White, A. v. Malecki, C. ( 2023 )

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2023 PA Super 102ADRIAN WHITE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTINE MALECKI :
:
Appellant : No. 1548 MDA 2022
Appeal from the Order Entered October 26, 2022,
in the Court of Common Pleas of Luzerne County,
Civil Division at No(s): 1851 of 2022.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
OPINION BY KUNSELMAN, J.: JUNE 9, 2023
Christine Malecki (Mother) appeals the decision of the Luzerne County
Court of Common Pleas to award Adrian White (Father) primary physical
custody of their 6-year-old son A.C.W. (the Child), pursuant to the Child
Custody Act. See 23 Pa.C.S.A. §§ 5328(a), 5337(h). Father requested that
the Child move from Mother’s home in Pennsylvania to Father’s home in
Germany. On appeal, Mother challenges the trial court’s substantive custody
award, as well as a specific provision of the order, which made her responsible
for the cost of transporting the Child between residences. After careful review,
we affirm the trial court’s custody award, but we vacate the provision
regarding the transportation costs and remand with instruction.
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* Retired Senior Judge assigned to the Superior Court.
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The record discloses the following factual and procedural history: The
parties married in August 2016, and the Child was born in September 2016.
In mid-2018, the family (including the Child’s two half-siblings1 and Paternal
Grandmother) moved to Germany, where Father began employment as a
logistics management specialist with the Department of Defense and where
he was stationed with the Army Reserves.
A little over week after arriving in Germany, Mother became gravely ill.
Mother spent weeks in various hospitals, where she was treated for
pneumonia, sepsis, cardiac arrest, and multiple organ failure. At one point,
Mother was put on a ventilator and into a medically induced coma. After
Mother came out of the coma, Mother learned she had “four strokes, a few
mini strokes behind her eyes, and an aneurysm.” See N.T., 8/31/22, (Day 1)
at 175. One of her feet became gangrene, requiring a below-the-knee leg
amputation. In September 2018, Mother was transferred to Walter Reed
hospital in the United States to continue treatment. She returned to Germany
around May 2019.
The parties’ relationship deteriorated over the next several months. In
December 2019, Mother wanted to return to the United States. Mother said
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1 Each parent had a child from a previous relationship. The Child’s siblings
are not involved in this matter.
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she was dissatisfied with the level of care she was receiving in Germany.2
Father testified that he was unaware of Mother’s intentions until she
announced her decision. At some point between December 2019 and February
2020, Mother, the Child, and the maternal half-sibling, moved back to the
United States; Father, the paternal half-sibling, and Paternal Grandmother
remained in Germany.
Over the next two years, the parties operated without a formal custody
order. Father primarily lived in Germany, but he communicated regularly with
the Child and visited him when he traveled back to the United States. During
this time, Mother was the primary caretaker, assisted by Maternal
Grandmother. Eventually, the parties decided to end their marriage.3
Father petitioned for primary custody in February 2022 and filed a notice
of proposed relocation.4 The trial court held a custody hearing on August 31
and September 19, 2022. On October 26, 2022, the trial court granted
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2 Mother testified that she wanted to return to Walter Reed so she could get
fitted for a prosthetic leg, which she had been unable to receive in Germany
for over nine months. See N.T., 9/19/22 (Day 2) at 51.
3 The parties’ divorce complaint was pending at the time of the custody
hearing. Mother alleges that the date of separation was December 2019. The
complaint itself was not filed until 2022.
4 Evidently, Father’s complaint for primary custody was held or dismissed
without prejudice, as evidenced by the fact that it was reinstated in April 2022.
We note that the parties followed the relocation procedure identified in 23
Pa.C.S.A. § 5337. Because this case does not involve relocating parties, strict
adherence to the relocation procedure, though perhaps prudent, was
ultimately superfluous. See D.K. v. S.K., 102 A.3d 467 (Pa. Super. 2014)
(discussed infra).
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Father’s request for relocation and awarded him primary custody of the Child.
The trial court delineated its reasons for the award contemporaneously with
the custody order. Mother timely filed this appeal. She presents four issues
for our review:
1. Did the trial court abuse its discretion and err as a
matter of law in granted Father’s request for primary
custody when the application of factors enumerated in
23 Pa.C.S.A. § 5328(a) weighed in favor of Mother?
2. Did the trial court abuse its discretion and err as a
matter of law in granting Father’s request for
relocation when the application of the factors
enumerated in 23 Pa.C.S.A. § 5337(h) did not
establish relocation was in the best interest of the
Child?
3. Did the trial court abuse its discretion and err as a
matter of law in granting Father’s request for
relocation when he failed to demonstrate that
relocation would be in the Child’s best interest?
4. Did the trial court abuse its discretion and err as a
matter of law when it essentially granted Father sole
physical custody by requiring Mother to pay the costs
of transportation?
Mother’s Brief at 4 (cleaned up).
The relevant scope and standard of review governing these claims 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
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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.
D.K. v. S.K., 102 A.3d 467, 478 (Pa. Super. 2014) (citation omitted).
The Child Custody Act contains two sets of factors the trial court must
consider, depending on the type of action. See 23 Pa.C.S.A. § 5328(a)(1)-
(16); see also 23 Pa.C.S.A. § 5337(h). Section 5328(a) provides: “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 [factors 1 through
16.]” Id. Separately, Section 5337(h) enumerates ten factors a court must
consider in determining whether to grant a proposed relocation (again giving
weighted consideration to those factors which affect safety).
When the Legislature enacted Section 5337 to address relocation, it
anticipated there would be a “relocating party” and a “non-relocating party.”
D.K., 102 A.3d at 472. However, the relocation provisions set forth in Section
5337 do not apply when “both parents have lived in their current residences
for some time, and neither parent is moving." Id. at 473. We held that in
such a situation – where neither parent is seeking to relocate, and only the
child would be moving to a significantly distant location – trial courts “should
still consider the relevant factors of Section 5337(h) in their Section 5328(a)
best interest analysis.” Id. at 477-478. To put a finer point on it, Section
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5328(a)(16) (“any other relevant factor”) ropes in the Section 5337(h)
factors; the Section 5337(h) factors are per se relevant to the Section 5328(a)
best interest analysis.
Although the case before us is technically not a relocation case – as
Father has resided in Germany for some time – the parties and the trial court
correctly understood that consideration of both sets of factors, under Section
5328(a) and Section 5337(h) was required.
In her first and second appellate issues, Mother challenges the trial
court’s respective analyses under Sections 5328(a) and 5537(h). We address
Mother’s claims contemporaneously. The trial court delineated its reasons for
the award when it issued its October 26, 2022 custody order. See 23
Pa.C.S.A. 5323(d). The trial court explained its findings under each factor
listed in Sections 5328(a) and 5337(h), as well as the weight it afforded to
those factors. See Order of Court, 10/16/22, at 7-19. On balance, most of
the factors weighed in favor of Father. The court determined that Father was
the parent more likely to encourage and permit contact with the other parent;
that Father can better address the Child’s need for stability; that he is the
parent better suited to attend to the Child’s daily needs; that Father is more
willing to cooperate with Mother than vice versa; that moving to Germany
would have a more positive impact on the Child than if the Child remained in
the United States. See generally id.Despite its determination that most factors favored Father, the trial
court rightly understood that a custody analysis is not a scorecard. In its
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Pa.R.A.P. 1925(a) opinion, the trial court explained that the motivating force
behind its decision was its concern that the Child fell behind academically while
in Mother’s primary care. The Child had struggled with reading and had to
repeat kindergarten. The school instituted a “504 plan” to support the Child.
The trial court explained why it agreed with Father’s position that the Child
would do better in his care:
The court finds credible Father’s testimony that the Child
spends an inordinate amount of time on the computer and
watching YouTube videos when in Mother’s care. He will
also be able to provide the Child with opportunities to travel
countries in Europe and to have opportunities not available
to him presently. The Child will be able to be part of a
program before and after school which will provide extra
homework care, sports activities, as well as music, literary
arts and sports.
Father has shown a great interest in his children’s progress
in school, while Mother has not tracked what has been
happening in the Child’s education.
Father plans on having the Child playing sports and getting
him involved in team activities, while Mother has not been
able to plan organized activities like soccer and basketball.
[…]
In summary the Child’s emotional and physical health will
be greatly enhanced with Father as primary custodian. In
addition, the Child’s educational development will without a
doubt be greatly improved.
Trial Court Opinion, 12/2/22 (T.C.O.), at 10-11; 12 (citation to the record
omitted).
On appeal, Mother’s presents a litany of examples from the record as to
why any given factor should have been counted in her favor instead of
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Father’s. See generally Mother’s Brief at 11-19. We need not restate those
examples here; we do not disagree that these reasons could be persuasive.
But whether Mother’s reasons are persuasive is not our call to make. Mother’s
appellate argument fails because it does not appreciate our role, nor the
deferential standard of review that we must employ.
It is not the role of this Court to “re-find facts, re-weigh evidence, and
re-assess credibility.” Wilson v. Smyers, 285 A.3d 509, 520 (Pa. Super.
2022) (citation omitted). Our role is simply to review the record in light of
the trial court’s findings. Our deferential standard of review requires this Court
to accept the findings of the trial court, so long as those findings are supported
by competent evidence of record. Wilson, 285 A.3d at 515.
Here, the competent evidence supporting the trial court’s decision was
primarily Father’s testimony, which was deemed credible by the trial court.
Mother does not argue that the court’s decision lacked an evidentiary basis.
The crux of her argument is that the trial court should have found her
testimony more persuasive than Father’s. This is not cause for us to find error
or an abuse of discretion. The evidentiary record of a custody appeal will often
support a conclusion different than the one reached by the lower court. That
the trial court could have found for Mother is not a sufficient basis to reverse
the court’s decision. Deference must be given to the trial court, who viewed
the parties, the witnesses, and the evidence firsthand. For these reasons, we
conclude Mother’s first and second appellate issues merit no relief.
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In her third appellate issue, Mother claims the trial court erred when it
determined that Father met his burden “to establish that an award of primary
custody and/or relocation was in the minor child’s best interests.” See
Mother’s Brief at 9, 20. Our review of this claim necessitates that we clarify
the burden at issue.
As we explained above, Section 5337 anticipates that one party seeks
to relocate; when neither party seeks relocation the provisions of Section 5337
generally do not apply. D.K., 102 A.3d at 472-474. The exception, of course,
is Section 5337(h). Id. With this in mind, we note that 5337(i) (relating to
the burden of proof in a relocation matter) is not the precise burden involved
here.5 Instead, “each parent shares the burden of proving, by a
preponderance of the evidence, that an award of custody to him or her would
serve the best interests of the Child.” Graves v. Graves, 265 A.3d 688, 698
(Pa. Super. 2021).
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5 Section 5337(i) provides:
(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).
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However, in the type of case at issue here – where only the child stands
to move a significant distance – the burden each parent shoulders is
substantially similar to that of Section 5337(i). Put another way, Father
requested primary custody so the Child could move from Mother’s home in the
United States to his home in Germany; thus, Father had the burden to prove
that the move would be in the Child’s best interest. Mother, by contrast, had
the burden of proving that an award in her favor – not Father’s – was in the
Child’s interest.
Having clarified the burden, we return to Mother’s substantive
argument. She claims that Father failed to present any evidence to support a
change from the status quo. See Mother’s Brief at 23. We disagree. As
mentioned above, Father provided sufficient testimony about how and why
the Child’s life would improve if Father had primary custody of the Child in
Germany. He further testified as to why the continuation of the status quo
was not in the Child’s best interests. The trial found Father’s testimony to be
credible and afforded this testimony dispositive weight. In short, the trial
court properly found that Father had met his burden. Mother’s third claim
warrants no relief.
In her final appellate issue, Mother claims that the trial court abused its
discretion by requiring her to pay for the cost for the Child’s transportation.
Mother explains that she cannot afford to pay for the Child’s international
travel, as her income is comprised of social security disability resulting from
her amputation. Because she cannot afford to fly the Child between the United
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States and Germany to exercise her partial custody, Mother argues that the
trial court effectively awarded Father sole custody. See Mother’s Brief at 22,
25.
Our discussion starts by noting the apparent confusion about how the
transportation costs were allocated. We begin with the plain text of the
October 26, 2022 custody order. Paragraph 4 of the order provides Mother
with three separate periods of partial custody each year:
• Spring break (or Spring holiday, or Mother’s Day)
• Summer break (for two months)
• Winter break (or alternatively, Thanksgiving, at
Mother’s choice).
See Order of Court, 10/16/22, at ¶ 4(a)-(c).
Thus, the trial court’s custody order proposes three international
roundtrips each year. Paragraph 6 of the custody order designates who is
responsible for the transportation costs:
Transportation Costs: The immediate costs of
transportation of A.C.W. to travel to Germany shall be paid
by Father. Father shall be solely responsible for costs of
transportation of the child back to Father’s residence at
winter break. In the alternative, Father shall be solely
responsible for costs of transportation of the Child back to
Father’s residence at Thanksgiving break.
Order of Court, 10/16/22, at ¶ 6 (emphasis added).
At the time of the trial court’s custody decision, the Child resided in the
United States with Mother. Father’s responsibility to cover the “immediate
costs of transportation” seems to mean that Father had to pay for the Child’s
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initial flight to Germany to effectuate the formal transfer of custody. No other
transportation costs could be construed as “immediate,” except the first flight
following the court’s decision. This raises the question, who is responsible to
pay for the Child’s annual custody exchanges thereafter.
Although the provision is silent to Mother’s responsibilities, when read
in conjunction with Paragraph 4 (Custody Schedule), Paragraph 6
(Transportation Costs) implies that Mother is responsible for all transportation
costs except the annual trip back to Germany following winter break. In other
words, she would have to pay for: the roundtrip cost to effectuate her custody
during spring break; the roundtrip cost to effectuate her custody during
summer break; and the cost of the Child’s flight to the United States to begin
Thanksgiving/winter break. In short, Paragraph 4 makes Mother responsible
for 5 out of the Child’s 6 journeys.
But when the trial court addressed Mother’s claim in its Rule 1925(a)
opinion, its reasoning suggested other possible cost allocations. The Rule
1925(a) opinion states:
The court’s order requires Father to provide transportation
costs of the Child to Germany and for Thanksgiving and
winter breaks.[6] Mother has responsibility to pay
transportation costs to her residence. This is a reasonable
arrangement. It is clearly not prohibitive and does not
amount to awarding Father sole physical custody. Mother
did not present any evidence as to transportation costs
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6We clarify that the custody order permits Mother to exercise custody on
either Thanksgiving or winter break. She is not entitled to both.
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which would impact upon her ability to exercise her
custodial rights.
T.C.O. at 13 (footnote added) (emphasis added).
This excerpt could be interpreted as: Mother is only responsible for
Child’s flights to the United States (3 out of the 6 journeys); or, that Mother
is only responsible for the Child’s flights to the United States in the spring and
summer, making Father responsible for all the flights to Germany as well as
the roundtrip cost of the Thanksgiving/winter break custody time (this would
make Mother only responsible for 2 out of the 6 journeys); or, that Father is
responsible for the flights to and from Germany, but that Mother has to pay
the cost of transporting the Child between her airport in the United States and
her residence.7
In his Brief, Father seems to aver that Paragraph 6 made him
responsible for all the transportation costs: “[T]he trial court made it clear in
its order that Father would bear the costs of transportation to effectuate
Mother’s periods of custody with [the Child].” See Father’s Brief at 6.8
Father’s assertion would resolve the question before us. Tempting as it is to
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7 We note that several airports might be available the parties, which then
creates still more confusion as certain airports might result in cheaper flights
for Father, but longer and thus more costly drives for Mother.
8 Notably, all the aforementioned possibilities differ from Father’s original
proposal. Father testified that he proposed paying for the Child’s roundtrip
flight to effectuate Mother’s summer custody, but that Mother should be
responsible for half of the cost for the other custody times. See N.T. (Day 1),
at 58, 60.
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agree with Father’s averment, we simply cannot overlook the plain and
unambiguous terms of the October 26, 2022 order. As it stands, Paragraph
6 makes Mother responsible for all travel except for the flight back to Germany
following Thanksgiving/winter break.
The question remains, is such an obligation an abuse of discretion. After
review, we conclude that it is. In our discussion of Mother’s previous appellate
issues, we emphasized the nature of our standard of review. Deferential
though it is, that same standard of review permits this Court to make our own
inferences and deductions. “Ultimately, the test is whether the trial court's
conclusions are unreasonable as shown by the evidence of record.” See D.K.,
supra.To the trial court’s point, we acknowledge that the record is devoid of
certain particularities. The parties’ exact incomes are not in the record;9
neither is there any testimony about exact travel expenses. Still, the record
includes some details on these subjects. The record indicates that Mother
used to work, but that she is now “deemed disabled” following her illness and
resulting complications. See N.T. (Day 1) at 174. The extent of her disability
was unclear, although Mother was still receiving treatment at Walter Reed at
the time of the hearing. She further testified that she was still unable to drive.
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9 In her Brief, Mother claims that her social security disability payments are
her only source of income. See Mother’s Brief at 15. That information does
not appear in the record. Father testified that his income from the Army
Reserves is in accordance to a pay scale, but did not present an exact figure,
nor did Father testify what he earns as a civilian employee of the Department
of Defense.
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See N.T. (Day 2) at 36. As for the cost of international travel, Father testified
that the price of international flights, though variable, was typically expensive
– particularly around the holidays (which is when the parties’ custody
exchanges take place). See N.T. (Day 1) at 88.
Based on this record, the trial court opined that the transportation costs
imposed onto Mother were not prohibitive. As we are not bound by the court’s
inferences and deductions, we disagree. The international transportation
costs unique to this case are extraordinary in comparison to the costs
associated with interstate custody exchanges, to say nothing of typical
custody exchanges. Add the fact that parties have dramatically different
earning capacities. Add that the plain terms of the order require Mother to
pay for nearly all the Child’s travel. The result is a provision that is manifestly
“unreasonable as shown by the evidence of record.” See D.K., supra.The trial court carefully crafted Paragraph 4 to achieve a custody
schedule that would be in the Child’s best interests; as written, the Child would
not go without seeing Mother for more than three or four months at a time.
However, the trial court cannot achieve the intended result of its order, if
Mother cannot afford the transportation costs set forth in Paragraph 6. Even
one forgone opportunity for partial custody undermines the overall custody
arrangement. Thus, Paragraph 6 constitutes an abuse of discretion, because
it inhibits Mother’s full compliance with Paragraph 4. The order is at odds with
itself.
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For these reasons, we vacate Paragraph 6 of the October 26, 2022
order, while leaving the remainder of the order in effect. We remand for the
trial court to reasonably, and clearly, allocate the transportation costs in a
manner that ensures the parties can effectuate the court’s intended custody
schedule.
In sum: we discern no error or abuse of discretion with the trial court’s
application of the factors enumerated in Sections 5328(a) or 5337(h); and we
further conclude that the trial court properly determined that Father met his
burden of proof that an award of primary physical custody, in Germany, was
in the Child’s best interests. However, we conclude that Paragraph 6 in the
October 22, 2022 order constituted an abuse of discretion. As written, the
provision obligated Mother to pay for nearly all the Child’s transportation
costs. The provision was unreasonable as shown by the evidence of record,
because Mother would be unable to abide by Paragraph 4 of the order without
undue difficulty.
Order affirmed and part and vacated in part. Case remanded for further
proceedings consistent with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/09/2023
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