Decker, E. v. Decker, B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERICALEA SORTINO DECKER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRENDAN M. DECKER : No. 2102 EDA 2021
Appeal from the Order Entered September 21, 2021
In the Court of Common Pleas of Delaware County Civil Division at
No(s): CV-2016-003940
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 21, 2022
Appellant, Ericalea Sortino Decker a/k/a Ericalea Decker Pool1(Mother),
appeals from the order denying her request to relocate to Texas with the
parties’ children, M.D. (born May 2013) and N.D. (born January 2015)
(collectively, the Children), and modifying the custody arrangement to include
increased partial physical custody of the Children’s father, Brendan M. Decker
(Father). We affirm.
By way of background, Mother and Father married in September 2010
and separated in April 2016.2 N.T., 5/26/21, at 80-81; N.T., 8/18/21, at 154.
During their marriage, they resided in Brookhaven, Pennsylvania, then moved
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* Retired Senior Judge assigned to the Superior Court.
1 Mother married T.P. (Stepfather) in December 2019.
2 The parties’ divorce was finalized in June 2018. N.T., 5/26/21, at 83.
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to Media, Pennsylvania, after the Children were born. N.T., 8/18/21, at 162-
63. Mother explained that she and Father separated as a result of Father’s
drug and alcohol issues. N.T., 5/26/21, at 80-81. Mother stated that Father
was arrested on DUI charges in January 2016 and that she later found pills in
both their home and in Father’s car. Id. She also recounted several instances
of domestic abuse and testified that she filed for an order of protection under
the Protection from Abuse Act in 2016, which was negotiated to an order of
exclusive possession of the home in Media.3 N.T., 5/26/21, at 78-79, 186-
88; N.T., 8/18/21, at 215-20.
Mother filed a petition for custody of the Children in May 2016. Under
the trial court’s interim custody order, the parties shared legal custody, Mother
had primary physical custody, and Father had increasing periods of supervised
physical custody.4 On August 23, 2017, the trial court issued an order
awarding Father partial physical custody every other weekend from Friday at
6 p.m. to Sunday at 5 p.m., as well as a mid-week custodial period as agreed
by the parties.5 Order, 8/23/17; N.T., 5/26/21, at 112, 114; N.T., 8/18/21,
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3 Father denied abusing Mother. N.T., 8/18/21, at 200.
4 The court also required Father to submit to 10-panel and ETG hair follicle
drug tests, as well as drug and alcohol and psychological evaluations. Order,
8/17/16.
5 Father’s physical custody graduated to this provision of custodial time after
a period of three months.
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at 154-56. Father and the Children maintained regular telephone contact.6
N.T., 5/26/21, at 114; N.T., 8/18/21, at 167-68.
In December of 2019, Mother, who lives in Media and works as a
neonatal nurse, remarried. N.T., 5/26/21, at 80-81, 84. Stepfather resides
in Fayetteville, Texas. Id. at 17, 84. Stepfather has shared custody of his
two children, who also reside in Texas. Id. at 11-13. He works as a railroad
engineer and firefighter in Mississippi.7 Mother indicated that although they
lived apart at the time of their marriage, the plan was for Stepfather to secure
employment in the northeast. N.T., 5/26/21, at 200, 202; N.T., 8/18/21, at
38-39. However, both she and Stepfather testified that he was unable to find
a job with comparable salary and job security.8 N.T., 5/26/21, at 51-53, 200.
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6 Father testified that, while he previously had daily telephone contact with
the Children, Mother began to limit these calls to Monday, Wednesday, and
Friday at 6 p.m. without consultation or order. N.T., 8/18/21, at 167-68.
Mother conceded that she had limited Father’s telephone contact, indicating
that the Children did not want to engage in calls with Father on a daily basis.
N.T., 5/26/21, at 243-47.
7Stepfather explained that he is employed as a railroad engineer in Jackson,
Mississippi, approximately seven hours from Fayetteville. Id. at 34-35. He
currently works six days followed by five days off. Id. at 36-37.
8 Stepfather expressed that he was originally going to transfer to another
railroad “until they had a contractual change and it affected the hourly rate
that they currently have. It essentially cut their hourly rate in half and made
it to where outside seniority districts couldn’t transfer . . . .” Id. at 51. Aside
from difficulties securing railroad employment because of salary and
employment protection issues, Stepfather also testified that he could not
secure employment as a firefighter in Pennsylvania due to his age. Id. at 67-
68.
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Stepfather acknowledged the long-distance nature of the parties’
relationship and noted that their strategy was “to communicate a lot and see
each other when we could. Communication was the biggest foundation for it.”
Id. at 42. Both Mother and Stepfather stated that Stepfather visits Mother
every two weeks and that the parties speak frequently. Id. at 83-84, 221.
However, Mother recognized that being apart is “a strain on the marriage” and
that she misses having Stepfather physically present. Id. at 83-84. Despite
their frequent contact, she observed: “[I]t’s still hard not being able to touch
each other and embrace each other.” Id. at 84. Stepfather confirmed the
current arrangement is a “stressor” and that travel is “difficult.” Id. at 15-16.
He further admitted that travel to Pennsylvania causes him to sacrifice time
with his own children. Id. at 15.
Mother filed a notice of intent of relocation and a petition for relocation
to Weimar, Texas and enrollment of the Children in St. Anthony’s School on
October 22, 2020. N.T., 5/26/21, at 44, 57, 247-49. On November 10, 2020,
Father, who resides in Wilmington, Delaware and works as an accountant,9
filed a counter-affidavit in opposition.10 N.T., 8/18/21, at 152-53.
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9 In addition to the residence Father shares with his fiancée, their son, and his
fiancée’s son, Father maintains an apartment in Newark, Delaware. N.T.,
8/18/21, 61-62.
10 Mother additionally filed a petition to modify custody on May 20, 2021 “out
of an abundance of caution,” given the request for relocation. N.T., 5/26/21,
at 7-8.
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On December 13, 2020, after Father told Mother that he was unable to
transport the Children, Mother became concerned that Father was under the
influence. Mother arrived at Father’s apartment and found the Children crying
and Father on the floor, unable to sit up. Id. at 26-27, 115-16. The only light
in the apartment was from the Christmas tree, and Mother stated that the
apartment was “superhot” and the Children felt warm. Id. at 116. As a result,
Mother filed an emergency custody petition to suspend Father’s custodial
access on December 15, 2020. N.T., 5/26/21, at 115.
After convening a hearing on Mother’s emergency petition on January
8, 2021, the trial court held its decision in abeyance. The court further
required Father’s physical custody be supervised by his parents or fiancée and
ordered 15-panel and ETG hair follicle drug tests, as well as a drug and alcohol
evaluation to be performed by Dr. V. Richard Roeder. Order, 1/20/21; N.T.,
5/26/21, at 122-23. Hair follicle testing revealed the presence of valium, for
which Father did not have a prescription, as well as the presence of alcohol at
an amount approximately ten times the screening cutoff. N.T., 5/26/21, at
122-23; N.T., 8/18/21, at 191, 256-58. Additionally, in his evaluation, Dr.
Roeder found moderate alcohol consumption equivalent to Father consuming
18-20 drinks per week and recommended that Father enroll in an intensive
outpatient program. N.T., 5/26/21, at 239-40; N.T., 8/18/21, at 256-57, 261.
On February 4, 2021, Mother filed an emergency custody petition for
contempt in which she alleged that, based on Stepfather’s surveillance, Father
exercised his custody without supervision, contrary to the custody order. N.T.,
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5/26/21, at 30-32, 127-29. The trial court scheduled a hearing regarding
Mother’s pending emergency petitions, but in the interim, Mother reported an
incident on February 21, 2021, where Father was hospitalized due to an eye
infection and an alcohol withdrawal seizure while the Children were in his
custody. Id. at 129-36.
On March 3, 2021, following a hearing, the trial court modified its August
2017 order and stated that Father’s periods of physical custody must be
supervised by his parents on the weekends and by his fiancée mid-week. The
court further directed Father to install a Soberlink alcohol monitoring device11
for use at pick-up and drop-off and to undergo urine testing every other week.
Order 3/9/21; N.T., 5/26/21, at 136-37.
The trial court conducted hearings on May 26, 2021 and August 18,
2021, on Mother’s proposed relocation and petition for modification of
custody. Both Mother and Father were represented by counsel and each
testified on their own behalf. The court also heard testimony from Stepfather,
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11Father described Soberlink as “a handheld alcohol monitoring device where
you blow into it. It takes a real-time picture of your face and alcohol level
content, if any, when you blow in it. . . .” N.T., 8/18/21, at 189.
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the Children’s paternal grandmother, R.M.D., and Father’s fiancée. The court
also spoke with the Children, in camera, on August 18, 2021.12, 13
At the time of the hearing, Mother sought to relocate with the Children
to Fayetteville, Texas and to continue homeschooling.14 N.T., 5/26/21, at 25,
44-45, 57, 70, 95-97, 148, 211, 248-49. Mother further indicated her
intention not to work. N.T., 5/26/21, at 156, 172-73; N.T., 8/18/21, at 53.
If the court granted the requested relocation, Mother proposed flying the
Children back from Texas at her expense once a month around federal
holidays for Father to exercise his custodial time over an extended weekend.
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12Neither party was present and counsel for both parties agreed to waive their
presence during the court’s interview with the Children. N.T., 8/18/21, at
291. M.D., who was eight years old at the time, testified to liking school in
Media and confirmed not wanting to relocate to Texas. Id. at 298, 302, 305.
N.D., who was six years old, testified that he thought he would like Texas
because they could go to the waterpark and get ice cream. Id. at 311-12.
He admitted that he would be sad about not seeing his father and
grandparents as much. Id. at 314-15.
13 The parties additionally presented, and the court admitted, numerous
exhibits. While not included with the certified record, we do not find this
omission detrimental to our review given the testimony related to the exhibits.
We admonish counsel that, “Appellant has the responsibility to make sure that
the record forwarded to an appellate court contains those documents
necessary to allow a complete and judicious assessment of the issues raised
on appeal.” Commonwealth v. Wint, 730 A.2d 965, 967 (Pa. Super. 1999)
(citations and quotation marks omitted); see also Pa.R.A.P. 1921 Note
(stating that “[u]ltimate responsibility for a complete record rests with the
party raising an issue that requires appellate court access to record materials”
(citation omitted)).
14Mother homeschooled the Children since March or April 2020 because M.D.
had difficulties with virtual learning required by the COVID-19 pandemic.
N.T., 5/26/21, at 84, 95, 97, 192-94; N.T., 8/18/21, at 44, 59.
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She suggested providing Father with extended time during the summer and
holidays. N.T., 5/26/21, at 169-170; N.T., 8/18/21, at 49-51, 68, 78-79.
Mother testified that she would not move to Texas without the Children if the
court denied her relocation request. N.T., 5/26/21, at 177; N.T., 8/18/21, at
27-28.
Both Mother and Stepfather acknowledged that relocation would serve
to alleviate the stress on their relationship and testified that their goal was to
raise their children together in the same home. N.T., 5/26/21, at 24, 176-77,
234; N.T., 8/18/21, at 37, 51, 55-56.15 However, Mother admitted that, even
if the relocation were granted, there would still be periods of time where
Stepfather would be away from home due to his work in Mississippi.16 N.T.,
8/18/21, at 53-55.
Father testified that he has been sober since March 2021. N.T.,
8/18/21, at 188, 192, 263. By way of corroboration, he noted that all
Soberlink and urinalysis results since March 2021 were negative. Id. at 188-
91, 192-93. He also testified that he was engaged in treatment. Id. at 195-
96, 199-200, 261-64. Although Mother expressed concerns regarding
Father’s long-term sobriety, Mother acknowledged his current sobriety and
negative test results. N.T., 5/26/21, at 137-40, 222, 240-42.
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15 Mother acknowledged that relocation would allow Stepfather to spend more
time with his children as well. N.T., 5/26/21, at 173; N.T., 8/18/21, at 56.
Stepfather did report the possibility of a transfer to Texas due to a railroad
16
merger. N.T., 5/26/21, at 66.
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Father stated that he has only missed one mid-week custodial period.
N.T., 8/18/21, at 226-29. He noted that he had a strong relationship with the
Children, and that the Children had a bond with both his extended family and
Mother’s extended family. N.T., 8/18/21, at 158-59, 163-64, 171, 177-79,
204-06. Father’s fiancée and Mother also confirmed this testimony. Id. at
88, 90-93, 122-23, 116-18. Further, Mother acknowledged that the Children
had a good relationship and “adventures” with Father. N.T., 5/26/21, at 102,
167, 222. Father opposed any reduction in his custodial time with the Children
and rejected the monthly proposal. Id. at 177.
Specifically, Father explained:
I want to be there to watch them grow up. They are six and eight
years old. They need their father. They need me to develop and
just provide the love and affection that I do every single time that
I’m with them and vice versa. . . . I’ve been fighting so long just
to get more time with them. . . . I want to be with my kids. I want
to nurture them. I want to do what a father does and is supposed
to do. I want the relationship I have with my father with them . .
. . I’m not going to be able to do it when they’re in Texas. I mean,
that’s what it boils down to. I love them[. F]amily and children
are everything to me.
Id. at 210-11.
After the hearing, but before the trial court issued its final custody order,
the court issued an order directing that the parties to immediately enroll the
Children in the Rose Tree-Media School District, which is located in Delaware
County, Pennsylvania. On September 8, 2021, the court suspended the prior
requirements of weekly urine testing and supervision imposed upon Father.
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On September 21, 2021, the trial court denied Mother’s request for
relocation and her petition to modify the custody arrangement. The court
awarded the parties shared legal custody and gave Mother primary physical
custody with partial physical custody to Father. The court stated that during
the school year, Father would have physical custody of the Children three
weekends in a row from school pick-up on Friday to school drop-off on
Monday, as well as a weekly dinner visit from school pick-up to 8:00 p.m. to
be determined by agreement. During the summer, the court established an
alternating weekly schedule with exchanges on Sundays at 6:00 p.m.
The trial court also established a visitation and holiday schedule. Among
other provisions, the court prohibited Father from consuming alcohol or non-
prescription drugs or medication during his custodial time, required him to
utilize Soberlink during custodial exchanges,17 and to continue attending
Alcoholics Anonymous.
The trial court issued findings of fact and conclusions of law in which it
addressed and analyzed both the relocation and custody factors. In rendering
its decision, the trial court emphasized that Mother knowingly entered into a
long-distance marriage with Stepfather, and that she subsequently wanted to
relocate to Texas so the couple could raise her children and stepchildren
together. Am. Findings of Fact and Conclusions of Law, 9/23/21, at 36-38.
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17 Rather than requiring the immediate submission of results, the court
ordered Father to maintain results and submit them to Mother and counsel
upon reasonable request.
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Importantly, the trial court noted that Stepfather would continue to work in
Mississippi, which would keep him away from home for periods of time. Id.
at 38. The court acknowledged the Children’s relationships with Father, their
paternal half-brother, and extended family, including paternal grandparents,
and the importance of maintaining these relationships. Id. at 28, 34-39.
While recognizing Mother’s concerns about Father’s substance abuse, the
court also noted Father’s compliance with Soberlink and urinalysis, all of which
have yielded negative results, and cooperation with prior provisions of
supervision. Id. at 32-33.
On October 12, 2021, Mother timely filed a notice of appeal and
simultaneously filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed a responsive
opinion on November 18, 2021.
On appeal, Mother raises forty issues. For ease of analysis, we have
reduced them to three categories:
1. Mother contends that the trial court committed an error of
law and abused its discretion in finding that it was in the
Children’s best interests to modify the custody order and
deny her petition for relocation.
2. Mother contends that the trial court committed an error of
law and abused its discretion by modifying Father’s periods
of custody sua sponte, and that this modification violated
her right to due process.
3. Mother contends that the trial court committed an error of
law and abuse of discretion in finding any of Father’s
testimony credible, and by denying Mother’s request to
present evidence regarding Texas schools.
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Mother’s Brief at 4-14.18
Mother’s Rule 1925(b) Statement
Before addressing Mother’s claims, we must determine whether her
issues have been properly preserved for our review. Father argues that
Mother’s Rule 1925(b) statement is repetitive, vague, voluminous and, thus,
leads to a justifiable inference that none of the issues raised are meritorious.
Father’s Brief at 8-12.
Our Supreme Court has explained that raising a large number of issues
is not effective appellate advocacy and is “borderline abuse of the legal
system[.]” Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa.
2004). The Court stated that, “multiplying assignments of error will
dilute and weaken a good case and will not save a bad one.” Id. (emphasis
in original) (citation omitted).
With respect to waiver, this Court has explained:
Our law makes it clear that Pa.R.A.P. 1925(b) is not satisfied by
simply filing any statement. Rather, the statement must be
“concise” and coherent as to permit the trial court to understand
the specific issues being raised on appeal. Specifically, this Court
has held that when appellants raise an “outrageous” number of
issues in their 1925(b) statement, the appellants have deliberately
circumvented the meaning and purpose of Rule 1925(b) and have
thereby effectively precluded appellate review of the issues they
now seek to raise. We have further noted that such “voluminous”
statements do not identify the issues that appellants actually
intend to raise on appeal because the briefing limitations
contained in Pa.R.A.P. 2116(a) makes the raising of so many
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18In her brief, Mother addresses these errors “under three sections related to
the following arguments: I. Petition to Modify Custody, II. Petition for
Relocation, and III. Evidentiary Record.” Mother’s Brief at 4.
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issues impossible. Further, this type of extravagant 1925(b)
statement makes it all but impossible for the trial court to provide
a comprehensive analysis of the issues.
Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007) (citations
omitted, formatting altered).
Here, Mother’s eight-page Rule 1925(b) statement includes forty points
of alleged trial court error. However, Mother’s voluminous Rule 1925(b)
statement does not impede our appellate review. While not necessarily clear
and concise, we are able to discern Mother’s purported allegations of error, as
was the trial court in its opinion filed on November 18, 2021.19
Therefore, we will address Mother’s claims.20
Modification of Custody Order and Denial of Relocation
Mother’s first set of issues challenge the trial court’s order modifying the
existing custody order and awarding Father additional custodial time.
Specifically, Mother argues that the trial court’s decision was contrary to the
Children’s best interests and against the weight of the evidence. Mother’s
Brief at 26-28. In support, Mother notes that Father has a history of alcohol
and substance abuse that was serious enough to require court-ordered
monitoring. Id. at 26-27. Mother argues that, historically, Father exercised
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19 We remind counsel that a Rule 1925(b) statement “must be ‘concise’ and
coherent as to permit the trial court to understand the specific issues being
raised on appeal.” Tucker, 939 A.2d at 346.
20 As noted previously, Mother addresses her alleged errors in three sections,
including (1) the trial court’s denial of her petition to modify custody, (2) her
petition for relocation; and (3) the evidentiary record. See Mother’s Brief at
4. Therefore, we will address Mother’s arguments in that order.
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limited and supervised physical custody. Id. at 27. Additionally, she contends
that the increase in Father’s custodial time erodes the Children’s stability and
limits her ability to provide for their educational, medical, and social needs.
Id. at 27-28.
Mother also challenges the trial court’s determinations regarding certain
custody and relocation factors. Id. at 28-41. Mother contends that Father’s
involvement with the Children has been limited and that she has been the
Children’s primary physical custodian, providing for all of their educational,
medical, social, and emotional needs, nurturing them and affording them
stability. Id. at 28-32, 38. Mother asserts that Father’s extended family is
not nearby and “historically has not been part of the [C]hildren’s lives until
they were needed as custodial supervisors due to Father’s addiction issues.”
Id. at 31-32. She blames Father for any conflict, stating, “[I]t is Father’s
misrepresentations, abuse of alcohol and non-prescription medications and his
concealing the same, which have given Mother a viable a palpable suspicion
as to Father’s credibility to parent.” Id. at 33. She maintains that her quality
of life would be “significantly enhanced” as a result of relocation due to her
“ability to stay home with the [C]hildren, to home school them and to have
more quality time with the [C]hildren.” Id. at 40. She suggests such
improvement would thereby positively impact the Children. “[I]mproving
Mother’s quality of life and the overall enhancement of the relationship with
Mother and her husband would of necessity and by implication improve the
[C]hildren’s quality of life.” Id. at 41. Moreover, Mother asserts that her
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proposal would provide Father the same amount of overnights per month with
her being responsible for transportation. Id. at 39-40.
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. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).
This Court has consistently held that
the 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.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
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as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. “The best
interests standard, decided on a case-by-case basis, considers all factors
which legitimately have an effect upon the child’s physical, intellectual,
moral[,] and spiritual well-being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa.
Super. 2006) (citation omitted). Section 5328(a) sets forth the best interest
factors that the trial court must consider in awarding custody. See E.D. v.
M.P., 33 A.3d 73, 79-80 n.2 (Pa. Super. 2011).
Section 5328(a) of the Act provides 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) (relating
to consideration of child abuse and involvement with protective
services).
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(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
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).
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Where a request for relocation of a child along with a parent is involved,
the trial court must also consider the following relocation factors set forth
within Section 5337(h) of the Act:
(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.
(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.
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(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).
Further, with regard to the custody and relocation factors, we have
stated:
All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.
Section 5337(h) requires courts to consider all relocation factors.
The record must be clear on appeal that the trial court considered
all the factors.
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.[] § 5323(d). Additionally, [S]ection
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.
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. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (some citations omitted,
formatting altered).
Regarding the custody and relocation factors, this Court has determined
that the trial court is required to consider all the applicable factors. J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). Although the trial court is
required to give “weighted consideration to those factors which affect the
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safety of the child” pursuant to 23 Pa.C.S. § 5328(a) and 23 Pa.C.S. §
5337(h), this Court has acknowledged that the amount of weight a trial court
gives any one factor is almost entirely discretionary. M.J.M. v. M.L.G., 63
A.3d 331, 339 (Pa. Super. 2013).
Critically, we have explained that
it is within the trial court’s purview as the finder of fact to
determine which factors are most salient and critical in each
particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa.
Super. 2010) (“In reviewing a custody order . . . 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.”).
Id.Absent an abuse of discretion, we will not disturb a trial court’s findings
of fact or determinations regarding witness credibility or the weight of the
evidence. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527. As
we stated in King v. King, 889 A.2d 630 (Pa. Super. 2005), “[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, [giving] due deference to the trial court’s weight and credibility
determinations,’ the trial court erred or abused its discretion . . . .” King v.
King, 889 A.2d at 632 (citation omitted).
Here, in its amended findings of fact and conclusion of law, the trial
court addressed and analyzed the custody factors pursuant to Section 5328(a)
and relocation factors pursuant to Section 5337(h). Am. Findings of Fact and
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Conclusions of Law at 26-39. The court determined that custody factors 6 and
13 favored Father, and custody factor 15 favored Mother. The court found
that the remaining custody factors favored both or neither party. Id. at 26-
33. With respect to the relocation factors, the court concluded that factors 2,
3, 5, and 6 favored Father, and relocation factor 4 favored Mother. The court
further found that relocation factor 1 favors both parties. Id. at 34-39.
Upon review of the evidence, the trial court determined that relocation
would benefit Mother, but it would not benefit the Children. The trial court
explained that relocation would deprive the Children of their relationships with
Father, their paternal brother, and both their maternal and paternal extended
families. Id.
Specifically, the trial court explained:
. . . . Mother was fully aware of the circumstances regarding
distance prior to her marriage since she met her husband in Texas
on her vacation. It is not in the best interests of the [C]hildren to
now be shuttled to Texas simply because Mother and her husband
are frustrated with the stress of their long[-]distance relationship.
Importantly, Mother’s desire to have her children grow up with her
husband’s children does not outweigh the bond that they have not
only with their Father but also with their younger brother. Mother
testified that she would homeschool her children upon relocation
which is exactly what she has been doing until the recent order to
return to public school. Therefore, the relocation to Texas would
not have improved their educational prospects. Also, if Mother
were to relocate the [C]hildren to Texas and stop working outside
the home, the [C]hildren would not have had any more time with
her than they have been or do now. The benefit of not working
would solely be to Mother. Mother’s motivation is clearly for her
own comforts and those of her husband and not in any way related
to the best interests of the [C]hildren.
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Id. at 38.
Although the trial court recognized Father’s issues with substance
abuse, the court noted Father’s continued compliance with Soberlink and
urinalysis testing, which have yielded negative results, and Father’s
cooperation during the period of time where he was only allowed supervised
visits with the Children. Id. at 32-33.
Further, with respect to the trial court’s decision to increase Father’s
custodial time with the Children, the court explained:
[This court] considered all evidence presented, including Father’s
substantial work towards sobriety, the close and loving bond
between Father, the [C]hildren, and their younger paternal
brother, and Father’s willingness to assume primary custody.
Father testified that he wants to be present for his children
growing up, that they need him to develop and to provide them
with love and affection. Father further testified that in five years
he has never missed a day of visitation with his children except
for one mid-week dinner visit. Father credibly demonstrated a
desire to be as involved as possible in the [C]hildren’s lives and to
have as much contact with them as possible.
Trial Ct. Op., 11/18/21, at 18 (unpaginated).
With respect to relocation, the trial court recognized that although
Mother would benefit from the relocation, the Children would not. Specifically,
the court explained:
The record supports the finding that relocation of the [C]hildren
to Texas is not in the best interests of the [C]hildren and would
not improve their general quality of life. Mother made a decision
to marry a gentleman who at the time of their courtship and
marriage lived in Texas. She made that decision fully aware of
the difficulties that a potential long-distance relationship could
present. [Stepfather] is absolutely unwilling to take a substantial
pay cut to live with his wife, to move closer to Pennsylvania
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without a pay cut, and to leave his Texas[-]based family and
children. Mother supports his position and is willing to uproot her
children a substantial distance away from their Father, younger
brother, maternal and paternal extended family members,
community, and school.
Mother failed to articulate any improvement to the [C]hildren’s
lives sufficient to warrant relocation to Texas. She attempted to
address this issue by testifying that upon relocation she would no
longer work outside the home (at present she is a full-time
registered nurse)[,] however, the amount of time that she would
spend with them would not differ from the amount of time that
she spends with them here in Delaware County. At present,
Mother works an overnight nursing shift, and the [C]hildren have
in home babysitting care. Although there are definite benefits to
children having a parent who does not work outside the home,
such a situation would not change or improve the lives of these
particular children based on that reason — their time physically in
their Mother’s presence would be almost identical to the time that
they have at present. Therefore, Mother not working outside of
the home poses no improvement to the [C]hildren’s lives and was
deemed by the [t]rial [c]ourt to be insufficient to warrant
relocation.
Neither Mother nor [Stepfather] testified as to any financial
difficulties within the two households, just that they preferred not
to live separate and apart. Mother has determined that the best
way to address their finances is for her and the [C]hildren to live
in Texas, eliminate the expenses of her home in Delaware County
and to depend on [her husband]’s income alone. This idea makes
sense since the cost of living is lower in Fayetteville, however, with
the two incomes that the couple presently has they are able to
afford the separate homes. The [t]rial [c]ourt admits in its
analysis of the relocation factors that relocation would certainly
improve Mother’s overall quality of life[,] however[,] the [t]rial
[c]ourt was hard[-]pressed to identify any improvement to the
[C]hildren’s lives.
Although Mother’s desire to create a new family unit with her
husband’s children is a reasonable idea, this [t]rial [c]ourt could
not ignore the already existing bond that the [C]hildren have with
their younger brother. The sibling bond between the [C]hildren
and their younger brother outweighs their potential relationship
with Mother’s stepchildren and is sufficient, coupled with other
factors, to deny relocation.
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Mother further testified that she would fly the [C]hildren once a
month to the Philadelphia area for Father to have custodial time
as well as extended periods of time during school breaks.[21] The
[c]ourt did not find Mother’s stated likelihood to engage in this
plan credible in light of the past animosity between the parents
and her ongoing contempt for Father’s parenting skills. As the
[t]rial [c]ourt acknowledged in its Findings of Fact and Conclusion
of Law, Father’s sobriety was carefully scrutinized as a factor
affecting his parenting capacity and same was taken into account
by this court when determining an appropriate physical custody
schedule in light of Mother’s request for relocation. This [t]rial
[c]ourt acknowledged that Father has had difficulties with
substance abuse in the past[,] however[,] this [t]rial [c]ourt did
not find that Father should be effectively punished through
relocation. The [t]rial [c]ourt found that there were sufficient
safeguards in place to as reasonably as possible provide for the
safety of the [C]hildren while in Father’s care. The [t]rial [c]ourt
further found that Father had complied with prior court orders
regarding supervision, Soberlink[,] and urine testing and that he
understood the important relationship between his sobriety and
the [C]hildren’s safety.
Id. at 7-9 (unpaginated). Hence, these issues are without merit.
Based on our review of the record, we discern no abuse of discretion by
the trial court in granting Father additional custodial time with the Children
and denying Mother’s relocation petition. In concluding that additional
custodial time with Father was in the Children’s best interest, the court
emphasized that it would not disturb the Children’s educational or extra-
curricular activities, nor would it interfere with Mother’s duties. Id. at 18-19.
The trial court analyzed and addressed each factor as required by Section
____________________________________________
21 The trial court further found such frequent travel not in the Children’s best
interests. Trial Ct. Op. at 16 (unpaginated); see also Am. Findings of Fact
and Conclusions of Law at 35.
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5328(a) in establishing its custody order, including Father’s additional partial
custodial time, as well as the factors required by Section 5337(h). See 23
Pa.C.S. § 5328(a); see also E.D., 33 A.3d at 79-80 n.2; see also J.R.M., 33
A.3d at 652.
To the extent Mother challenges the weight attributed to any factor by
the trial court, we likewise find no abuse of discretion. As stated above, the
amount of weight that a trial court gives to any one factor is almost entirely
within its discretion. See M.J.M., 63 A.3d at 339. Instantly, the trial court
analyzed and addressed each of the custody and relocation factors pursuant
to Section 5328(a) and Section 5337(h). See Am. Findings of Fact and
Conclusions of Law at 26-39. Further, the trial court’s findings and
determinations regarding the custody and relocation factors set forth in
Section 5328(a) and Section 5337(h) are supported by competent evidence
in the record. Therefore, we will not disturb them.22 See C.R.F., 45 A.3d at
443; see also E.R., 129 A.3d at 527.
____________________________________________
22 To the extent that Mother challenges the trial court’s inference that she
would not comply with the terms of an order as to Father’s custody if relocation
were granted, we conclude that the trial court made its credibility
determination related to relocation factor 3 (23 Pa.C.S. § 5337(h)(3)). This
factor concerns 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, we
conclude that this finding is supported by record.
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Modification of Custody Order Sua Sponte
Mother also argues that the trial court erred in modifying Father’s
custody order sua sponte and, in so doing, violated her right to due process.
Mother’s Brief 24-26. Mother contends that she “was not afforded the required
notice sufficient to ensure she had the opportunity to prepare and thereafter
properly advocate her opposition to Father’s custody modification, separate
and apart from the relocation requested.” Id. at 26. In so arguing, Mother
likens the situation to that where an order is improperly modified as a result
of a contempt filing. Id. at 25.
“Due process requires nothing more than adequate notice, an
opportunity to be heard, and the chance to defend oneself in an impartial
tribunal having jurisdiction over the matter.” In re J.N.F., 887 A.2d 775, 781
(Pa. Super. 2005) (citation omitted). “Due process is flexible and calls for
such procedural protections as the situation demands.” In re Adoption of
Dale A., II, 683 A.2d 297, 300 (Pa. Super. 1996) (citations omitted).
Concerning Mother’s claim that the modification of custody is
tantamount to the trial court finding contempt, where a petition to modify had
not been filed, we note that this Court has stated:
In addition to the foregoing, we emphasize that Father’s due
process rights were violated by the actions taken by the court,
because Father had no notice that custody would be at issue in
the proceedings. Notice, in our adversarial process, ensures that
each party is provided adequate opportunity to prepare and
thereafter properly advocate its position, ultimately exposing all
relevant factors from which the finder of fact may make an
informed judgment. Without notice to the parties that custody
was at issue, the trial court could not assume that the parties
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ha[d] either sufficiently exposed the relevant facts or properly
argued their significance. Consequently[,] neither we nor the trial
court can make an informed, yet quintessentially crucial judgment
as to whether it was in the best interests of the [child] involved to
give sole legal [and physical] custody to the mother.
Langendorfer v. Spearman, 797 A.2d 303, 309 (Pa. Super. 2002) (citations
and quotation omitted). However, where there is notice that custody is at
issue, we have upheld modification. See C.A.J. v. D.S.M., 136 A.3d 504, 509
(Pa. Super. 2016) (stating that “[b]ased on our review of relevant case law,
we conclude that if the parties had notice that custody would be at issue, the
court is permitted to modify custody without a pending petition for
modification”).
Instantly, Mother filed a request for relocation as well as a petition to
modify. Pet. for Relocation, 10/22/20, at 1-4 (requesting relocation and
award of primary physical custody); Pet. to Modify Custody, 5/20/21, at 1-2.
Therefore, Mother put the issue of custody before the court and therefore had
notice. Accordingly, we find no due process violations, and no error in
modifying Father’s partial physical custody. Accordingly, Mother is not entitled
to relief.
Evidentiary Claims
Mother’s remaining issues challenge the evidence supporting the trial
court’s conclusions. Mother’s Brief at 41-43. First, Mother contends that the
trial court erred in finding any of Father’s testimony credible under the
doctrine of false in one, false in all. Mother’s Brief at 41-43.
As this Court has explained:
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“False in one, false in all” is a concept for assessing the weight of
evidence. The maxim is simply a translation of the Latin phrase
“falsus in uno, falsus in omnibus.” It currently means that a jury
may disregard the testimony of a witness if the jury believes that
witness deliberately, or willfully and corruptly, testified falsely
about a material issue.
Commonwealth v. Vicens-Rodriguez, 911 A.2d 116, 117 (Pa. Super.
2006) (footnote omitted and formatting altered). This Court has further
stated:
The maxim has been limited, qualified, criticized, and, in a sense,
rejected by both authors and courts, so that what remains might
be stated thus: When a fact finding body concludes that a witness
has deliberately falsified in his testimony on a material point this
should be taken into consideration, along with many other tests,
in determining what credence should be given to the balance of
his testimony.
Id. at 118-19 (citation omitted). Therefore, “the court or jury needs to look
at the testimony of the particular witness as a whole and the evidence in
entirety to determine what to believe and what not to believe.” Id. at 119.
Pointing to a prior emergency hearing where the trial court found Father
not credible23 under the doctrine of false in one, false in all, Mother asserts
that trial court should not have found Father’s testimony credible nor given it
____________________________________________
23At a hearing on January 8, 2021, the trial court made specific findings that
Mother testified credibly, even though Mother did not have direct evidence of
what had occurred before she entered the apartment. N.T., 1/8/21, at 92.
The trial court found Father’s testimony that he was on the floor because he
was “playing a game” incredible. Id. Accordingly, the trial court ordered a
hair follicle test and held its decision on suspension of his custody under
advisement. Id.- 28 -
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any weight. Id. Notably, Mother concedes that this doctrine is not
mandatory. Id. at 41 (citations omitted).
While acknowledging that it previously found Father’s testimony not
credible, the trial court stated:
. . . . Unlike at the March 2021 hearing,[24] the [t]rial [c]ourt found
Father at trial to be forthcoming, honest, and willing to accept
responsibility for his past mistakes, namely the alcohol abuse.
The [t]rial [c]ourt also found that he was capable of and willing to
work towards providing a safe and sound environment for the
children. The [t]rial [c]ourt also determined the credibility of
Father’s testimony in light of the supporting documentary
evidence of the negative urine test results and Soberlink check
ins. In light of these credibility assessments, the [t]rial [c]ourt
made an informed decision as to Father’s credibility and the
weight appropriately given to his testimony.
Finally, the doctrine of “False in One/False in All” is not a mandate
upon a factfinder but only provides for what it may do, not what
it must do or must not do. This [t]rial [c]ourt has the discretion,
to believe all, part, or none of the witness’s testimony and make
its own independent assessment of the importance of any and all
testimony.
Trial Ct. Op. at 11-12 (unpaginated).
On this record, we agree with the trial court’s conclusions, accordingly,
Mother is not entitled to relief on this issue.
In her second evidentiary claim, Mother argues that the trial court erred
by denying her request to present evidence regarding the quality of schools
in Texas, as compared to schools in Pennsylvania. Mother’s Brief at 43-44.
____________________________________________
24 While the trial court and Mother both referred to the March 2021 hearing,
it appears that they intended to reference the January 8, 2021 hearing, given
the court’s discussion of Father’s credibility at page 28, n.23.
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She argues that although the trial court deemed the information irrelevant,
Father was permitted to inquire about the Texas school system, and therefore
the trial court erred by not permitting Mother to present evidence regarding
the schools. Id.
In its Rule 1925(a) opinion, the trial court concluded that Mother waived
her claims concerning the comparative quality of the schools. Trial Ct. Op. at
13-14 (unpaginated). The trial court notes that Mother agreed with it as to
the lack of relevance given her intention to continue homeschooling the
Children. Id. at 13 (unpaginated). Father disagreed to the homeschooling,
therefore the trial court allowed Father’s counsel to cross examine Mother.
Id. Although the trial court permitted Mother to introduce further relevant
evidence, counsel chose not to present additional evidence regarding the
Texas school system. Id. at 13-14 (unpaginated). Accordingly, the trial court
concluded that Mother waived this issue. Id.
Our review of the record confirms the trial court’s reasoning; therefore
we agree with the trial court that Mother waived these claims.
The record reveals that the trial court allowed further questioning by
Father’s counsel regarding the schools, but the trial court also gave Mother’s
counsel the opportunity to introduce additional evidence which counsel did not
pursue. N.T., 8/18/21, at 8-10. Accordingly, Mother waived these claims.
See Pa.R.A.P. 302(a) (providing for waiver of issues not first raised in lower
court). Accordingly, Mother is not entitled to relief.
For the foregoing reasons, we affirm the trial court’s order.
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Order affirmed.
Judge Sullivan joins the memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2022
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