S.M. v. R.J. ( 2017 )

J-S22006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.M., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
R.J.,
Appellee No. 1802 MDA 2016
Appeal from the Order Entered October 3, 2016
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2016-397 C.P.
BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 21, 2017
S.M. (“Mother”) appeals from the order entered October 3, 2016,
denying her relocation with the parties’ son, E.J. (“Child”), age five, born in
January of 2012, from Susquehanna County, Pennsylvania, to Foxworth,
Mississippi. We affirm.
Mother and R.J. (“Father”) are not married but lived together on and
off, finally separating in the fall of 2012. N.T., 6/13/16, at 11. Prior to the
instant proceeding, there was no court-ordered custody; the parties
proceeded with a custody arrangement by agreement and without court
intervention. Trial Court Opinion, 10/3/16, at 1. The trial court represents
that there is no dispute that the parties have maintained a good relationship
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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with each other “even after their separation and have always worked
together in raising their son.” Id. Mother has never sought court-ordered
child support from Father “as she never wanted to create any animosity
between the parties.” Id.
The trial court set forth the procedural history of this matter as
follows:
On April 25, 2016, Mother filed a custody complaint
together with a notice of proposed relocation to . . . Foxworth,
Mississippi. Mother did not provide any specific information in
her notice of proposed litigation as Mother contended that any
relocation was “contingent” upon awarding Mother primary
physical custody and approving the proposed relocation.
(Relocation Notice). On May 6, 2016, Father filed a counter-
affidavit regarding relocation indicating that Father objected to
the proposed relocation. On that same date, Mother filed a
petition for special relief seeking immediate court approval of her
relocation pending a full custody hearing. Likewise, Father filed
a petition for special relief contending that Mother had already
removed [Child] from Susquehanna County, and sought an
interim order that prevented Mother from removing [Child] from
Susquehanna County pending a relocation hearing.
On May 11, 2016, the [c]ourt scheduled a hearing on
Mother’s petition for special relief for June 13, 2016, but the
[c]ourt did not enter any interim order that would have
permitted Mother to relocate with [Child] to Mississippi prior to
any hearing. The [c]ourt likewise scheduled a hearing on
Father’s petition for special relief for June 13, 2016, and the
[c]ourt directed that neither party was to remove [Child] from
Susquehanna County without court approval.
On June 13, 2016, the parties appeared to address their
cross-petitions for special relief and essentially began submitting
testimony related to the underlying relocation question. At the
conclusion of that hearing, the [c]ourt denied both parties’
petitions for special relief, but permitted Mother “to take [Child]
from Susquehanna County for any partial custody and/or
visitation purposes to visit the State of Mississippi, as her job will
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allow, provided that she does get the minor child back for
regular scheduled contact with [F]ather.” The [c]ourt then set
the matter down for a full custody hearing on June 30, 2016.
The parties were unable to conclude their testimony at the June
30, 2016 hearing, and subsequent hearings were conducted on
August 8, 2016 and September 22, 2016.1
1
At the conclusion of the August 8, 2016 hearing,
the [c]ourt established a set custody schedule for
Father as it was discovered that the intent of the
June 13, 2016 Order was not being honored, i.e.,
Mother had taken [Child] to Mississippi but was not
continuing to maintain the former regular schedule
of partial custody with Father established between
the parties. For this reason, the [c]ourt ordered that
Father would have partial custody for a three day
period every other week and that Father received
one (1) full week of partial custody between August
20 through August 27, 2016.
Trial Court Opinion, 10/3/16, at 1–3.
Following the hearings, the trial court awarded the parties joint legal
custody of Child with primary physical custody to Mother and periods of
partial physical custody to Father. The trial court denied Mother’s relocation
to Mississippi. Following the court’s denial of Mother’s motion for
reconsideration on October 25, 2016, Mother filed a timely notice of appeal
to this Court on November 2, 2016. Both Mother and the trial court
complied with Pa.R.A.P. 1925.
Mother raises the following issues on appeal:
Did the Trial Court commit an abuse of discretion and err as a
matter of law by drawing unreasonable inferences and arriving
at unreasonable conclusions from the evidence presented, and
by ignoring applicable appellate law in coming to those
unreasonable conclusions and inferences, such that the Trial
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Court’s denial of [Mother’s] proposed relocation and custody
determination amounts to a gross abuse of discretion?
Did the Trial Court commit an abuse of discretion and err as a
matter of law by imposing burdens on [Mother] to show that a
relocation was in the best interests of [Child] when the burdens
utilized in arriving at the Trial Court’s decision are unknown in
Pennsylvania Law?
Mother’s Brief at 3.1
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.
§§ 5321–5340, our standard of review is as follows:
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 inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (internal citation
omitted). This Court “will accept the trial court’s conclusion unless it is
tantamount to legal error or unreasonable in light of the factual findings.”
____________________________________________
1
Although Mother appears to present two distinct issues in her brief, the
argument section of her brief raises one issue with ten subparts, in violation
of Pa.R.A.P. 2119 (“The argument shall be divided into as many parts as
there are questions to be argued”). In addition, she has failed to comply
with Pa.R.A.P. 2116 (“Each question shall be followed by an answer stating
simply whether the court or government unit agreed, disagreed, did not
answer, or did not address the question”). Nevertheless, we address the
issues properly preserved.
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M.G. v. L.D., ___ A.3d ___, ___, 2017 PA Super 29, *5 (Pa. Super. 2017)
(citing S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)).
Section 5328(a) sets forth the best interest factors that the trial court
must consider when awarding custody. E.D. v. M.P., 33 A.3d 73, 80–81,
n.2 (Pa. Super. 2011). Those factors are 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.
(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.
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(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Section 5337(h) sets forth the following ten relocation factors that a
trial court must consider when ruling on a relocation petition:
(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:
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(1) The nature, quality, extent of involvement and
duration of the child’s relationship with the party
proposing to relocate and with the nonrelocating party,
siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and
the likely impact the relocation will have on the child’s
physical, educational and emotional development, taking
into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between
the nonrelocating party and the child through suitable
custody arrangements, considering the logistics and
financial circumstances of the parties.
(4) The child’s preference, taking into consideration the
age and maturity of the child.
(5) Whether there is an established pattern of conduct of
either party to promote or thwart the relationship of the
child and the other party.
(6) Whether the relocation will enhance the general
quality of life for the party seeking the relocation,
including, but not limited to, financial or emotional benefit
or educational opportunity.
(7) Whether the relocation will enhance the general
quality of life for the child, including, but not limited to,
financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party’s household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S. § 5337(h). See also E.D., 33 A.3d at 81 (“Section 5337(h)
mandates that the trial court shall consider all of the factors listed therein,
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giving weighted consideration to those factors affecting the safety of the
child.”) (emphasis in original).
Further, with regard to the custody and relocation factors, we have
stated as follows:
“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). Section 5337(h) requires courts to consider all
relocation factors. E.D., supra at 81. The record must be clear
on appeal that the trial court considered all the factors. Id.Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). Section
5323(d) applies to cases involving custody and relocation.
A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa.Super. 2013). A.V. v.
S.T., 87 A.3d 818, 823 (Pa. Super. 2014).
In expressing the reasons for its decision, “there is no
required amount of detail for the trial court’s explanation; all
that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
denied, [620 Pa. 710], 68 A.3d 909 (2013). A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
Id.A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014) (emphasis in
original). Moreover, “[w]hen a custody dispute involves a request by a party
to relocate, we have explained ‘there is no black letter formula that easily
resolves relocation disputes; rather, custody disputes are delicate issues that
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must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417,
421 (Pa. Super. 2012) (quoting Baldwin v. Baldwin, 710 A.2d 610, 614
(Pa. Super. 1998)).
We have scrupulously reviewed the complete record in this case and
have read the notes of testimony. On June 13, 2016, both parties testified.
On June 30, 2016, Mother and her fiancé testified. On August 8, 2016,
Mother and the maternal grandmother testified, and on September 22,
2016, both parties, the paternal grandmother, and a paternal aunt testified.
We have carefully considered the arguments of the parties as well as the
applicable law. We conclude that the trial court has thoroughly and correctly
analyzed the evidence and applied it to this matter. We affirm the October
3, 2016 order on the comprehensive opinion of the Honorable Jason J. Legg,
who provided analysis of all of the relocation factors set forth at 23 Pa.C.S. §
5337(h), as well as the general best interest custody factors set forth at 23
Pa.C.S. § 5328(a).2,3 We make the following additional observations.
The over-arching theme in Mother’s brief is that the trial court
“focused too much attention,” or “did not place enough emphasis” on
particular relocation factors. Mother’s Brief at 15. This Court does not
____________________________________________
2
Mother, who was awarded primary physical custody despite the denial of
relocation, has not challenged any of the factors set forth in Section 5328 of
the Act.
3
We direct the parties to attach a copy of the trial court’s opinion in the
event of future proceedings.
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reweigh the factors; our role does not include making independent factual
determinations. C.R.F., 45 A.3d at 443. Indeed, we defer to the trial
court’s factual findings that are supported by the record and its credibility
determinations. M.G., ___ A.3d at ___, 2017 PA Super at 29, *5. We
reaffirm that in a relocation case, as in any custody case, the paramount
concern remains the child’s, not the parent’s best interest. We are reminded
of the Court’s comments in a custody case that pre-dated the Act, but that
remain particularly apt:
It is beyond the belief of this court that any parent would petition to
relocate their children if said relocation would not contribute to the
personal happiness and emotional well-being of the petitioning parent.
If these particular benefits to the relocating parent were to carry such
weight alone, few relocations petitions would demand much attention
and time by the court, few would be denied, and the best interest of
the children would take a back seat to the best interests of the
relocating parent in virtually every case.
Graham v. Graham, 794 A.2d 912, 917 (Pa. Super. 2002). Instead, as it
was required to do, the trial court considered all of the factors required by
23 Pa.C.S. § 5337(h) and concluded that Mother’s relocation with Child
should be denied. The trial court’s conclusions do not involve any error of
law and are not unreasonable in light of its sustainable findings. Thus, we
will not disturb them on appeal.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2017
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Plaintiff ~~01ereina1ter referred to as Motlier)aind defendant lf9II
.: I t (hereinaifier referred to as Faifuer) naive one child,
(hereinafter referred! to as E.J.), Cllaite of birth, Jaim.1airy•. 2012. The parties separated
in the fall of 2012, but this Court has never eniered ainy custody order relative to E.J. as
to the parties were able to aimicaib~ work out a custody arrangement Mo~her contends
that Father sees E.J. one or two daiys per week, while Father has sufomitted a calendar
exhibit ihait evidenced far more substantial and meaningful contact with E.J. (Resp. Ex.
2.) There is no dispute thait the parties have maintained a good reiafionship with each
other even after their separatlon arnd have always worked together i.n raising their son.
Mother has never sought any court ordered child support from father as she never
wanted to create any airnimosity between the parties.
On April 25, 2016, Mother filed a custody complaint together with a notice of
proposed relocation to ~OIDNOruh, Mississippi. Mother did not proYide
any specific information in her notice of proposed Jnigation as Mother contended that
any relocation was "contingent" upon awarding Mother primary physical custody and
approving the proposed relocation. (Re~ocaition Notice). On Maiy 6, 2016, F aither filed a
1
counter-affidavit regarding relocaition indoCBJting fhat Faiiher objected to the proposed
relocatlon. On that same date, Mother filed a petition for special relief seeking
immediate court approval of her relocation pending a full custody hearing. Likewise,
Father fiied a petition for special irelie1 contending that Mother had already removed E.J.
from Susquehainnai County, and sought an interim order ihait prevented Mother from
removing E.J. from Susquehanna Co11.1nty pending a relocation hearing.
On Maiy 11, 2016, the Court scheduled a hearing on Mother's petition for special
relief for Jn..me 13, 2016, but the Court did not enter any interim order that would have
permitted Mother to relocate with E.J. to Mississippi prior to any hearing. The. Court
:it... .., ... ,···
likewise scheduled ai hearing on Father's petition for special relief for June 13, 2016.
and the Court directed that neither party was to remove E.J. from Susquehanna County
without court approval.
On June 13, 2016, the parties appeared to address their cross-petltions for
special relief and essentially began submitting testimony related to the underlying
relocation question. At the conclusion of that hearing, the Court denied both parties'
petitions for special relief, but permitted Mother "to take the child from Susquehanna
County for any partial custody and!/or visitation purposes to visit the State of Mississippi,
as her job will allow, provided that she does get fthe miroor child back for regular
scheduled contact with the father." The Court then set the matter down for a full
custody hearing on June 30, 2016. The parties were unable to conclude their testimony
~ ··~
at the June 30, 2016 hearing, and subsequent hearings were conducted on August 8,
I
~
2
2016 ainol September 22, 2016.1 The record is now closed and the matter is ripe for
disposition.
The paramount question in any custody proceeding is what custody arrangement
provides for the best interest oUhe child. See W.C.F. v. M.G., 115 A.3d 323, 326 (Pai.
Super. 2015). "The best-interests standard, decided on a case-by-case basis,
considers all factors which legromaite!y have an effect upon the child's physical,
intellectu~,. moral, and spiritual well-being." D.K.D. v. A.LC., 141 A.3d 566, 572 (Pa.
Super. 2016)(quoting Saiintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006)). When
considering whether a proposed relocation is in a child's best interest, the Court must
review 10 statutory factors under 23 Pa. C.S. § 5337(h), as well as the 16 factors
enumerated in 23 Pa. C.S. § 5328(a) as ot relates to an award of custody.
'The party proposing the relocation has the burden of establishing that the
relocation will serve the best interest ot the child .... " 23 Pa. C.S. 5337(i); ~ D.K.D.,
141 A.3d at 573 ("As the custodial parent seeking to relocate with L.D., Mother had the
burden of establishing that relocation is in her son's best interest."); cf. Klos v. Klos, 934
A.2d 724, 728 (Pa. Super. 2007){"Where a custody order exists prior to 1he petition to
relocate, the parent who desires to relocate bears the burden of proving {that relocation
I
is in the best interests of the child]."). Given that Mother is seeking the proposed
I
Af the conclusion of the August 8, 2016 hearing, the Court established a set custody schedule for !
Father as it was discovered that the intent of the June 13, 2016 Order was not being honored, i.e., Mother
had taken E.J. to Mississippi but was not continuing to maintain the former regular schedule of partial
custody with FaU'ler established between the parties. For this reason, the Court ordered that Father
would have partial custody for a three day period every other week and that Father received one (1) full
week of partial custody between August 20 through August 27, 2016.
3 ~
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J
relocation, Mother bears the burden of demonstrating by ai preponderance of the
evidence thst the proposed relocanon to Mississippi is in the best interests of E.J. 2
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~~n~«!J's me.
Both parties have been substaintially involved in E.J.'s life and have shared
parental duties. Mother has been the primary caregiver for E.J. and she has a close
relationship with E.J. · Mother worked very hard to assure that Father established a
close relationship with E.J. Mother has provided transportation to make sure that E.J.
sees Father, Mother and her family have opened their home to father during holidays
so thait Father can spend additional time with E.J. aside from his normal periods of
partial custody. Mother allowed Father to come to her residence to spend time with E.J.
to perform parental duties; such as giving E.J. a bath, getting E.J. ready for bed, and
reading E.J. a bedtime story. Fsther presented an exhibit that demonstrated that he
was seeing E.J. approximately fifty (50%) percent (or more) of the time -whether during
his own periods of partial custody or oluring periods when he would go to Mother's
residence to spend time with E.J. (Resp. Ex. 2.) As between the parents, this factor is
neutral as the record plainly demonstrates thait both parties have a close and
meaningful relationship with E.J.
2 "Relocation" is defined as follows: KA change in a residence of the child which significantly impairs
the ability of a nonrelocating party to exercise custodial rights.~ 23 Pa. C.S. § 5322. Mother has
conceded that this case involved a relocation as she filed notice of relocation as required under 23 Pa.
C.S. § 5337(c). The proposed relocation to Mississippi is plainly the type of geographic move that would
constitute a relocation under the definition provided in § 5322.
4
. I
The parties h!aive no other children so there ere no siblings relationships
implicated in this case.3 As to other signifiCBJnt parties, the record demonstrates that
E.J. has extensive familial relations here in Susquehanna County. Mothier resides with
her Mother, Mary Wimams, and her step-father, Mark Williams. Mottler tesiified that
E.J. had a close relationship with both parties, but that E.J. 's relationship with his
matemail grandmother was very close. Along with her parents, Mother is also residing
with her 19-year old brother at fcheir parents' residence. Likewise, two of Mother's
sisters live in or around her parents' residence, Molly (19) anal Emily (27). Mother
testified that her sisters see E.J. on a weekly basis and that they have a very close
relationship with him. Significantly, Emily has two sons of her own - Lyle (5) and Darrin
(2). E.J. has a close relationship with his cousins, especially with Lyle who is close to
the same age.
Likewise, Father has a sister, S.-Jit&••· who resides near Montrose and
sees E.J. every few weeks. ~testified that she had ai very close relationship with
E.J. that would be detrimentai~ly impacted if her nephew was allowed to relocate. The
remainder of Father's family lives in New Jersey approximately 2 to 3 hours away, but
the testimony was that Qhe distance did not prevent them from having regular contact
with E.J. approximately once every three to six weeks. These periods of visitation
$ Mother revealed at the August 8, 2016 hearing that she was pregnant and that she was "probably
about six to eight weeks" into her new pregnancy. {N. T., Aug.8, 2016, at 26.} At the September 22, 2016
hearing, Mother testified that she was 20-weeks into her pregnancy. When pressed on how far along she
was in the new pregnancy, Mother changed her answer to 16 weeks. When the Court questioned her as
to her due date, she did not provide an immediate answer to that question, but later indicated that she
believed it was in March 2017, which would be more consistent with her pregnancy being closerto 16
weeks than 20 weeks. Mother contended that she has not been receiving any consistent OB-GYN care
to this point, but had visited a •clinic" on two occasions. Despite the vagueness and inconsistency of this
testimony, Fattier has not contested the fact that Mother is pregnant, but it is also cleair that E.J. does not
yet have a born sibling with which to interact.
5
. I
occurred when Father takes E.J. to New Jersey to see them or when they come to
Susqueha11rmai County to see Father and E.J.
In contrast, E.J. has no significant connections with any parties in Mississippi.
Mother is engageol to Terry Tolar (hereinafter referred to as Tolar), but this engagement
was just announced in Jainuary 2016.4 No marriage has yet occurred. Mr. Tolar has
family irn Mississippi, but they are not related to E.J. Mother contends that these people
are significant people in E.J.'s life because E.J. has gone to Mississippi to visit with
them and they will soon be his extended family as a result of her anticipated marriage.
it was estimated that IE..J. has gone on 20 visits to Mississippi since Mother and Tolar
began dating. Tolar has four grandchildren who are close in age to E.J. and E.J. has
estaiblished some kind of relationship with them as a result of his visits. If the marriage
occurs, Tolar's grandchildren would become E.J.ts step-niece and nephews even
though some of these children are actually older than E.J.
In weighing this faicior, Mother has failed to meet her burden of proof of
demonstraiting that this factor weighs in favor of the proposed relocation. The vast
majority of E.J.'s extended family (and other significant persons in E.J.'s life) live in and
around Susquehanna County. While there may be potential new family members
residing in Mississippi, these people simply do not have the history or connections that
the local falmily members have with E.J. As such, this factor weighs aigainst relocation
and in favor of Father's position.
4
Tolar does not reside in Mississippi as he works fur a pipeline company that requires him to move
around the country for his work. Tolar spent the past four years in Susquehanna County but completed
his assignment here in NoYember 2015. Tolar is currently working in Florida on a project which he
believed would involve approximately 10 months of work. As such, Mother's proposed relocation would
be to Mississippi under circumstances where her fiance will not even be present in the home for the
majority of the time but only be present on weekends or other days off.
6
(l» 11hl® il~l&, ldlsw@!cprnrn11Kllf(;Ji $til9J®, L'!lHdl$ cf \Wtie chliid ti~ldl
Wll@ Unlk@nw nmpai.«:~ fdl'o@ r@U©c.;itwcrrn woOI ~i!V~ en tthe
V11$lhDi? lble!lweeirn
fthe fl'ilCtl'llJra~cc;itliJl'D~ pairty i!llllidl fMe clhli~~ tillrr@ugh
$lUlntilb~ce c~stO~us~iatdl l]llSJtteD'll1l cf coiniiolllllct cff
soWnerr ~rty te IPl1'0MlOJ~ or tlltiwairi 1ihie& rrellaitionshop cu
fil'lle clhio~ol with tlhle c®berr pialriy D
There is no evidence that either party has ever engaged in any conduct aimed at ,·
thwarting the relationship between E.J. and the other pairty. On the other hand, there is
10
ample evidence that Mother has worked diligently to promote the relationship between
Father and E.J. Moither provioled transportation to assure that Father received EJ.
Moiher allowed Father to come to her personal residence and care for E.J., such as
bathing him, reading to him and getting him into bed. Mother invited Father to come to
her residence for holidays and spend the time together as a family with E.J. Mother
never sought chHd support from Fattier because she did not warnt to create any
animosity between the pairties. Mother stated that she wanted to work fthings out and
avoid court proceedings. As a result of Mother's commendable efforts, the parties
,.
never had to resort to any court involvement until Mother's proposed relocation.
There is nothing on Rhis record to suggest that Father engaged in similar level of
conduct. Father certaonly worked with Mother and engaged in activities mat some
separated couples would root do, l.e., Father would spend holidays at Mother's
residence and would go to Mothers residence to care for E.J. While Mother allowed
Father to engage in this conduct at her residence, Father should also be credited with
recognizing that it was in E.J.'s best interests to see his Mother and Father getting along
and working together. As to 'this factor, however, the record clearly demonstrates fhat
Mother has engaged in emraordinsry efforts to promote the relationship between Father
a1111d E.J. As noted eainier, Mofuer's efforts have been successful as Father and E.J.
have a close relationship. For these reasons, this factor also weighs in favor of Moiher
and supports relocation.6
As will be noted later in this opinion, the Court has concerns about Mother's continued
commitment to encouraging and supporting Faiher's relationship with E.J. These concerns center around
Mother's aWtude towaird her sense of entitlement to relocate regardless of Father's position, coupled with
2 absolutely terrible text messages that Mother sent to Father in response to his opposition to her
L
proposed relocation.
11
{®} W~@ftlhl@r ~® 1r®Oote1i1itDClnl wall~ @11\l~iIDlnl(Ce tlhJ® ;~lrll~ra:iU
~lUlaiDfi~ @'rf mie ~<0>r fdhlre fPl~ffl]f $@~1ldrro91 ftlhle reOccai~tO>ll'ii
oiro(C:ll1Wd!Dll1l!SJ, [o)QJJt rrn(O)t Oomo!ted fto, ln"1l&l11lCD~I @r emclto©lui~~
lbi1errn@ffiit @IT' (S~llJJCa)ij(O)fJ'\lcilO O[pl[Ml)&"ftR.11 rrnn(ty.
Moiher contends thet she is relocating based upon a job opportunity to be a
campground mainaJger that would paiy her $40,000 per year. (Pet. Ex. 1.) The initial
starting daite was to be June 1, 2016. (Pet. Ex. 1.) The campground is owned by
Mother's flanee and his son appairently in equal shares. Tolar testified that the
campground has 77 lots, a pool aind a playground. !twas a pre-existing business which
was purchased out of a foreclosure proceeding. Tolar testmed that the campground
had been in business for 15 to 18 years, but the recorc fails to disclose why it went into
foreclosure. Tolar testffieol that he viewed the campground as a retirement vehicle, but
also conceded that he planned on working in his current field for another 6 years.
There was no evidence presented as to whether this campground was a viable
business entity. The only evidence concerning the finances of the carnppround related
to the fact that ii: was purchased from the previous owners in a foreclosure proceeding
from which it can reasonably be inferred that the revenue from the campground were
insufficient to cover the debt or thait tt was not managed properly by the prior business
owners. Tolar did not present any business plan to describe the planned operation of
the campground. Tolar did not present any budget with projecied revenues and
expenses to explain how Tolar determined that a rate of pay of $40,000 per year for 81
campground manager was susiaiinable. Even thoUJgh the cannpguround had been in
operation for several months, there were no financial statements or records submitted to
demonstrate thait the economic vsaibility of this economic venture. Finally, even after
Mother was permitted to go to Mississippi over the summer and worked at the
12
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·'
cBJmpground, Mother never supplemented ihe record to demonstrate what she was
earning ait the caimpgmund. Moiher offered none of her paychecks to demonstrate that
she was aictuailly employed at fue CBlmpground and wais receiving compensation for her
work.
Mother has a G.E.D. and obtained her license to be a certified nurses' aid
(C.N.A.). When Mother was working as a C.N.A., she was earning $11.80 per hour,
which would equate into approximately $25,000 per year wage. Mother has not worked
as a C.N.A. since 2012, and Mo~er testfied that she had aillowed her C.N.A.
certification to e,cpire. Mloitoer o1ici stain her own business which involved removing
erosion control devices plaiced by the natural gas industry, and Mother testified that she
earned a net pay of $30,000 in 2015 rurming that business. Mother contended that the
•
business was no longer viable as a result of the downturn on natural gas activities in
Susquehanna Counfy.
Mother's employment in 2015 in Susquehanna County generated net income
aipproximately similar to what she will receive from her flance campground, namely she
had a net pay of $30,000 last year in Susquehanna County and obtained a new
employmeint opportunity for a sai!aineo1 position of $40,000 per year gross pay in
Mississippi. There is no sigi11ffiCSJnt dliffeu-ence in terms of income befrween her
employment in SusqLBehainna County in 2015 and her new employment in Mississippi
for 2016.
Mother contends that her prior business can no longer operate as ai result of an
economic downturn in natural gas related actovlties in Susquehanna County. The
record suggests that Mother's 2015 business employment was a result of her fiance's
:..
(
13
i .
connections within the natural gais industry. Now that his work is done here and he has
moved on to employment in Florida, Mother's business is no longer a viaible enterprise.
Aside from her cottage narural gBJs industry business in 2015, Mother admittedly
has not worked in Susquehanna County since 2012. Mother admitted ihat she made no
effort whatsoever to seek any kind of comparable employment in or around the
Susquehanna County area. Mother developed no record whatsoever as to the
employment opportunities that would be avaiilable to her in Susquehanna County. As
noted early, Mlother previously had a professional certification that allowed her to earn
approximately $25,000 per yeair- and those were wages that were paid for that position
4 years ago.7 Mother has failed to meet her burden of proof to demonstrate what her
current earning caipacity would be if she sought gainful employment in Susquehanna
County (or the surrounding area).8 See D.K.D., 141 A.3o1 at 577 (finding ihat Mother
seeking relocation had "negleci:ed to make a sincere, unencumbered effort to find
employment in Pennsylvania ... to avoid removing [the child] from his stable
environment and steady routine").
Moreover, the record is equally l8Jcking as it relates to the cost of living in
Mississippi. Mother contends thst s~e will be eaiming substantiaiily more money in I
Mississippi than she is capable off earning in Susquehanna County. As noted, Mother I
I
has not presented arny evidence of any efforts to seek employment in the Susquehanna !
7 I
For instance, Father lost his employment at Montrose Beverage over one yesir ago where he was I
earning $9.80 per hour, but Father wais able to obtain new employment at the rate of $12.80 per hour.
Assuming 40 hours per week, Father is now earning around $26,500 per year. There is no indication that I
Father had any difficulty finding new employment with substantially better pay from his previous
employment I
8
The Court recognizes that Mother has allowed her C.N.A license to expire such that she may not II
be immediately able to seek a position as a C.N.A The record fails to demonstrate that Mother would not
be capable of renewing her C.N.A. license without significant difficulty. But even assuming that Mother
could not do so, the record is still devoid of any evidence that Mother sought any employment in this ~
geographic area.
14
County area since 2012. Even if fthe Court were to consider Mother's last employment
as a C.N.A. with cm annual wage of aipprmdmately $25,000, there is no waiy for the
Court to assess the real value of $25,000 in Susquehanna County against the value of
$40,000 in Mississippi. The record lacks any evidence that would provide a meainingful
comparison between the wages when compared with the cost of Jiving in both locales.
It wais Mother's burden to present this evidence and she failed to do so. 9
Finally, the one area where Mother was able to present some evidence in
support of this factor would be that the proposed relocation would benefit Mother's
emotional quality of life. Mother is now separated from her fiance and soon to be father
of her unborn child. While it is true that Mother's proposed relocation would bring her
closer to Tolar, it would not reunite them as Tolar now works in Florida, not Mississippi,
aii11d Tolar estimaited that this work would continue for another 10 months. Tolar testified
thait he has another 6 years until he retires from his work in the natural gas industry.
There is absolutely no way to know where l olar will be assigned atter his Florida work
is completed. At fthis point, ihe Court only knows that Tolar will currently be working in
Florida while Mother would be li\ling in Mississippi mainaiging a fledgling campground
business devoid of any of her emended faimily support 10
9
Moreover, any financial gaiins associated wilth Mother's relocation would necessarily be
substantially eroded by the need for transportation to and from Susquehanna County to enable Father to
have his periods of partial custody of E.J. Father certainty lacks significant financial resources that would
allow him to regularly travel to Mississippi for purposes of seeing E.J. Mother contends that she plans on
being in Susquehanna County approximately one time per month and the costs of this amount of travel
will not be insignificant After the travel costs are factored into the calculation, Mother's new employment
does not provide a substantial financial benefit. If the cost of living in Mississippi is greater than in
Susquehanna County, then it is actually likely that there is no financial benefit from Mother's proposed
relocation.
lo Mother contends that Tolar has extended family in Mississippi that can provide her with support.
The stark reality remains that Mother and Tolar are not married. While Tolar and Mother certainly appear
committed to each other, the fact remains that Tolar's relatives are not yet Mother's relatives. To the
extent that Tolar's relatives are a support group for ttllother, this level of support is at best a neutral factor
as Mother has the same level of support svailable here in Susquehanna County from her family.
15
Counsel for Mo~her suggesteol oluaing argument that the court would be "driving a
wedge" beiween the relationship of Tolar aind Mother if relocation were not approved.
While the Court aippreciaites the difficulties of any long distance relatlonship, the fact
remains that Mother and Tolar will not be together even if relocation is approved and
Mother and E.J. will be in a wholly new geographic locanon devoid of any familial
relations. ~t is not clear what "wedge" would be driven between the parties as a result of
the denial of any proposed! relocation. Tolar knew that Mother had BJ child when he
began dating her. Tolar knew that father played a significant role in E.J.'s life. Tolar
decided to pursue a relationship with Mother knowing thait she had significant ties to
..
,.
t,
Susquehanna County that would restrict her ability to simply pick up and move to
another geograiphic airea. Likewise, Mother knew that Tolar workeo1 in the natural gas
industry and that his employment was transient from one geographic area to another
geographic area. Thus, the difficulties in Mother's relationship with Tolar were not
created by the Court - and the central issue in this custody proceeding is what is in the
best interest of E.J. - not necessairily Mother and Tolar.
In the end, this gist of this entire relocation action involves Mother's
·-.,,
understandable desire to remain in a relationship with her new flance." If counsel's
argument is accepted, the denial of relocation will result in a termination of the
relationship between Tolar and Moiher, i.e., counsel's proverbial "wedge." Of course,
Mother's counsel airgumenit aipplies with equal, if not greater force, when applied to the
relationship between Father and E.J. in that this proposed relocation would likely "drive
11
The parties became engaged in January of 2016 and Mother made the relocation decision shortly
after their engagement.
16
' ~--
:=..
a wedge" between the close relationship that Faither and E.J. now enjoy as a result of
the substennal amount ohime thait Father spends with E.J.
Mother has simply failed i:o demonstrate on this record that her new proposed
employment is a sustainaole and viable employment opportunity. The campground is a
fledging business which was just purchased out a foreclosure action. The record faiils to
disclose that any business plan has been developed or how the new business plans on
sustlining Mother's position at $40,000 per year. No budget was submitted, no monthly
finaincial statements were produced, and Mother failed to even produce a single paystub
to substantiate her c!aom regarding her employment opportunity. Moreover, the record
is li!~Irfy foli' $@®1ldL'll~
@rr IO!P)[P)©l$Dll1l~ itlhil! ll'te~@caiftieo>uu.
Mother's relocation is primarily motivated by her relationship and recent
engagement to Tolar and the need to sustain and grow that relationship.14 Mother is not
seeking to relocate in order to thwart or otherwise injure ihe relationship between Father
aind E.J. likewise, Fathers opposition to the relocation is likewise made in good faith.
Mother's proposed relocatlon wm necessarily "drive ai wedge" between the relationship
betweeu, Father and E,J. and substaintiaiHy impair the ability of E.J.'s entire extended
family to have meaningful contact with him. Thus, both parties are motivated by
appropriate reasons for their positions.
Unfortunaitely, Mother has reacted poorly to Father's opposition to the proposed
relocation. ijn one of her text messages to Father, Mother lashed out
r-
You had you weaisel lawyer file some bullshit underhanded shit saying i ;-:-·
!·
moved here when you know~ didn't, you're a dick, and jealous because I .;
aim trying to better 7 I ind my life.
(Resp. Ex. 2.) In another text message, Mother continued her tirade against Father:
You don't gjve a fuck about me or You're just a selfish prick.
You've never done ainyihing to support either one of us. You use him
becsuse you're lonely and pathetic. He's not even you're kid.
(Resp. IEx. 1.) Mother's outbursts against Father's objection to this proposed relocation
are both telling ainol problemaitic. Mother's animosity toward Father undermines the
sincerity of her motivation to relocate to Mississippi. It demonstrates that Mother has
not seriously considered the ramifications that the relocation would have upon the
relationship between Faither and E.J. These text messages demonstrate that Mother
1'
Mother's recent unplanned pregnancy has only added to her desire to be closer to Tolar, the
father of her future child.
19
...
'··
feels some level of entitlement to relocate with E.J. regardless of how it will impact the
relationship between Fatber and E.J.
Given the content aind tenor of these text messages, Mother has failed to
demonstrate that ihis factor weeghs in her favor. Therefore, this factor also weighs
~-
against any relocenon,
~~) Th~ f.0)!7'f;$felnft cS!li'll«f! [PalSt ISl!l»PJJ$1a ~omrnmo~cdl lbJJ ~ IPJ;iiiy Cli'
m li'ITll@ll'111lMI!' of fuis [Plcilriy9$ &1J(O)l!llS®~©~i!ll iirrn\dl w&llarre tlrosr~
os a 1C10>!l'llftnlllllUl@tdl ll'fi~llc @f hi'!fiil'!l"i te 1illll@ ~lhliltdl er i11711 ~roi!!.fls®di
~airiy.
There is no evidence of any abuse whatsoever by either party. As such, this
factor was not considered.
[i @) Army cfdhl$11' ffcilctllJJrtai9Je i111'1l dl
IP)tellWllOft h'I!JIUll!L'llft ®ri'Wi~D(O)Ji'1l o1 ltlhie
@M~imll1lllwL'1Joftw Dof®.
E.J. has established strong roots in Susquehanna County. E.J. is blessed to
have a large extended family in Susquehanna County - or within close driving distance
to Susquehanna County. Mother and Fattier have worked together so that E.J. bas
.,.
r:
both stability and continuity in his me. Mother testified that she would drive E.J. to
Father's residence when necessary to make sure that the relationship between E.J. and
Father was msintained. E.J. attended a loCBII pre-school, but is not yet old enough for
public schoolong. E.J. has adapted well to a schedule that allows him to hsve
suostantiel time with both parents. By aill accounts, E.J. has thrived under the current
arrangement. For this reason, this factor does not weigh in favor of either party, but
was addressed to a large degree as to why relocation is not in the best interest of E.J.
Mother has a large extended) family here in Susquehanna County. Father has a
sister who lives on close proximity - and Father's parents live in New Jersey, which
takes approximately a few hours to get to Susquehanna County. E.J. hss consistent
and meaningful contact with all of these people - and resided for a period of time with
his maternal gra.111dpaurenis. Given that Mother has a larger emended family in ,;
Susquehanna County, ainid the record demonstrates that E.J. has a very close
relationship with his maternal grandmother winh whom he resided, this factor weighs in
favor of Moiher for purposes of a custody award.
24
K.C. does not have any siblings. For this reason, this factor was not
considered .16
f?) i !$32$~~){1): ~'1T'lhi'9 we!~-Ftr® lfillti&IW to maonitmorrn ai
!C'tfDlrntQJ, $ft.i]lb)~®p C(Oll11l$0$WJ6'ilft ~Jl'il©J ii111Ulll'ltl!JllrUll'ilg li"!e~SlttfiOIT1lSil1li[PJ waftlhl
fu@ ~!hloDcdl taitdlsijll8ilfa foir fdhllVt ~!hliD~'s ®llml@ftoc1111aii ll'll!e~dl$.
Both parents haive shared in the parentat duties related to E.J., and both parents
are capable of provooling a loving, stable, consistent aind nurturing relanonshlp with E.J.
Mother aolmitted that E.J. airnd Father have a very close relationship. As such, this
factor does not weigh in favor of either party as it relates to E.J.'s emotional needs.
~1(0)] § !5il2$(;i)f1!0»: Wlhiie~ IP~L"UW ls M@re mr~lw to si~IT1l«l1
W ftlhii& «ilaio~:w 1Pihl1so«:!!~, leli'lril(Ol\'tOCIT1lalD, tdlte\+\9IC[P)rrollf tihle u-esotdlarmc~ c!Tiftne
to)lil.ribies.
Prior to Mother's relocation this past summer, the parties live in close proximity to
each other that permitted ihem to exchange E.J. on a very consistent basis. Father was .·,·
able to see E.J. based upon his work schedule which translated into approximately 50%
(or more) of the time. (Resp. Ex. 2.) As noted previously, Mother's proposed!
26
relocation would have eliminaiteo1 the ability of Father to have ihait meaningful contact
wifth E.J. and Mother's proposed partial custody schedule would not have even
approximated the ssme amcent of contact between E.J. and Father.
When Mother resides in Susquehanna County, the parties have residences that
allow for frequent custody euchanges that promote the continued development of a
strong and close relaitionship with both parents. Mother has made clear in her
relocation notice that she would only relocate if she obtained court approval, If Mother
does not relocate, ihe parties can continue to share custody in a way that allows for the
..
continued close relationship between E.J. and his parents. As such, this factor was not '
considered any further except to tile extent that it plainly weighed against relocation.
(1!2~ i tsl~l{lilM1l~): EIBlclhl fPltil!Tfy9$ mvaia~si.~n~ity to ttaill"i& for @11®
tllnH©l er ailbmttw ~c rnoairii:~ ai~!PJll'(O)[tlllrDilb clrofi~@li"Bl~ woftll'il lhwsocai~ ~<0>ll!l«l1~ftn@rr of a ~aiL"ftW'$ ~~M$®1hlo~d.
There is mo evioleroce of any mental health or physical condition or either party -
of ainy member of their household - that would negatively impact upon E.J. For this
reason, fthis factor was root considered.
The court did not consider any other factors aside from those set forth in this
opinion.
m.
Upon considering the genera! custody award factors, it is clear that Mother has
railed to demonstrate thai relocanon to Mississippi would be in the best interests of E.J.
'For the reasons set forth herein, Mother's request for relocation is denied. Given that
Mother has represented that she will not relocate if the Court denied her relocation
request, the Court will not consider a custody award based upon Mother's
representation that she will continue to live in Susquehanna County.
The record plainly demonstrates mat the parties have work well together, co-
parented and accommodated their respective schedules and obligations so that E.J.
29
.,'·
has spent suostantial periods of time with both parents. This practice must continue for
the sake of E.J.
The parties wm be aiwarded joint legal custody of E.J. Mother will be awarded
primary physical custody. Father will have substantial periods of partial custody based
upon his work scheolule. On tile days of Father's swing shift where he is 111ot working,
Father shall have partial custody of E.J. commencing on the evening prior to his first
day off and ending upon ihe evening oi the day prior to returning to work. In the event
Father's work schedule does not SJl!ow for custody exchange to occur during the
morning hours, then ~he pairties will exchange custody of E.J. the following morning.
30