K.G. v. J.G. ( 2020 )

J-A12038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.G. : No. 1900 WDA 2019
Appeal from the Order Entered December 3, 2019,
in the Court of Common Pleas of Allegheny County,
Family Court at No(s): FD17-007652-017.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 17, 2020
Appellant K.G. (Mother) appeals the trial court’s order denying her
petition to relocate with the Children (seven-year-old A.G. and five-year-old
E.G.) from Allegheny County to California. Mother sought to relocate after
she lost her job in Pennsylvania, but then found a “once-in-a-lifetime”
employment opportunity working in the tech industry near San Francisco.
Appellee J.G. (Father) objected to the relocation. On appeal, Mother argues,
inter alia, that the trial court misapplied the burden of proof section of
Pennsylvania’s relocation statute, 23 Pa.C.S.A. § 5337(i), by imposing upon
her the additional burden of proving she took steps to prevent the relocation.
After careful review, we agree and remand for further analysis.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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The record discloses the following relevant factual and procedural
history. The parties met in Indiana, wed in June 2011, and continued to live
in Indiana after their two Children were born. In October 2016, the family
moved to a suburb of Pittsburgh because Mother desired to be closer to her
family. When the parties left Indiana, both were able to keep their
employment by working remotely. A few months later, in January 2017, the
parties separated. In May 2017, the parties reached a custody agreement.
On paper, Mother received primary physical custody, subject to Father’s
partial custody of alternate weekends with at least one custodial period during
the off week. In reality, because the custody arrangement included a right-
of-first-refusal clause, Father actually exercised more custody time whenever
Mother traveled for work. Father was also active in the Children’s extensive
extracurricular activities.
In February 2019, Mother lost her job after her company was sold.
Mother quickly obtained new employment with a California company. The new
job came with a “tremendous” increase in compensation, but it required
Mother to move to the San Francisco region. In March 2019, Mother filed a
notice of proposed relocation, to which Father timely objected. In August
2019, Father filed a petition for custody modification. The court held a hearing
on October 15, 2019. On December 2, 2019, the court denied Mother’s
request to relocate. This timely appeal followed. Mother presents six issues
for our review:
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1. Did the trial court err, and abuse its discretion, in
denying [Mother’s] relocation with the [Children]
by placing an additional burden on [Mother] to
explore every possible avenue for employment,
even at a lower salary outside of her field, rather
than relocate for a once-in-a-lifetime job offer?
2. Did the trial court err, and abuse its discretion,
denying the relocation of the [Children] by failing
to find that [Mother’s] proposed custody schedule
upon relocation could compensate for the distance
between the parties upon said relocation where
Father has only exercised 30% physical custody to
date?
3. Did the trial court err, and abuse its discretion, in
denying [Mother’s] relocation with the [Children]
by failing to find that the proposed relocation would
enhance the [Children’s] quality of life?
4. Did the trial court err, and abuse its discretion, in
denying [Mother’s] relocation with the [Children]
by concluding that the [Children’s] relocation
would not likely have a positive impact on their
emotional development?
5. Did the trial court err, and abuse its discretion, in
its conclusion denying the relocation of the
[Children] with [Mother], as the conclusion was
unreasonable in light of sustainable findings of the
trial court?
6. Did the trial court err, and abuse its discretion, in
denying the relocation of the [Children] with
[Mother], as that conclusion was unreasonable
based upon the evidence of record.
Mother’s Brief at 16-17 (superfluous capitalization omitted).
We start by observing our well-settled standard of review:
Our scope is of the broadest type and our standard is abuse
of discretion. This Court must accept findings of the trial
court that are supported by competent evidence of record,
as our role does not include making independent factual
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determinations. In addition, with regard to issues of
credibility and weight of the evidence, this Court must defer
to the trial judge who presided over the proceedings and
thus viewed the witnesses first hand. However, we are not
bound by the trial court's deductions or inferences from its
factual findings. Ultimately, the test is whether the trial
court's conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012) (citations omitted).
However, issues of statutory interpretation are questions of law where
“the appellate standard of review is de novo and the appellate scope of review
is plenary.” D.K. v. S.P.K., 102 A.3d 467, 471 (Pa. Super. 2014).
The Child Custody Act defines a relocation as “[a] change in a residence
of the child which significantly impairs the ability of a nonrelocating party to
exercise custodial rights.” 23 Pa.C.S.A. § 5322(a). Case law directs that a
trial court consider both the factors listed at 23 Pa.C.S.A. § 5337(h)(1-10), as
well as the factors listed at 23 Pa.C.S.A. § 5328(a)(1-16) whenever a
relocation also involves a custody decision. See A.M.S. v. M.R.C., 70 A.3d
830, 836 (Pa. Super. 2013). The party proposing the relocation has the
burden of establishing that the relocation will serve the best interest of the
children. 23 Pa.C.S.A. § 5337(i)(1). Moreover, “each party has the burden of
establishing the integrity of that party’s motives in either seeking the
relocation or seeking to prevent the relocation.” 23 Pa.C.S.A. § 5337(i)(2).
Specifically, the relevant provisions provide:
(i) Burden of proof.—
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(1) The party proposing the relocation has the burden of
establishing that the relocation will serve the best
interest of the child as shown under the factors set forth
in subsection (h).
(2) Each party has the burden of establishing the
integrity of that party's motives in either seeking the
relocation or seeking to prevent the relocation.
23 Pa.C.S.A. § 5337(i)(1)-(2).
In her first issue, Mother claims the trial court misapplied the law
concerning her burden of proof. See generally Mother’s Brief at 25-27. Her
argument is technical. She claims the court required her to establish, not only
that relocation was in the Children’s best interests, but also that she took
steps to prevent relocation. Id. at 25-26.
In its Findings of Fact, issued contemporaneously with its order denying
relocation, the court stated that it was “pained to deprive Mother of this
exceptional opportunity but it appears that Mother has not explored every
possible avenue for employment, even at a lower salary and outside of her
specific field.” See Memorandum (“Findings of Fact”), 2/2/19, at *6 (not
paginated). The court ultimately concluded: “Under the relocation statute,
Mother had a duty to prevent relocation, and from the evidence submitted at
trial, this [c]ourt concluded that she failed to meet that burden.” See Trial
Court Opinion (T.C.O.), 1/24/20, at 7.
The crux of this issue turns on the language of Section 5337(i). When
deciding questions of statutory interpretation, our Court has long recognized
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the following principles of statutory construction set forth in the Statutory
Construction Act, 1 Pa.C.S.A. § 1501, et seq.:
The goal in interpreting any statute is to ascertain and
effectuate the intention of the General Assembly. Our
Supreme Court has stated that the plain language of a
statute is in general the best indication of the legislative
intent that gave rise to the statute. When the language is
clear, explicit, and free from any ambiguity, we discern
intent from the language alone, and not from the arguments
based on legislative history or ‘spirit’ of the statute. We
must construe words and phrases in the statute according
to their common and approved usage. We also must
construe a statute in such a way as to give effect to all its
provisions, if possible, thereby avoiding the need to label
any provision as mere surplusage.
Under Section 1921(c), the court resorts to considerations
of ‘purpose’ and ‘object’ of the legislature when the words
of a statute are not explicit.... Finally, it is presumed that
the legislature did not intend an absurd or unreasonable
result. In this regard, we ... are permitted to examine the
practical consequences of a particular interpretation.
D.K., 102 A.3d at 471-472 (citation omitted).
Section 5337(i)(1) clearly provides that the party proposing relocation
(here, Mother) has the burden of establishing that relocation is in the
Children’s best interests. This provision, by itself, is not the source of the
consternation, however. Section 5337(i)(2) adds that “[e]ach party has the
burden of establishing the integrity of that party’s motives in either seeking
the relocation or seeking to prevent the relocation.” (Emphasis added). The
use of the words “each,” “that,” “either,” and “or” clearly relate to the
respective burdens each party faces, depending on which side of the relocation
dispute the parent falls. The party seeking to relocate must establish that the
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relocation is in the child’s best interest. That party also must establish the
integrity of his/her motives for requesting the relocation. The party seeking
to prevent relocation must establish the integrity of his/her motives for
opposing the relocation. This is the totality of the burden analysis under
Section 5337(i)(1)-(2). Thus, we agree with Mother that the trial court
misinterpreted Section 5337(i)(2), when it presumed that she had to establish
that the relocation could not be prevented. See T.C.O. at 7.
Father argues otherwise, claiming Mother’s failure to seek alternative
employment locally was relevant to the court’s relocation analysis: “It was
prudent of the trial court to consider Mother’s failure to explore any
alternatives for local employment under Section 5337(h)(8) and (i)(2); to do
so was to investigate into Mother’s motivation, not to impose an additional
burden upon Mother that is unsupported by statute.” See Father’s Brief at 14.
Father contends that the trial court properly considered Mother’s job search
in its best interest analysis, since it is one of the factors the court must weigh
under section (h) of the relocation statute.
That statute provides, in part:
(h) Relocations 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:
[***]
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
[***]
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23 Pa.C.S.A. § 5337(h)(8).
We agree with Father that the extent of Mother’s job search could be
relevant under this factor. However, contrary to Father’s assessment, the
court did not investigate Mother’s motives, or the integrity of her motives,
when weighing the factors of section (h). This is clear from the court’s cursory
findings under section (h)(8), where it concluded: “Both parties testified to
their reasons and motivations for seeking or opposing the relocation and they
are not in bad faith.” See Findings of Fact at *9.
Here, the problem was the trial court did not consider Mother’s job
search in its best interests analysis; instead, the court erroneously imposed a
separate burden upon Mother, under the mistaken belief that Mother had to
“explore[] every possible avenue for employment, even at a lower salary and
outside of her specific field.” See Findings of Fact at *6. This was incorrect.
The Dissent interprets this Court’s prior decision in D.K.D. v. A.L.C.,
141 A.3d 566, 577 (Pa. Super. 2016), to conclude that a parent seeking
relocation does have “a duty to mitigate the need for relocation.” See
Dissenting Memorandum at *2. Respectfully, D.K.D. did not impose a “duty
to mitigate” upon a party seeking to relocate.
In D.K.D., we reversed the trial court’s decision granting relocation after
we noted, inter alia, the mother’s “search for employment opportunities in
Pennsylvania” was “chiefly symbolic” and that she “neglected to make sincere,
unencumbered effort to find employment in Pennsylvania.” 141 A.3d at 579;
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577. At first blush, our reasoning in D.K.D. appears no different than the trial
court’s reasoning in the instant matter. But there is a critical distinction.
In D.K.D., we concluded that the trial court’s best interests
determinations under the factors set forth in section (h) were not supported
by the record, and thus the court committed an abuse of discretion. For
example, under factors (h)(6) and (7), (whether the relocation will enhance
the general quality of life of the child or the life for the party seeking the
relocation, including, but not limited to, financial or emotional benefit or
educational opportunity), this Court found mother’s “chiefly symbolic” job
search showed that her proposed relocation was primarily about her desire to
return to her Florida roots, and less about the quality of life of her child, who
had special needs. See 23 Pa.C.S.A. § 5337(h)(6-7); see also D.K.D., 141
A.3d at 579-580. Even then, we did not reverse the relocation on this basis
alone, but upon the trial court’s collective errors. Indeed, we found the court’s
conclusions regarding other relocation factors also were not supported by the
record. See id. at 580. Contrary to the Dissent’s view of the case, nowhere
did we suggest that a relocation-seeking parent must attempt to mitigate the
need for relocation.
Here, we cannot determine whether Mother’s failure to seek a job locally
would have played into the court’s best interest analysis, because the court
did not mention it when analyzing the relocation factors. Rather, the court
committed a legal error when it imposed on Mother the additional burden of
exhausting all possible alternatives to relocation, on top of her burden to prove
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that relocation was in the Children’s best interests. This additional burden has
no basis in the relocation statute or our case law. The court erred when it
held Mother to this higher standard.
Additionally, contrary to the Dissent, we cannot find this error was
harmless and affirm the trial court, nor can we outright reverse the trial court
and allow the relocation as Mother requested. See Mother’s Brief at 27; 50-
64. Neither of these actions is appropriate at this juncture.
First, we cannot find harmless error and affirm the trial court’s order
denying the relocation. The harmless error doctrine is “designed to advance
judicial economy by obviating the necessity for a retrial[.]” See, e.g.,
Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012). In custody
cases involving the harmless error doctrine, the question is whether the party
claiming error “suffered prejudice from the mistake.” See J.C. v. K.C., 179
A.3d 1124, 1130 (Pa. Super. 2018) (citing Harman ex el. Harman v. Borah,
756 A.2d 116, 1122 (Pa. 2000)). Thus, we must determine whether Mother
has been prejudiced by the trial court’s misapplication of Section 5337(i).
Instantly, the trial court plainly thought Mother had an affirmative duty
to avoid relocation, and it lamented that Mother would have to forgo the
employment opportunity in California. As stated above, the trial court did not
consider Mother’s job search efforts in its best interest analysis. As such, the
only way we could find harmless error, would be if we undertook the analysis
ourselves in the first instance. But that is not the function of the appellate
court. See C.M.K., 45 A.3d at 421 (“[W]ith regard to issues of credibility and
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weight of the evidence, this Court must defer to the trial judge[.]”); see also
In re A.J.R.-H., 188 A.3d 1157, 1175 (Pa. 2018) (“appellate courts should
refrain from assuming the role of a fact-finder in an attempt to sustain the
action of the court below.”); and see In re R.J.T., 9 A.3d 1179, 1190 (Pa.
2010) (“[appellate courts] are not in a position to make the close calls based
on fact-specific determinations.”).
For this same reason, although the trial court erred here, we cannot
reverse the decision and allow Mother to relocate, because we do not know
the weight the trial court would assign to her job search efforts, in comparison
to the other factors the court must consider.
Thus, we must remand for the trial court to consider Mother’s job search
efforts as part of its weighing of the relocation and custody factors presented
before that court, and determine whether Mother met her burden of proof to
allow the relocation.1
____________________________________________
1 For purposes of completeness, we note that we also cannot affirm the trial
court’s decision under the “right for any reason” doctrine. That doctrine “may
be applied by a reviewing court if the established facts support a legal
conclusion producing the same outcome. The doctrine may not be used to
affirm a decision when the appellate court must weigh evidence and engage
in fact finding or make credibility determination to reach a legal
conclusion.” A.J.R.-H., 188 A.3d at 1175-1176 (citation omitted) (emphasis
added).
Here, the trial court did not make “job-search” findings a part of its best
interests analysis. Moreover, the court did not address the integrity of
Mother’s motives, except to say they were not made in bad faith. Lastly, we
will not reweigh the relevant factors for the trial court in order to affirm its
decision.
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To conclude, the trial court erred by imposing on Mother a burden of
proof not supported by the law. Mother only had the burden of establishing
that relocation was in the Children’s best interests and that her motives for
relocation had integrity; Mother did not have a burden to prevent relocation.
See 23 Pa.C.S.A. § 5337(i). Regrettably, our decision does not bear finality,
and we are keenly aware that childhood is fleeting, and Mother’s “once-in-a-
lifetime” employment opportunity may not last indefinitely. Nevertheless, we
are constrained to remand.
The trial court must clarify: whether Mother established that relocation
will serve the best interests of the Children under the relevant relocation and
custody factors, while being mindful that Mother has the burden of
establishing the integrity of her motives to relocate, and that Father has the
burden of establishing the integrity of his motives to prevent relocation.2 We
relinquish jurisdiction to allow the trial court to address relocation in a manner
consistent with Section 5337(i), including additional proceedings if necessary.
Upon the entry of a new order, either party may appeal. See Pa.R.A.P. 341(a)
(“[A]n appeal may be taken as of right from any final order of a…trial court.”)
Order vacated. Case remanded. Jurisdiction relinquished.
____________________________________________
2 In light of our disposition, we do not address Mother’s remaining issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2020
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