Penzerro, J. v. Gadd, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JACOB C. PENZERRO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIA B. GADD :
:
Appellant : No. 898 WDA 2021
Appeal from the Order Entered July 12, 2021
In the Court of Common Pleas of Mercer County Civil Division at No(s):
2019-00074
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED: March 15, 2022
Julia B. Gadd (Mother) appeals the order of the Court of Common Pleas
of Mercer County (trial court) denying her request to relocate with her
daughter, L.C.P., from Brookfield, Ohio, to Cambridge Springs in Crawford
County, Pennsylvania. L.C.P. was born in January 2015 to Mother and Jacob
C. Penzerro (Father) who were never married.
In a request for relocation and attendant custody proceeding, the
ultimate goal is to determine what is in the best interest of the “child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006) (citation omitted). To determine whether
relocation is in the best interest of the child, the trial court must consider the
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* Retired Senior Judge assigned to the Superior Court.
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ten factors set forth in Section 5337(h) of the Child Custody Act, 23 Pa.C.S.
§ 5337(h). Those factors recognize that there are at least three interests to
be considered in making that determination: the father’s, the mother’s and
the child’s. If either father or mother has remarried or intends to remarry,
there will be a step-parent or soon-to-be step-parent, and possible half-
sibling(s), who are relevant to the best interests of the child. Moreover, the
interests of the adults are not peripheral to the best interests of the child
because failing to consider the adults’ best interests can rarely be in the child’s
best interest.
I respectfully dissent because the trial court erred by:
 not addressing what was before it—whether Mother’s
specific request to relocate to Cambridge Springs was in the best
interest of L.C.P.—because it believed that a relocation to
somewhere else would be better;
 not taking into consideration the interest of all the parties
as required by Section § 5337; and
 reaching factual conclusions not supported by the evidence.
I.
The underlying facts are not in dispute. Mother’s proposed relocation
with L.C.P. from Brookfield, Ohio, to Cambridge Springs was to live with her
fiancé (Fiancé), the father of her then soon-to-be born child. Father resides
in West Middlesex, Pennsylvania, which is a thirty-minute drive from where
Mother now lives. Cambridge Springs is a seventy-five-minute drive from
Father’s house.
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Mother and Father do not interact well. “[F]ather has a history of anger
issues and inappropriate interactions with [M]other, by way of example: 1.
Father was found guilty of aggravated menacing; 2. Father broke a door open
and broke a television next to [M]other[.] Both parties agree communication
between them is not very good, often ending in arguments.” Trial Court
Opinion, 7/12/21, at 4.
Mother has no family in Brookfield or Cambridge Springs. Fiancé has
lived in Cambridge Springs his whole life and his entire extended family lives
within fifteen minutes of his home. Father’s brother and sister-in-law and
their four children, who are between two and seven years of age and with
whom L.C.P. interacts, live in Brookfield, about ten minutes from where
Mother now lives. When L.C.P. was asked how she would feel if she would
see her Father less than she currently does, she said would be a “little sad.”
Trial Court Opinion, 7/12/21, at 3.
Overarching all the other considerations in this case is L.C.P.’s medical
condition. She has been diagnosed with Friedreich’s Ataxia (FA) and left
ventricular hypertrophy. FA is a progressive disease for which there is
currently no known treatment. She currently has balance problems, fatigues
easily and wears orthotic braces on her ankles. FA results in a lower life
expectancy of approximately thirty-five years, and in the next five years, will
likely result in her requiring a wheelchair. L.C.P. receives physical and
occupational therapy in Brookfield, with a private therapist in Howland, Ohio,
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and at school. “[M]other has provided, almost exclusively, all care with regard
to child’s diagnosis and neurological disorder.” Trial Court Opinion, 7/12/21,
at 7 (emphasis omitted).
As a result of L.C.P.’s condition, Mother will have to eventually move
because she lives in a single trailer that cannot be modified when L.C.P.
requires a wheelchair. However, both Fiancé’s home in Cambridge Springs
and Father’s home are suitable, with adaptions, for L.C.P. once she requires a
wheelchair.
Because of schooling and distance involved from Father’s and Mother’s
relocated residence, the existing custody arrangement would be impractical.
Under the current “5-2, 2-5” arrangement, Mother has L.C.P. Monday and
Tuesday, Father Wednesday and Thursday morning, and they alternate
Thursday through Monday. Mother proposed a new physical custody schedule
where Father would have custody three weekends per month during the school
year and alternating weeks during the summer.
II.
In denying relocation, the trial court found that none of Section
§ 5337(h)’s ten relocation factors favored relocation. Permeating the trial
court’s analysis in arriving at that conclusion were (1) where L.C.P. received
medical and physical therapy treatment, and (2) Fiancé’s testimony that he
was willing to explore moving to a more central location so that the current
custody arrangement could be maintained.
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In addressing the impact of relocation on L.C.P.’s physical, educational
and emotional development and considering her special needs,1 the trial court
found that factor “strongly favors disallowing relocation.” Trial Court Opinion,
7/12/21, at 12. It reasoned that L.C.P.’s condition “will most likely result in
the child being wheelchair bound [and] child’s neurologist, at Akron Children’s
Hospital, [is] one (1) hour from the child’s current location and one (1) hour
and forty-five (45) minutes from the proposed relocation. The child’s current
primary care physician and therapists are all within fifteen (15) minutes of the
child’s current residence.” Id.
The trial court considered Fiancé’s purported willingness to move to a
more central location as relevant under several Section 5337(h) factors:
 In addressing the factor regarding the feasibility of
maintaining the relationship between the non-relocating party and
the child,2 the trial court found that it disfavors relocation because
the current 50/50 custody agreement could not be maintained. It
noted that Fiancé has indicated a willingness to relocate and it
believed a different proposed relocation may be “possible.”3 Trial
Court Opinion, 7/12/21, at 12-13.
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1 23 Pa.C.S. § 5337(h)(2).
2 23 Pa.C.S. § 5337(h)(3).
3 The trial court suggested that relocation halfway between where Father now
resides and Cambridge Springs may be possible. However, L.C.P. would then
not have close contact with Father’s family, which the trial court deemed to
be important in considering the Section 5337(h)(1) analysis regarding other
significant people in L.C.P.’s life. It also did not consider that the potential for
other significant relationships may develop with Fiancé’s family or, in the long
run, her most significant relationship—her newborn sibling. Furthermore,
such a relocation would also increase the travel time to Akron Children’s
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 In reviewing the factor of whether the relocation would
enhance the general quality of life for the party seeking
relocation,4 the trial court found that Mother’s financial and
educational circumstances would improve based on the relocation.
Nonetheless, it found this factor neutral largely because Fiancé
“could move more in the middle of his location and [M]other’s
current location, he would be willing to do so, and there would be
no financial burden on him doing so.” Trial Court Opinion,
7/12/21, at 14.
 In reviewing whether relocation would enhance the quality
of life for the child,5 the trial court found that factor neutral. It
found that relocation “would benefit the child to the extent there
would be a bigger home, the ability to make the home wheelchair
accessible, and the efforts are already undertaken at [F]iancé’s
current home to modify the house, and surrounding area, for the
child.” Trial Court Opinion, 7/12/21, at 14. Nonetheless, it
concluded that L.C.P.’s medical condition somehow “strongly
mitigates against relocation,” again solely because Fiancé was
willing to relocate, “mitigating the need for a move to Cambridge
Springs.” Id.
Unlike the majority, I would find that that the trial court abused its
discretion when analyzing the relocation factors by weighing the factors
improperly and relying on improper factors. Thus, I would conclude that the
trial court committed an error of law by denying relocation based on where
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Hospital and a change in primary care physicians and physical therapists
discussed infra.
4 23 Pa.C.S. § 5337(h)(6).
5 23 Pa.C.S. § 5337 (h)(7).
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L.C.P. received medical treatment and Fiancé’s purported willingness to
move.6
III.
A.
There is no evidence that supports the trial court’s conclusion that where
L.C.P. receives medical treatment and physical therapy strongly favors
disallowing the relocation. It reached this conclusion because the drive from
Cambridge Springs to Akron Children’s Hospital would take an additional forty-
five minutes compared to Mother’s home in Brookfield. Mother testified that
since being referred, L.C.P. had been to Akron Children’s Hospital four times,
including her first appointment in February 2020. See N.T. Hearing, 5/28/20,
at 24. When asked about how many appointments L.C.P. had over the
preceding year with both her specialists in Akron and her local primary care
physician, Mother responded “several.” See N.T. Hearing, 6/07/21, at 18.
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6 Contrary to the majority’s comments, the dissent is not attempting to
reweigh the evidence, nor perform a new balancing test or scour the record in
an effort to reverse the trial court’s decision. It accepts all the facts found by
the trial court but rejects the conclusions the trial court draws from those facts
as unreasonable. The dissent does not have to scour the record for reasons
to reverse the trial court; it merely addresses the two reasons that the trial
court relied on in denying relocation and finds them to be improper. While
the majority may disagree with the dissent’s analysis of those two issues, it is
still within our ken as a reviewing court to address these reasons and remand
if we find the trial court’s analysis legally improper. Simply, that is what we
must do when reviewing a trial court decision; otherwise, taking an appeal
would be an exercise in futility.
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She testified that she only goes to the neuromuscular clinic at Akron Children’s
Hospital once every six months. See id. For such a limited number of
appointments, the extra 45 minutes are so insignificant that the trial court
abused its discretion by finding this consideration militated against relocation.7
The trial court also considered that L.C.P.’s primary care physician and
physical therapists in Howland, Ohio, are all within fifteen minutes of her
current residence. The import of the consideration is that L.C.P. would
adversely be affected if she obtained a new primary care physician and new
physical therapists. Nothing in the record supports that factual conclusion.
First, there is almost no testimony in the record regarding her physical
therapy, other than she attends two months on and two months off, while her
occupational therapy is every other week. See id., at 21. There is no
evidence that those physical therapists are so unique, so skilled, that other
licensed physical therapists could not provide the same treatment. Nothing
suggests that there are no equally accomplished primary care physicians or
physical therapists available in Cambridge Springs or nearby Meadville.
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7 Contrary to the majority’s assertions, the dissent does not ignore that L.C.P.
previously completed the trip to Akron four times in a four-month period. That
fact is simply irrelevant because that trip now only occurs twice a year. The
reduced number of appointments in Akron does, however, diminish the trial
court’s finding that the added forty-five minutes in her biannual trip has any
deleterious effect. There is no evidence in the record that an extra forty-five
minutes a year would cause additional hardship, and it was an abuse of
discretion for the trial court to so conclude.
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Second, there is no guarantee that those medical professionals, either
provided through the school or a private provider, will be available forever in
Howland. They could be transferred, quit or change employers. Simply, there
is nothing in the record that supports the factual conclusion that continuing
with L.C.P.’s current medical providers strongly militates against relocation.
For the trial court to find that this factor strongly disfavors relocation was an
abuse of discretion.8
B.
Now as to the trial court’s findings, mentioned above, that rely on
Fiancé’s purported willingness to move closer to where Father lives as a factor
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8The majority contends that the dissent’s analysis simply challenges the
weight which the trial court placed upon the facts. No, it doesn’t. As the
majority itself notes:
[T]he appellate court is not bound by the deductions or inferences
made by the trial court from its findings of fact, nor must the
reviewing court accept a finding that has no competent evidence
to support it. . . . However, this broad scope of review does not
vest in the reviewing court the duty or the privilege of making its
own independent determination. . . . Thus, an appellate court is
empowered to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may not
interfere with those conclusions unless they are unreasonable in
view of the trial court’s factual findings, and thus, represent a
gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting
Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)). The trial court’s
factual finding that it would cost an extra forty-five minutes every six months
to go to Akron Children’s Hospital does not support the conclusion that the
distance is so burdensome that it militates against relocation.
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against relocation. Mother, in accordance with Section 5337(c), served Father
with a notice of proposed relocation to a specific address in Cambridge
Springs. In making the determination as to whether relocation should be
permitted, the trial court is limited to applying the Section 5337(h) factors to
the move to the proposed specific location without regard to any speculative
relocation that it suggests may be acceptable. Because it did not confine its
analysis to whether Mother’s proposed relocation to Cambridge Springs was
in the best interest of L.C.P. but, instead, found that some speculative location
may be better, the trial court committed an error of law.
The trial court erred in speculating about an alternative relocation to
determine whether the requested relocation was in the best interest of L.C.P.
For example, the trial court found that Mother’s financial and educational
circumstances would be improved by relocation, but then nonetheless found
that this factor was neutral because Fiancé was willing to relocate and
ultimately concluded that relocation was disfavored simply because Fiancé
expressed a willingness to move. See Trial Court Opinion, 7/12/21, at 13-14,
16. However, Section 5337(h)(6) only directs the trial court to consider
whether Mother’s general quality of life would improve because of the
relocation to that specific location. See 23 Pa.C.S. § 5337(h)(6).9 Even
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9 See 23 Pa.C.S. 5337(h)(6) (“In determining whether to grant a proposed
relocation, the court shall consider … [w]hether the relocation will enhance
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though the trial court recognized that it would, it stated that it did not matter
because Mother could also move to some other unknown and unapproved
location. It was improper for the trial court to use this speculative
consideration as an “offset” when the simple answer under that factor is that
relocation would be in Mother’s best interest. By introducing Fiancé’s
purported “willingness to move” to find this factor neutral rather than in favor
of relocation, the trial court abused its discretion because Fiancé’s willingness
to move is irrelevant to whether Mother’s circumstances would improve
through the relocation, the sole focus of that factor.
Further, using Fiancé’s “willingness to move” to a more central location
is an improper consideration for the trial court to rely on to deny relocation
because Fiancé had to consider what was going to happen if the request for
relocation was denied. Moving to a more central location would impose a
hardship and obviously was not what Mother and Fiancé wanted. Such a move
would require selling Fiancé’s present home, moving away from his family, a
much-increased commute to work as he now works fifteen minutes away from
his home, and buying a new house that is suitable for L.C.P.’s needs, all with
a new baby in the house. It may prove necessary, but that does not mean
that it is better for L.C.P., and while it may offer an easy way out to resolve a
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the general quality of life for the party seeking the relocation, including, but
not limited to, financial or emotional benefit or educational opportunity.”).
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difficult matter, it is an extreme hardship for Mother and Fiancé. “What if”
arrangements should be excluded from consideration much for the same
reason that changes made after an accident can’t be introduced to prove
negligence.10
Moreover, of course Fiancé would testify that he would consider
moving—what choice did he have? If he said that he would not move if
relocation was not granted, that would leave Mother in a no-win situation; she
would either leave behind L.C.P. to be with her newborn or leave her fiancé to
be a single parent to both L.C.P. and the newborn, possibly engaging in
another custody battle where the best interests of that child would be
involved. Accordingly, I would remand for the trial court to make a relocation
analysis without using those improper considerations identified above.
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10 The majority contends that this reasoning is somewhat conjectural. No, it’s
not. It is hardly speculative to conclude that relocating to an alternative site,
that the trial court said it may or may not approve, might potentially affect
Mother and Fiancé adversely when (1) they don’t want to move, (2) will have
to relocate where they know no one, (3) with a new baby and a child with
special needs, and (4) a long commute to work. Furthermore, Fiancé explored
alternatives because it is simply prudent in such a situation. To use another
analogy, even though people stock up on supplies and board their windows if
a hurricane is forecast, they hope it is all for naught. The trial court used their
prudent actions against them. They would have been better served to not
make those “just in case” plans, which would leave L.C.P.’s medical treatment
as the only factor that the trial court could rely on to deny relocation.
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C.
Finally, I would also remand for the trial court to make a custody and
relocation analysis taking into consideration the overall best interests of L.C.P.
and her medical condition. Just because the present custody arrangement is
preserved does not mean that it was in the best interest of the child. That
determination must be based on all the statutory factors for relocation and
custody, including the interests of all the parties. Rather than do what was in
the best interest of the child by taking into consideration the interests of all
the parties, the majority and the trial court’s primary goal appears to be to
preserve that present custody arrangement. Simply, Father does not have a
right to the present custody arrangement and there is no evidence that under
the proposed custody arrangement that Father’s relationship with the Child
will suffer. In light of Mother’s impending marriage and new child and L.C.P.’s
medical condition, it may be that her best interests are not served by the
present custody arrangement when all of the various interests are taken into
consideration.
In preserving the current custody arrangement, not only did the trial
court not properly consider whether it will continue the bond L.C.P. has with
her Father, it did not examine whether it would be sustainable in the not-too-
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distant future.11 L.C.P. fatigues easily, will soon need a wheelchair, and as
time goes on, presumably will need more aid in her daily life, requiring
additional changes in custody during the school week and when she receives
therapy, even if there was no relocation. Mother testified that she could stay
at home full-time if necessary, but Father depends on his mother for child care
when he is working. In arriving at a custody schedule, the trial court should
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11 The majority criticizes the dissent’s position that on remand, the trial court
should attempt to fashion a more sustainable custody arrangement by
considering the interests of all the parties. It accuses the dissent of losing
sight of the “polestar” in custody cases to determine what serves the best
interest of the child. See Majority Memorandum at 12 n.4. Moreover, it posits
§ 5337(h) does not require consideration of all the parties’ respective interests
“beyond any derivative effects those interests might have on L.C.P.” Id. at
13 n.5. Of course, the best interest of the child is the polestar, but that is a
legal conclusion that must be based on the proper analysis of the custody and
relocation factors. If that legal conclusion is not based on proper factors or
relies on unsupportable factual conclusions, the best interest of the child is
not served.
In determining whether to grant relocation or modify custody, the trial court
should have considered the “facts on the ground,” which are decidedly
different than what Mother and Father agreed to when they agreed to joint
custody. Since that time, L.C.P. was diagnosed with FA, which will lead to the
effects mentioned above. Given the lasting impact the denial of relocation will
have on Mother, Fiancé and her soon-to-be-born child, it is prudent that this
new reality be taken into consideration when determining what custody should
be in the not-too-distant future.
The trial court’s denial based on the suggestion that Mother should move
somewhere between where Father now lives and Father’s work is a solution
that allows the present custody arrangement to be maintained, but denies
Mother the ability to have Fiancé’s family near or for him or his family to help
her in the care of L.C.P. That is why it is necessary to take into considerations
the interest of all the parties: their interests have derivative effects that
determine what is in the best interest of the child.
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take all of this into consideration; it may be that a custody schedule closer to
what Mother proposed is more sustainable than the present arrangement and
in the best interests of the child.
For the foregoing reasons, I respectfully dissent.
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