently
prompted the court to schedule a conciliation to resolve the custody dispute.
Furthermore, assuming arguendo, that Father’s emergency petition for
return of the children and contempt should have prompted the court to
schedule an expedited hearing in lieu of a conciliation, this wrong would have
no remedy. As the best interests of the children is always paramount, it is
not as if this Court can “un-ring the bell or re-set the clock.” See E.B., supra,- 16 -
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at 466-467. Mother had already moved and the temporary PFA order
prohibited Father from having custody of B.M.B., R.M.B., R.J.B., and R.L.B.
and from having contact with Mother up until it was dismissed on September
30, 2019. Afterwards, Father submitted to the conciliation and then did
nothing further once the court adopted the conciliator’s recommended order.
On appeal, Father complains that he had no mechanism to object to the
recommendations other than to petition the court for an evidentiary hearing.
Father’s brief at 12-13. Yet Father fails to explain why he did not avail himself
of this option, particularly when it was an “expedited full hearing” pursuant to
23 Pa.C.S. § 5337(g) that he ostensibly desired. Accordingly, we determine
Father has waived any objection to the court’s failure to hold an expedited full
hearing pursuant to § 5337(g) by not presenting such objection to the court
in the first instance. See Pa.R.A.P. 302(a).
Father’s next set of arguments assails Mother’s failure to provide notice
of her relocation. Father contends that the court should have “sanctioned”
Mother for her “illegal relocation.” Father’s brief at 15. He further claims that
the trial court should have precluded Mother from introducing “any testimony
or evidence obtained as a result of her illegal relocation” at the hearing. Id.
Relatedly, he argues the court erred by combining the relocation hearing with
the primary custody hearing, which he contends shifted the burden of proof
and allowed Mother to benefit from the “fruit of the poisonous tree” from her
“illegal move” and gain advantage in the primary custody hearing with
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evidence in New York. Id. at 16. In light of the allegations of Father’s physical
and emotional abuse of Mother, these claims warrant no relief.
Regarding Mother’s failure to provide advance notice to Father of her
relocation, the Act provides that the “court may consider” such failure as a
factor in the relocation decision, a factor in modifying custody rights, a basis
to order the relocating parent to return the child to the nonrelocating party,
sufficient cause to order the relocating parent to pay the other parent’s
reasonable expenses and counsel fees in objecting to the relocation, and a
ground for contempt and imposition of sanctions. 23 Pa.C.S. § 5337(j)
(emphasis added). Importantly, however, if the court determines the failure
to provide notice “was caused in whole, or in part, by abuse,” the abuse shall
mitigate any consequences of the failure to provide notice. 23 Pa.C.S.
§ 5337(i).
Initially, we observe the Act’s use of the permissive term “may”
indicates that the consequences of the failure to provide notice of a relocation
is wholly within the trial court’s discretion. Additionally, in the instant case,
the trial court found Mother and A.B.’s testimony to be credible evidence that
Father physically abused Mother on two occasions during their relationship,
including hitting her to the point of bruising and an attempting to choke her,
and psychologically abusing her by engaging in controlling behavior. N.T.,
1/19/22, at 4-5, 17-18. It further found that Mother left the Kunkletown
residence in part because of the abuse and her decision to leave without notice
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was reasonable. Id. at 18. The trial court’s findings regarding abuse are
supported by the testimony of Mother and A.B. and documentary evidence
presented during the hearing. Since the Act leaves the consequences of a
party’s failure to provide notice within the trial court’s discretion and requires
the trial court to mitigate any such consequences based on a finding of abuse,
we conclude that the trial court acted within its discretion to forgo imposing
any of the consequences outlined in § 5337(j).
Regarding Father’s related contention that the trial court should have
excluded “all testimony or evidence obtained as a result of [Mother’s] illegal
relocation,” Father is simply incorrect. Father’s brief at 15. It is obvious that
he misconstrues § 5337(l) of the Act as a punitive sanction. In reality, that
subsection, which is entitled “Effect of relocation prior to hearing,” is neutral
insofar as it establishes 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. § 5337(l).
In B.K.M. v. J.A.M., 50 A.3d 168, 175 (Pa.Super. 2012), this Court
explained § 5337(l) merely addresses allocation of the burden of proof. Thus,
it prohibits the trial court from adopting “a prima facie inference that the
relocation is necessarily in the child's best interest” and requiring “the party
opposing relocation to bear the burden of rebutting such an inference.” Id.
However, B.K.M.’s interpretation of § 5337(l) makes clear that nothing
in § 5337(l) requires or permits a trial court to exclude post-relocation
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evidence. Id. Doing so would confer a presumption against relocation and
“convert a statutory provision on the allocation of burdens into what amounts
to an extreme sanction on relocations that occur prior to a full expedited
hearing.” Id. Simply put, because the trial court’s central duty is to examine
the best interest of the children at the time it confers a custody award, it must
consider all relevant evidence whether or not the parent followed the
procedure in § 5337. See id. Thus, the trial court properly followed the law
by considering Mother’s post-relocation evidence.
As to Father’s assertion that the trial court erred by combining the
hearing regarding relocation with the issue of primary custody, the record
indicates that Father in fact acquiesced to a combined hearing. The crux of
this contention is that the consolidated hearing relieved Mother of her burden
of proof as to the propriety of the relocation. For two reasons, this claim fails.
First, as previously noted, Father consented to the consolidated hearing.
At the September 15, 2021 pre-trial conference, Father’s counsel indicated his
understanding from the February 3, 2020 pre-trial conference that the court
wanted the parties to undergo evaluations and “to hear both issues at the
same time.” N.T., 9/15/21, at 6. Father’s counsel did not object to this
procedure, but informed the court that Father desired a return of B.M.B.,
R.M.B., R.J.B., and R.L.B. pending the relocation hearing. The court declined
to order the return of the children in the interim. The court noted that Mother,
B.M.B., R.M.B., R.J.B., and R.L.B. no longer had a home in Monroe County, as
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Father had rented the home to a tenant. Furthermore, sending the children
to the home that Father shared with Wife, and enrolling them in a new school
district, would require changes that were contrary to the court’s desire to
minimize the disruptions to B.M.B., R.M.B., R.J.B., and R.L.B. until it could
determine the primary issue of custody. It scheduled the case for a hearing
in January 2022, and Father did not object.
Father again acceded to the consolidation at the outset of the January
13, 2022 hearing. After the court indicated that the hearing was to address
Father’s request for primary custody, his objection to Mother’s relocation, and
contempt, Father’s counsel agreed, then engaged in the following exchange.
[Trial Court:] Okay. Alright, then counsel are you ready to
proceed.
[Father’s counsel:] Yes, Your Honor. I don’t know if Your Honor
wishes to begin with the relocation, or with the primary custody,
it would be –
[Trial Court:] Well I think that –
[Father’s counsel:] [Mother’s] burden if it were relocation.
[Trial Court:] I don’t think we get to the relocation if the primary
custody is addressed first and if your client is successful. Would
you agree with me on that one?
[Father’s counsel:] Well, I guess we never got to the relocation to
begin with. It’s sort of backwards at this point, unfortunately, so,
but we can’t go back in time or change the course of events of the
last two years.
[Trial Court:] No, but I mean, I’m just trying to be efficient as we
can here today. So I don’t think we get to, if I grant your client’s
request for primary, we don’t get to the issue of relocation.
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[Father’s counsel:] That would be correct, yes.
[Trial Court:] [Mother’s counsel], your position?
[Mother’s counsel:] In our view they’re all interconnected –
[Trial Court:] They are all certainly interconnected.
[Mother’s counsel:] I have no objection to starting with one or the
other. I mean, we would essentially present almost identical, if
not identical, evidence for all of it.
[Trial Court:] Then [Father’s counsel] I’ll leave it to you to choose
how you want to present the evidence on the issues.
[Father’s counsel:] Yes, Your Honor.
[Trial Court:] They are very intertwined.
[Father’s counsel:] And yeah, there will be a lot of overlap, so I
guess we can call our first witness.
N.T., 1/13/2022, at 8-10. Thus, the record bears out that Father accede to
the combined hearings.
Moreover, even aside from Father’s acquiescence to the trial court’s
suggested procedure, we discern no abuse of discretion in the trial court’s
determination because it did not alter the parties’ respective burdens of proof.
The issue of relocation in this case could not be divorced from the issues of
primary custody given the allegations of abuse, the lack of an existing custody
order, and the distance between the parties. There is no doubt that the trial
court’s relocation decision also implicated its custody decision, and as
discussed more infra, the trial court did analyze all of the required factors.
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See A.M.S., supra, at 836 (directing trial courts to consider all ten relocation
factors and all sixteen custody factors).
That Father presented his case first does not mean that the trial court
relieved Mother of her burden. Mother still had the burden of proving the
relocation was in the best interest of B.M.B., R.M.B., R.J.B., and R.L.B. based
on the § 5337(h) factors. Father had the burden of establishing the integrity
of his motive in opposing the relocation. 23 Pa.C.S. § 5337(i). Because both
parties sought primary custody, they both had the burden of demonstrating
the best interest of B.M.B., R.M.B., R.J.B., and R.L.B. pursuant to § 5328.
See § 5327(a). Upon review of the certified record, we conclude the trial
court properly allocated the parties’ respective burdens of proof and no relief
is due.
Next, we address Father’s critique of the trial court’s custody decision,
claiming the trial court abused its discretion in permitting Mother to remain in
New York and have primary custody of the children. Father’s brief at 13-14,
20-28. He contends that the trial court failed to discuss all the relocation
factors, improperly blended the analysis of the relocation and custody factors,
and did not credit Father for factors that clearly were in his favor. Id. at 13-
14, 24-26. According to Father, the trial court ignored obvious signs that
Mother’s credibility was suspect and denied him custody to punish him for his
immoral lifestyle. Id. at 22-24, 26-27.
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Our review of the trial court’s analysis reveals the following. With
respect to the relocation factors, the court found that § 5337(h)(1), (2), (3),
(4), (5), (6), (7), and (9) favored relocation, and § 5337(h)(8) was neutral.
With respect to the custody factors, the court weighed § 5328(a)(1), (2), (3),
(4), (6), (7), (8), (9), (10), (12), (13), and (15) in Mother’s favor. It found
§ 5311(h)(5), (11), and (14) to be neutral.
In explaining her decision to grant Mother primary custody and remain
in New York, the trial court credited the testimony of Mother and the parties’
adult daughter, A.B., who both stated that Father was abusive, controlling,
and neglectful towards maintaining the Kunkletown residence. N.T. 1/19/22,
at 4. Specifically, the trial court found that Father physically and emotionally
abused Mother and emotionally abused B.M.B., R.M.B., R.J.B., and R.L.B. The
court pointed to the demeanor of Mother and A.B., as well as physical evidence
corroborating their claims, such as a photograph of Mother’s black eye, a
photograph of the family dog with a zip tie on its mouth, and a video that A.B.
recorded demonstrating the frequent lack of running water in the house. Id.
at 5. The court expressed concern about some of the trauma B.M.B., R.M.B.,
R.J.B., and R.L.B. experienced. For example, the trial court highlighted an
incident where Father shot and killed the family dog on Thanksgiving and left
the dog’s carcass n the yard while he returned to Thanksgiving with his Wife
and family in Stroudsburg. Id. at 15. By the trial court’s assessment,
Mother’s departure from Monroe County with B.M.B., R.M.B., R.J.B., and
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R.L.B. was not to seize the children from Father, but to provide space to
improve her mental health, eliminate the unhealthy home environment, and
to figure out how the children could maintain health contact with Father. Id.
at 24.
By contrast, the trial court did not credit much of Father’s testimony and
noted his focus on belittling Mother rather than demonstrating how it served
the children’s best interest to be in his primary custody. Id. at 6. The court
also emphasized the children’s disclosures to Dr. Otto that Father demeaned
Mother in front of them, whereas Mother refrains from discussing Father. Id.
at 19. The court explained that it was concerned about potential backlash by
Father because Father fails to accept his role in creating an environment of
abuse, control, and fear. Id. at 14. The court indicated that it hoped to return
to overnights on weekends, but it did not feel it was safe to do so until Father
obtained an assessment and counseling for his anger, violence, and control.
Id. at 15.
The court determined Mother has always been the primary custodial
parent and did much of the “heavy lifting” of parenting, in contrast to Father,
who “came and then . . . left and went back to his other life.” Id. at 3, 9.
Tellingly, even though B.M.B., R.M.B., R.J.B., and R.L.B. now live in a small
apartment with Mother, the children all told Dr. Otto that they preferred
Mother to maintain primary custody. Id. at 17. In this regard, the court also
found that the relocation benefitted Mother and the children in a variety of
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ways, including distancing them from the chaos, turmoil, and abusive situation
they experienced living with Father half the week. Id. at 22.
The court acknowledged R.J.B., and R.L.B. had a playful, affectionate
relationship with Father, but in the trial court’s view, this only was a “sliver of
parenting” during playful times. Id. at 10. The court noted the recurring
dynamic with the older siblings, which was a growing resentment towards
Father and the feeling that his family with Mother was inferior to his family
with Wife. Id. This was exacerbated by Wife’s treatment of the children as
guests in her home and underlying tension by the two families that pervaded
the children’s descriptions of Wife to Dr. Otto, in contrast to Wife’s professed
care for the B.M.B., R.M.B., R.J.B., and R.L.B. Id. at 8. Additionally, Father
struggled to keep up with the maintenance of two homes, often prioritizing
problems with Wife’s home and letting issues at Mother’s home linger. Id. at
11-13. He also did not keep up with children’s dental work, which led the trial
court to find that Father is willing to sacrifice B.M.B., R.M.B., R.J.B., and
R.L.B.’s well-being when he believed his finances required it. Id. See also
23-31 (analyzing the custody factors in a similar fashion).
Ultimately, the trial court’s analysis was thorough. The court properly
examined each relocation and custody factor, and its factual findings are
supported by the certified record. That the analysis overlapped on many
factors was not an error by the trial court; instead, it was consistent with the
law. As this Court has commented, “[a] court should avoid dissociating the
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issue of primary custody from the issue of relocation, and should instead
decide the two issues together under a single umbrella of best interests of the
children.” S.S. v. K.F., 189 A.3d 1093, 1098 (Pa.Super. 2018) (citations and
quotation marks omitted).
Father’s criticisms essentially ask this Court to override the credibility
determinations of the trial court, reassess the evidence to credit Father’s
position, and re-weigh the factors to arrive at a different outcome. This we
cannot do. It is axiomatic that the trial court is the arbiter of credibility, and
this Court cannot interfere with the trial court’s careful and thorough
consideration of the best interests of children with findings that are supported
by the record. A.V., supra, at 820. The trial court, as the finder of fact, has
the discretion 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).
Relatedly, we reject Father’s argument that the trial court “seem[ed]
focused on punitive measures upon Father, rather than focusing on the best
interests of the children.” Father’s brief at 22. Father contends that the trial
court “accuses” him of being a “bigamist,” attributes all negative findings
about his dual relationships to him and not Mother, and “inserted [the court’s]
own morality” sua sponte. Id. at 23.
As this Court has recognized, a parent’s morality or sexual lifestyle is
not a custody factor. V.B. v. J.E.B., 55 A.3d 1193, 1198 (Pa.Super. 2012)
(holding the trial court erred by “inject[ing] artificial morality concerns that
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the legislature has deemed irrelevant” to the custody determination). In V.B.,
this Court held the trial court’s general disfavor of polyamory pervaded its
custody determination despite no evidence that the father’s past participation
in such a sexual arrangement adversely affected the children. Id. at 1201.
Relying upon the established concept that a party’s morality is irrelevant to a
custody determination without any evidence the morality has a detrimental
effect on a child, this Court reversed the trial court’s custody award to the
children’s grandparents. Id.Father is correct that the trial court did not mince words about Father’s
maintenance of two long-term relationships and families, stating the
following:
And nobody is talking about the 3,000-pound elephant in the
room. That is leading a bigamous life. [Father’s] technically not
married to [Mother]. But nobody is talking about what your –
what [Mother and Father’s] decision to live in this manner was
doing to the mental wellbeing of the children.
N.T., 1/19/22, at 7. The court proceeded to distinguish between the parents’
respective roles, indicating its belief that Mother entered into the arrangement
due to her youth and love for Father, whereas Father was “leading a double
life” and behaving narcissistically. Id. The court indicated that was “not
cutting [Mother] all the slack here because she chose to stay and she didn’t
have to, and she chose this life and she didn’t have to,” but that “what [Father]
was doing is a different ballgame” that “goes to the morality that you’re
teaching your children.” Id. at 9.
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Despite the trial court’s comments, upon our review of the certified
record as a whole, we find this case to be distinguishable from V.B. In the
instant case, the record contained evidence of the negative affect Father’s
maintenance of two families had upon B.M.B., R.M.B., R.J.B., and R.L.B. and
Father’s abuse and control over Mother and the minor children.
After assessing the family, Dr. Otto noted Father’s narcissistic
personality traits in her assessment of him, and noted concerns about his
propensity to anger, controlling nature, and authoritarian parenting style.
See N.T., 1/13/22, at Exhibit A.
Mother described needing Father’s permission to go places and his
monitoring of her whereabouts by checking her gas gauge. N.T., 1/18/22, at
28. He supervised her visits with family, requiring her to obtain his permission
and scrutinizing the parameters of those interactions. Id. at 49-50. On one
occasion, Father grabbed Mother’s neck and professed, “he loved her to death”
while choking her. Id. at 29-30. During another episode, he gave Mother a
black eye and she ran out of the house so the children would not see it. Id.
at 31. As it relates to the children, Mother testified that, in her view, B.M.B.
and R.M.B. are much happier upon moving to New York because their
individual personalities are coming through. Id. at 64. In Father’s house, the
children could not express their opinions and had to be obedient. Id.
A.B. testified about the black eye incident, observing that Mother fled
from the house with a black eye after she had been upstairs arguing with
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Father. N.T., 1/13/22, at 174. Father left A.B. and the other children home
alone in the home, and told them to call him if Mother did not return so he
could take them all to Wife’s house. Id. She recalled that the children were
so afraid to go to Wife’s home with Father that they called Mother begging her
to return. Id.
In addition, A.B. confirmed Father’s interruption of their Thanksgiving
dinner to shoot the family dog. Id. at 169-70. Furthermore, she described a
different incident where Wife no longer wanted to be troubled by a dog at her
house. Accordingly, Father brought the dog to Mother’s home on Christmas
morning, zip-tied the dog’s mouth shut so tight that it was bleeding, and left
the dog behind while he returned to Wife’s home to celebrate Christmas with
Wife and his other children. Id. at 171-72.
As it relates to her homelife with Father, A.B. testified about Father’s
expectation that she and her siblings greet him enthusiastically when he
returned from his house with Wife and stated that he would inflict punishments
if the children did not comply. Id. at 173. As one of the most evident
examples of Father’s domineering control, A.B. testified that Father kept
R.L.B.’s existence secret from Wife for three-years by prohibiting all of his
children, in both families, from telling Wife about the child. Id. at 176.
Finally, A.B. described living without running water for years. Father
would switch on a valve in the basement when he arrived mid-week, but the
running water would eventually run out. He prohibited Mother from turning
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on the valve or getting it fixed. Id. at 208-09. A.B. noted, however, that the
water always worked at Wife’s house. Id. at 185-188, 193.
Thus, despite the trial court’s harsh comments about Father’s lifestyle,
the certified record reveals that it based its assessment of the factors upon
Father’s behavior, not its preconceived notions or judgment against Father’s
immorality.
For all of the foregoing reasons, we conclude the trial court did not abuse
its discretion in awarding Mother primary custody of B.M.B., R.M.B., R.J.B.,
and R.L.B. in New York, and restricting Father’s periods of physical custody to
daytime visits on the weekends in New York.
Father’s final argument relates to his May 2020 petition for contempt.
The following legal principles are relevant. “Our review of contempt orders is
limited to determining whether the trial court abused its discretion.” E.B.,
supra at 469. In the context of contempt orders,
Judicial discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if, in
resolving the issue for decision, it misapplies the law or exercises
its discretion in a manner lacking reason. Similarly, the trial court
abuses its discretion if it does not follow legal procedure.
Id.
This contention does not relate to the relocation. The petition alleged
that Mother refused to provide information related to education and medical
treatment, limited telephone contact with the children, refused Father’s
proposal for additional time, and failed to comply with co-parenting
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requirements. See Petition to Modify Custody Order and Contempt,
5/21/2020, at 2.
On appeal, Father contends that the trial court erred in denying his
contempt petition because Mother failed to bolster her testimony that she
provided notice to Father by phone or email in advance of the children’s
medical appointments. Father’s brief at 19. This argument garners no relief.
As the trial court pointed out during the evidentiary hearing, it was within the
trial court’s discretion to find Mother’s testimony credible without the need for
corroborating evidence. N.T., 1/18/22, at 87-90. Father also blames Mother
for his inability to obtain information from the schools in New York, yet he did
not clearly establish that his inability to obtain information was due to Mother’s
actions as opposed to bureaucratic rules of the schools.
Finally, Father contends the trial court erred by not holding Mother in
contempt due to her delay in cooperating with all aspects of Dr. Otto’s
evaluations. Father has waived this issue by not presenting it to the trial court
in the first instance. Pa.R.A.P. 302(a). The only reference regarding the
evaluations in his contempt motion was an averment that he paid for the
evaluations but “given the difficulties with in-person meetings this evaluation
has been somewhat delayed.” Petition to Modify Custody Order and for
Contempt, 5/21/20, at ¶ 8. Nowhere does he indicate that he sought to hold
Mother in contempt for these delays. Instead of filing a contempt motion later
in 2021, he chose to request a pre-trial conference. There, the trial court sua
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sponte issued a rule to show cause regarding Mother’s role in the delay of the
evaluations and dismissed the rule after Mother finalized her portion. Insofar
as the trial court did not it misapply the law or exercises its discretion in an
unreasonable manner in denying Father’s petition for contempt, no relief is
due.
In sum, upon review of Father’s arguments, we conclude that the trial
court did not err or abuse its discretion in awarding Mother primary custody
of B.M.B., R.M.B., R.J.B., and R.L.B., permitting Mother and the children to
remain in New York, and denying Father’s motion for contempt. We are
satisfied that the trial court conducted a thorough analysis of the best interests
of B.M.B., R.M.B., R.J.B., and R.L.B., with factual findings that are supported
by the record.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2022
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