Gwinner, B. v. Cascio, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRITTANY Q. GWINNER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY J. CASCIO :
:
Appellant : No. 1814 EDA 2021
Appeal from the Order Entered August 13, 2021
In the Court of Common Pleas of Chester County Civil Division at No(s):
2019-04959-CU
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 20, 2022
Appellant, Timothy J. Cascio (“Father”), appeals from the August 13,
2021 Order that granted the Petition for Approval of Relocation filed by
Appellee, Brittany Q. Gwinner (“Mother”), and, inter alia, awarded Mother
primary physical custody and Father partial physical custody of the parties’
then-five-year-old child, K.J.C. (“Child”). Upon careful review, we affirm.
The relevant factual and procedural history is as follows. Mother and
Father were never married and are parents to now-six-year-old Child. Father
has a second son from a different relationship, L.C. (“Brother”), who is
approximately four months older than Child. Mother and Father have made
attempts to keep the brothers on the same visitation schedule. Prior to May
2019, the parties agreed to a custody arrangement where Mother had primary
physical custody and Father had partial physical custody. In May 2019,
Mother filed for emergency custody of Child after Father, who is a police officer
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for the Pottstown Police Department, left his service weapon loaded, cocked,
and unattended and then-three-year-old Child accessed the weapon and fired
a shot over the head of then-four-year-old Brother. On May 30, 2019, the
trial court issued an Interim Custody Order that limited Father’s physical
custody to supervised visitation with Child. On July 3, 2019, the trial court
issued a Custody Order that awarded Mother primary physical custody and,
after a 30-day supervised visitation period, awarded Father partial physical
custody of Child for four overnights during a two-week period, to coincide with
Father’s fluctuating work schedule.
In September 2019, Mother married Patrick McKenna (“Stepfather”),
who serves in the United States Navy as an explosive ordinance disposal
operator stationed in Virginia. On March 4, 2020, after Stepfather’s request
to transfer to Pennsylvania was denied, Mother filed a Notice of Relocation
from Pennsylvania to Virginia to live with Stepfather and his two young
children, approximately five hours away from Father. Father opposed the
relocation. On July 16, 2020, Mother filed a Petition for Approval of Relocation
asserting that her employment in Pennsylvania was unstable due to the
COVID-19 pandemic, that her lease in Pennsylvania ended and she was unable
to secure affordable housing, and that moving to Chesapeake, Virginia, with
Stepfather would provide financial and emotional stability for her and Child.
Pending the relocation trial, Mother moved to Virginia and the parties agreed
to a shared physical custody schedule on a week on/week off basis with Mother
providing all transportation of Child to and from Father’s home.
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The trial court held a trial on October 5, 2020, October 6, 2020, and
May 12, 2021. The trial court heard testimony from both parents as well as
Brooke Gwinner, Mother’s sister; Stepfather; James Kalavik, Father’s
neighbor; and Paul Casio, Child’s paternal grandfather (“Paternal
Grandfather”).
On August 13, 2021, the trial court served notice of a Final Custody
Order, which considered and analyzed the 23 Pa.C.S. § 5328 custody factors
and Section 5337 relocation factors and determined that granting Mother’s
relocation petition was in Child’s best interest. The court awarded Mother
primary physical custody of Child during the school year. The court awarded
Father partial physical custody every other weekend during the school year,
with additional time allotted during the summer months and whenever
Father’s flexible work schedule allowed him to stay at his family’s vacation
home in Virginia.
Father timely appealed. Father subsequently filed a Pa.R.A.P. 1925(b)
Statement and the trial court filed a responsive Rule 1925(a) Opinion.1
Father raises the following issues for our review:
____________________________________________
1 Although Father failed to file a Rule 1925(b) Statement contemporaneously
with his Notice of Appeal, see Pa.R.A.P. 1925(a)(2)(i), (b), we decline to
dismiss on this basis because no party asserted prejudice. See In re K.T.E.L.,
983 A.2d 745, 747 (Pa. Super. 2009) (holding that the failure to file a rule
1925(b) statement contemporaneously with a notice of appeal in a children’s
fast track case will result in a defective notice of appeal which this Court will
address on a case-by-case basis, avoiding the extreme action of dismissal
when the defect does not prejudice any party).
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1. Did the trial court commit an error of law when it failed to
properly apply the facts of the case to the relocation factors set
forth in 23 Pa.C.S. § 5337(h) prior to considering the general
custody factors?
2. Was the trial court’s conclusion to grant Mother’s relocation
request unreasonable in light of the facts presented at trial
where the trial court failed to consider the irreparable harm
relocation would have on Father and [B]rother’s relationship
with [Child]?
3. Did the trial court commit an error of law by failing to consider
and apply the statutory factors and binding precedent of this
Court which compels denial of Mother’s Petition for Relocation?
4. Was the trial court’s conclusion to grant Mother’s relocation
request unreasonable in light of the facts presented at trial
where the trial court failed to consider the harm relocation
would have on [Child]’s relationships with his extended
biological family?
5. Was the trial court’s conclusion to grant Mother’s relocation
request unreasonable in light of the facts presented at trial
where the trial court’s order contained numerous factual
inaccuracies, which, when corrected, actually favored Father.
Father’s Br. at 4 (reordered and renumbered for ease of disposition; some
capitalization omitted).
“We review a trial court’s determination in a custody case for an abuse
of discretion, and our scope of review is broad.” S.W.D. v. S.A.R., 96 A.3d
396, 400 (Pa. Super. 2014). This Court must accept the findings of the trial
court that the evidence supports. Id. Importantly, “[o]n issues of credibility
and weight of the evidence, we defer to the findings of the trial judge who has
had the opportunity to observe the proceedings and demeanor of the
witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation
omitted). We can interfere only where the “custody order is manifestly
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unreasonable as shown by the evidence of record.” Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
A trial court must “delineate the reasons for its decision when making
an award of custody either on the record or in a written opinion.” S.W.D., 96
A.3d at 401. See also 23 Pa.C.S. § 5323(a) and (d). The Custody Act
requires a trial court to consider the Section 5328(a) custody factors when
“ordering any form of custody,” and further requires the court to give
“weighted consideration to those factors which affect the safety of the child[.]”
23 Pa.C.S. § 5328(a).
Likewise, a trial court must consider ten relocation factors when deciding
a petition for relocation, “giving weighted consideration to those factors which
affect the safety of the child.” Id. at § 5337(h). The party proposing a child’s
relocation has the burden of establishing that the relocation will serve the best
interest of the child. Id. at § 5337(i)(1). Moreover, each party has the
burden of establishing the integrity of that party’s own motives in either
seeking the relocation or opposing the relocation. Id. at § 5337(i)(2).
“If the proposed relocation will result in a change in custody, the court
must also consider the custody factors in Section 5328(a).” S.S. v. K.F., 189
A.3d 1093, 1098 (Pa. Super. 2018). The two statutes do not exist in separate
vacuums, but rather intersect since “[s]everal of the factors of section
5337(h) are encompassed, either directly or implicitly, by the custody factors
of section 5328(a). D.K. v. S.P.K., 102 A.3d 467, 476–77 (Pa. Super. 2014).
It is well settled that “[a] court should avoid dissociating the issue of primary
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custody from the issue of relocation and should instead decide the two issues
together under a single umbrella of best interests of the children.” S.S. v.
K.F., 189 A.3d at 1098 (citation and internal quotation marks omitted).
It is axiomatic that when reviewing child custody matters and the trial
court’s consideration of the Section 5328(a) custody and Section 5337(h)
relocation factors, our paramount concern is the best interests of the child.
See Saintz, 902 A.2d at 512 (explaining that this Court’s “paramount concern
and the polestar of our analysis” in custody cases is the best interests of the
child). “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.” D.K.D. v. A.L.C., 141
A.3d 566, 572 (Pa. Super. 2016) (citations omitted).
In his first issue, Father avers that the trial court committed an error of
law when it failed to consider the relocation factors prior to the custody
factors. Father’s Br. at 12. Father argues that the relocation statute requires
analysis of the relocation factors and a determination that relocation is in a
child’s best interest prior to any custody determination. Id. Father’s claim
lacks merit.
To support his argument, Father cites subsection (f), which requires a
court that is considering a relocation petition to hold a hearing prior to
modifying a custody order and provides: “the court shall modify the existing
custody order only after holding a hearing to establish the terms and
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conditions of the order pursuant to the relocation indicating the rights, if any,
of the nonrelocating parties.” 23 Pa.C.S. § 5337(f). Father also cites
subsection (g), which compels the court to issue an appropriate custody order
after granting a relocation petition, stating: “[i]f the court approves the
proposed relocation, it shall: (i) modify any existing custody order; or (ii)
establish the terms and conditions of a custody order.” Id. at § 5337(g).
While Father cites to subsections of the statute that require a trial court
to hold a hearing prior to modifying a custody order and issue an appropriate
custody order after approving relocation, Father fails to cite to any legal
authority that specifically requires a court to consider custody factors prior to
relocation factors. On the contrary, as stated above, it is well-settled that the
relocation factors and custody factors intersect, and a court should decide the
issues together under a “single umbrella” of best interests of the child.
In any event, the trial court explained that it did not consider the
custody factors prior to the relocation factors but, rather, considered them
together even though the court listed the custody factors first in its analysis.
The trial court opined:
Father is mistaken in his factual claim that this court first
considered the custody factors and only then considered the
relocation factors. Rather, this court considered both sets of
factors entirely and gave each factor weight as appropriate before
attaching this court’s analysis serially to the Final Custody Order
starting with the custody factors. Moreover, this court’s research
found no support in the law for Father’s claim that a lower court
commits reversible error by listing the custody factors first.[] Even
if this court had listed the relocation factors first, and separately,
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the results of this court’s Final Custody Order would have been
the same. Father’s assignment of error . . . lacks merit.
Trial Ct. Op., filed 9/22/21, at 4 (footnote language included). We agree. The
trial court properly considered the relocation and custody factors together to
determine a disposition that was in Child’s best interest. Accordingly, we find
no abuse of discretion.
In his second issue, Father avers that the trial court failed to consider
the harm that relocation would have on Father and Brother’s relationship with
Child. Father’s Br. at 4. Father argues that the trial court gave more weight
to Mother’s individual happiness and the existence of Mother’s new military
community to the exclusion and detriment of Child’s relationship with Father
and Brother. Id. at 20. Father maintains that the logistics of implementing
the newly-ordered custody schedule and traveling back and forth between
Pennsylvania and Virginia will preclude him and Brother from spending
meaningful time with Child and, therefore, the court should have denied the
relocation petition. Id. at 22.
In this issue, Father does not challenge the court’s application of the
relocation and custody factors; rather, he challenges the weight the court gave
to the evidence. Our review of the record reveals that the trial court engaged
in an analysis of the Section 5337 relocation factors and the Section 5328
custody factors and made specific findings regarding each factor, which the
record supports. See Order, 8/11/20, Appendix at 1-5.
Further, the trial court did contemplate the strong relationship that Child
had with Father and Brother in its consideration of custody factor 6 and
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relocation factors 1 and 8. The trial court found that Child has a “strong
relationship” with Brother, “Father has arranged to have both of his children
on the same custody schedule so that [Child] can grow up with [Brother,]”
Child has “a very close bond” with Brother and Father, and “Father
understandably opposes [relocation] due to the inability to spend as much
time with [Child] fostering a relationship as well as reducing [Child’s] time
with [Brother].” See Order, 8/11/20, Appendix at 1-2, 4-5. The trial court
opined:
[t]his court considered the potential negative effects the Final
Custody Order might have on [Child] and Father, and on the half-
brothers, and this court sought to minimize those potential
negative effects by awarding as much partial physical custody to
Father as was practically feasible consistent with [C]hild’s best
interests. Ultimately, this court decided that it was in [Child]’s
best interest to be primarily in Virginia with Mother at some risk
to [Child]’s relationship with [] Father and [Brother] in
Pennsylvania.
Trial Ct. Op. at 5-6.
The trial court further explained that: “[t]he court struggled greatly with
the decision in this matter as both parents are caring, attentive, and willing to
make great personal sacrifice.” Id. at 1-2. Ultimately, however, in making
its decision that relocation was in Child’s best interest, the trial court
emphasized the support structure available to Mother and Child in Virginia,
Mother’s job flexibility and ability to work from home in Virginia, and Mother’s
history of being the primary caretaker of Child’s medical, emotional, and
developmental needs. Id.; Order, 8/11/20, Appendix at 1-5. Upon review,
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the record supports the trial court’s findings, and we decline to reweigh the
evidence. Therefore, we find no abuse of discretion.
In Father’s third issue, he avers that the trial court committed “an error
of law by failing to consider and apply the statutory factors and binding
precedent of this court that compelled the denial of Mother’s petition for
relocation.” Father’s Br. at 4. In his fourth issue, he avers that the trial court
“failed to consider the harm relocation would have on [Child]’s relationships
with his extended biological family[.]” Id. Our review of Father’s Rule
1925(b) Statement, which raises over ten separate allegations of error,
indicates that Father failed to include these specific allegations of error. See
Rule 1925(b) Statement, 9/8/21, at 1-2. Consequently, the trial court did not
address these allegations of error in its Rule 1925(b) Opinion.
Pa.R.A.P. 1925(b)(4)(ii) directs that an appellant’s Rule 1925(b)
statement “shall concisely identify each error that the appellant intends to
assert with sufficient detail to identify the issue to be raised for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). Rule 1925(b)(4)(vii) provides that “[i]ssues not
included in the [Rule 1925(b) s]tatement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).
See Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001)
(explaining that any issues not raised in a Rule 1925(b) statement are
waived). Because Father did not raise these allegations of error in his Rule
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1925(b) Statement and the trial court failed to address them, we conclude
that any argument based on these allegations of error are waived.
Finally, Father contends that the trial court based its decision on
“numerous factual inaccuracies, which, when corrected, actually favored
Father[.]” Father’s Br. at 4. In its 1925(a) Opinion, the trial court found this
issue waived because it was a generic assignment of error that lacked
specificity and failed to raise a cognizable issue for the court to address. Trial
Ct. Op. at 3. We agree.
It is an appellant’s responsibility to precisely identify any purported
errors. Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005). “When a
court has to guess what issues an appellant is appealing, that is not enough
for meaningful review.” Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa. Super. 2001) (citations omitted). “In other words, a [Rule 1925(b)
c]oncise [s]tatement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement
at all.” Id. at 686-87. When a trial court fails to address an issue because
the appellant’s Rule 1925(b) statement is not specific enough for the trial court
to identify and address the issue that the appellant wishes to raise on appeal,
waiver is appropriate. Id. at 687. The trial court concluded this issue was
waived because it was too vague, and we agree.
In conclusion, the trial court did not abuse its discretion when it granted
Mother’s relocation petition and awarded primary physical custody to Mother.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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