J-S08044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SARAH CLOUSER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL CLOUSER : : Appellant : No. 1376 MDA 2021
Appeal from the Order Entered October 6, 2021 In the Court of Common Pleas of York County Civil Division at No(s): 2016-FC-001261-03
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MAY 2, 2022
Michael Clouser (Father) appeals from the custody order entered in the
York County Court of Common Pleas, granting the petition of Sarah Clouser
(Mother) to relocate with the parties’ minor children, M.C. and C.C.
(collectively, the Children), from Mechanicsburg, Cumberland County,
Pennsylvania, to Emerald Isle, North Carolina. Father avers the trial court
erred in: (1) limiting his presentation of evidence; (2) improperly weighing
particular statutory custody and relocation factors; (3) improperly weighing
M.C.’s testimony while disregarding C.C.’s testimony; and (4) finding
relocation was in the Children’s best interests. We affirm.
I. Facts & Procedural History
Father and Mother, who were divorced in 2019, are the natural parents
of the Children. N.T., 9/24/21, at 34. Their son, C.C., was born in June of J-S08044-22
2011, and their daughter, M.C., in January of 2008. At the time of the
underlying relocation hearing, the Children were 10 and 13 years old,
respectively.
Mother initiated the instant custody action on July 13, 2016, following
the parties’ separation, by filing a complaint for shared legal custody and
primary physical custody, along with notice of proposed relocation with the
Children to Emerald Isle, North Carolina. Mother grew up in North Carolina,
M.C. was born there, and her parents continued to live there. N.T. at 50.
However, Mother soon withdrew her request to relocate. With Father’s
consent, she moved with the Children to Mechanicsburg, Cumberland County.
On August 18, 2016, the trial court issued a stipulated order,1 awarding the
parties shared legal custody, Mother primary physical custody, and Father
partial physical custody on Tuesday and Thursday evenings and alternating
weekends.
In December of 2016, Mother filed a petition to modify custody, again
seeking permission to relocate with the Children to North Carolina. Father
filed a counter-affidavit, objecting to Mother’s petition. Mother withdrew her
request, and, on March 6, 2017, the parties stipulated to an order that
awarded Mother primary physical custody during the school year, and Father
____________________________________________
1 Several orders in this record reflect one date in the text of the order, but are entered on the trial docket one or several days thereafter. For ease of locating these orders in the record, we cite them with their docket entry dates.
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enlarged partial physical custody. The parties also agreed the Children’s
maternal grandparents shall have custody for five weeks in the summer at
their home in North Carolina, with the parties to share physical custody on an
alternating weekly basis for the remainder of the summer.
Next, on February 28, 2018, Mother filed a petition to modify the
custody order.2 However, by stipulated order dated August 17, 2018, the trial
court maintained the same custody order, including the parties’ agreement for
the Children to spend five weeks in the summer with their maternal
grandparents in North Carolina.
Thereafter, on a date not apparent from the record, Mother remarried.
She lived in Mechanicsburg with her husband, R.S. (Stepfather), and her two
stepchildren, who are of similar age to the Children. N.T. at 53, 113. Mother
and Stepfather also share a son, who was born in approximately 2018. See
id. at 114 (son was three years old at the time of the September 2021
hearing). Mother and Stepfather thus have five children living with them. Id.
at 53.
Father remarried in 2019. N.T. at 118. He and his wife, K.C.
(Stepmother), reside in Adams County, which is 30 minutes from Mother’s
2 Mother also sought a finding of contempt against Father, alleging that he, inter alia, refused to allow telephone calls while the Children were in his care, and failed to inform her that he had to work on certain Mondays and refused to tell her who was watching the Children.
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home, along with his two stepchildren, who are also of similar age to the
Children. Id. at 35, 118.
Sometime in July of 2021, Mother filed the underlying petition to
relocate with the Children to North Carolina.3 Mother averred, inter alia, that
Stepfather received a job offer in North Carolina with a salary increase of
approximately $10,000 and the opportunity to advance in the company, which
was not available with his Pennsylvania employer. Father filed a counter-
affidavit, objecting to relocation. On July 29th, Mother requested an expedited
relocation hearing, noting Stepfather’s new employment in North Carolina, as
well as the Children’s school year, would begin in August.4
The trial court conducted a relocation and custody hearing on
September 24, 2021. The court first interviewed the Children in camera,
separately, in the presence of the parties’ counsel. N.T. at 4-31. As stated
above, the C.C. was 10 years old and M.C. was 13 years old at this time. Both
parties and the court referred to the expedited nature of the hearing, for
3 Mother served notice of her request to relocate on Father around July 2, 2021. See Mother’s Return of Service, 7/30/21. However, the notice is stamped with a “filed” date of July 30, 2021, and entered on the trial docket on that same day. Meanwhile, Father’s counter-affidavit is stamped as “filed” approximately two weeks earlier, on July 14th, with a docket entry dated that same day.
4 See 23 Pa.C.S. § 5337(g)(1) (“[E]xcept as set forth in paragraph (3) [pertaining to exigent circumstances,] the court shall hold an expedited full hearing on the proposed relocation after a timely objection has been filed and before the relocation occurs.”).
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example noting the amount of time left for the hearing. See, e.g., N.T. at 47
(Father’s counsel noting “we have less than an hour and 15 minutes,” and trial
court agreeing, stating, “Yeah, you’ve got to speed this up.”), 71, 73 (trial
court limiting both Mother’s direct and cross examination, as it had to allow
sufficient time for Father’s testimony). Mother and Father testified first, and
then Stepfather and Stepmother testified.
At the time of the hearing, the parties had informally agreed for Father
to have more custody time than set forth in the March 2017 and August 2018
stipulated orders. N.T. at 36, 84. Whereas the 2018 order awarded Father
custody on alternating weekends from Thursday after school to Monday
morning, the parties extended custody through Tuesday morning, as well as
alternating Monday overnights.
The parties stipulated they currently lived approximately 30 minutes
from each other. N.T. at 35. Meanwhile, Mechanicsburg and Emerald Isle,
North Carolina are 457 miles apart, and the driving time is approximately eight
to nine hours. Id. at 36. The trial court had indicated its belief that the
Children’s schools in Mechanicsburg and the North Carolina schools were
comparatively equal. See id. at 49.
Mother testified to the following. Stepfather was a project manager in
the construction industry. N.T. at 51-52. He accepted an employment offer
in North Carolina as a project engineer, which would present a salary increase
of approximately $50,000 over six months, as well as more opportunities for
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advancement than his current position. Id. at 51-53. This salary increase
could allow Mother to work fewer hours. Id. at 49. Furthermore, whereas
Stepfather currently commutes 1 hour and 20 minutes each way to his current
job in Maryland, his commute in North Carolina would be 25 to 30 minutes.
Id. at 53. Mother works as a dental hygienist, has applied for a dental
hygienist license in North Carolina, and has contacted potential employers
there. Id. at 52, 54-55.
Mother also testified her parents, in North Carolina, are retired and could
help with supporting the family. N.T. at 53-54. According to Mother, the cost
of living was lower in North Carolina, and Mother could “get the same size
house that [she and Stepfather] own now,” for “$400 less a month in
mortgage.” Id. at 55. Additionally, a public college in North Carolina would
cost $5,000 to $6,000 less per year than a Pennsylvania public college. Id.
at 58.
Mother explained why she desired to move to North Carolina with the
children:
The kids love it there. My husband got offered a position making more money which would allow me to work less so that I can volunteer more in the kids’ classrooms. The kids love going fishing with my dad and golfing. They’ve made friends there through their summer camp that they’ve maintained contact with throughout the year.
Id. at 49. Mother stated that during the school year, she would transport the
Children to Pennsylvania for long weekends, working with Father’s schedule.
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Id. at 39-40. Mother also agreed to Father having six to eight weeks’ custody
during the summer. Id. at 40.
Father testified to the following. During the school year, the Children
sometimes spend Monday evenings overnight with their paternal grandmother
and step-grandfather. Id. at 86. The Children also regularly visit with their
paternal grandfather. Id. Father and the Children spend many weekends
visiting Stepmother’s parents and the Children’s step-cousins. Id. at 85-86.
Father did not believe the Children “fully understand the impact of . . .
relocation,” as they may not understand that “all of the little things [they] do
together” will become “hard to do anymore.” N.T. at 93-94. Father believed
relocation would hurt the Children’s emotional development. Id. at 99. He
testified the parties’ son, C.C., “has always had an issue with confidence. And
we’ve done a really good job of working on him with that [and] he has gotten
a lot better, but he still has those tendencies[,] and if I’m not around[,] I won’t
be able to help him through it.” Id. With respect to their daughter, M.C.,
Father testified she has had “a complete change in her demeanor.” N.T. at
100. He explained, “She’s very distant, she can be short with everyone in the
house, especially the kids, and just wants to seclude herself.” Id. Father and
Mother both testified M.C. was receiving therapy. Id. at 72, 92. Father
expressed concern he would not be able to support M.C.: “[S]he is dealing
with [things] that she’s not open about, and I don’t believe that having her
moving away where I will not be a part of her life will help.” Id. at 100.
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Father was also concerned that “after a couple trips back and forth” to
North Carolina, the Children will “get tired of that drive and [not] want to
make it anymore.” N.T. at 94. He also calculated the Children would miss
two days of school for each trip to Pennsylvania, and while “some days are
remote learning,” the Children would “be in the car, which is not a good
environment [for] schoolwork.” Id. at 94-95. The Children would also “be
travelling late at night . . . and on nights before school nights,” which could
prevent “proper rest before school.” Id. at 95. On cross examination, Mother
agreed that each visit would involve at least 15 hours of riding in the car. Id.
at 74.
M.C., age 13, testified in camera to the following. She stated she did
not get along with Father about 75% of the time, and when asked why by the
trial court, she responded, “Just as we grew older[,] we kind of grew apart I
guess.” N.T. at 11. With respect to the proposed relocation, M.C. stated:
At first when [Mother] told us . . . I was kind of skeptical. I thought, well, there [are] a lot of people [in Pennsylvania] that I want to stay with, but as the year went on, I just kind of lost those people[. And] when I went to North Carolina . . . I felt . . . I could really connect with people there more, and I felt like that was more of a home [than] Pennsylvania[.] So I then decided that I would rather go to North Carolina than stay in Pennsylvania.
Id. at 15. M.C. explained that she attends a week of camp in North Carolina
each summer, she “connected with a lot of people[, and t]hey’re part of the
reason why [she] wanted to go.” Id. at 20. M.C. maintains contact with these
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friends and feels they are better friends than her friends in Pennsylvania. Id.
at 20-21.
C.C., age 10, testified in camera regarding his preference on relocation:
[C.C.:] I don’t really want to move.
[Trial Court:] You really don’t want to move. Your sister told me that you would say that.
A. Because my friends are here, my family is here[.] I don’t really have any family in North Carolina other than grandpa.
Q. Well, you have a grandma and grandpa in North Carolina, don’t you?
A. Yeah, but then I have a grandma and grandpa here. Four other ones — or six other ones here too, and a lot of family too.
N.T. at 29. When asked by the trial court whether he would, if he moved to
North Carolina, want to spend more than half his summer with Father, even if
M.C. did not spend the same amount of time, C.C. replied he would want to.
Id.
As stated above, Stepfather and Stepmother also testified. Following
the testimonial evidence, the trial court granted Mother’s request to relocate
with the Children and modified the existing custody order, effective upon
relocation. The court reviewed, on the record, the statutory factors for
relocation and custody5 (discussed infra). N.T. at 129-38. Generally, the
court adopted Mother’s proposal for Father to have custody one weekend,
5 See 23 Pa.C.S. §§ 5328(a), 5337(h) (discussed infra).
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Friday through Sunday, each month. See Mother’s Exh. M17. The court also
granted Mother five weeks of custody in the summer, with Father having the
remaining weeks. N.T. at 126. Mother was to provide all transportation for
the visits to Father. Id. at 127. The court also “encourage[d] the parties to
perhaps give [F]ather some more time in the summer with his son . . . who
clearly expressed a preference to spend most of the summer with his father.”
Id. at 128.
The trial court entered its custody order on the docket on October 6,
2021. Father filed a motion for reconsideration, which the court denied on
October 28th. Father timely filed a notice of appeal, along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). The court has also issued a Rule 1925(a) opinion.
II. Statement of Questions Involved
On appeal, Father presents five issues for review, which we have re-
ordered for ease of disposition:
A. Whether the Trial Court committed an abuse of discretion or an error of law in precluding Father from introducing evidence, including testimony of witnesses, and limiting Father’s ability to cross-examine Mother’s witnesses?
B. Whether the Trial Court committed an abuse of discretion or an error of law in considering, and heavily weighing, the increase in salary of Mother’s husband and disregarding the evidence that the only family near the proposed relocation are Mother’s parents with whom the [C]hildren already spend a significant period of time?
C. Whether the Trial Court committed an abuse of discretion or an error of law in failing to consider that the relocation will deprive
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the [C]hildren of having Father participate in school or extracurricular activities?
D. Whether the Trial Court committed an abuse of discretion or an error of law in considering the testimony of the parties’ daughter while completely disregarding the testimony of the parties’ son?
E. Whether the Trial Court committed an abuse of discretion or an error of law in granting Mother the ability to relocate with the [C]hildren to North Carolina where, as here, the evidence did not establish that the relocation was in the [C]hildren’s best interest or permanent welfare or otherwise justified by the relocation factors set forth in Section 5337(h) of the Pennsylvania Child Custody Act[?]
Father’s Brief at 5.
III. Standard of Review
We note the scope and standard of review of a custody and relocation
order:
[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.
Moreover,
[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
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The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.
The test is whether the evidence of record supports the trial court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations omitted).
“It 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 630, 632 (Pa. Super. 2005). “[T]he 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).
IV. Statutory Factors for Custody & Relocation
In custody cases, the paramount concern is the best interests of the
child. Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation
omitted). “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual wellbeing.” Id. (citation omitted).
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Section 5328(a) of the Child Custody Act sets forth factors to be
considered by a trial court before fashioning a custody order:
(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)(1) and (2) (relating to consideration of child abuse and involvement with protective services).
(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.
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(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)(1)-(16).
Furthermore, Section 5337(h), sets forth 10 factors that a trial court
must consider when considering a petition for relocation:
(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.
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(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.
(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)(1)-(10).
“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 [5337(h).]” 23 Pa.C.S. § 5337(i)(1). When
rendering a decision on relocation that also involves a custody decision, the
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trial court must consider all 10 statutory relocation factors and all 16 custody
factors. A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013).
V. Trial Court’s Assessment of Statutory Factors
Although Father presents specific challenges to only some of the
statutory factors on appeal, we must review them against the trial court’s full
assessment of all 17 custody factors and 10 relocation factors. As stated
above, the court made its findings of facts on the record at the September 24,
2021, relocation hearing. See N.T. at 129-38.
With respect to relocation, the trial court found that Section 5337(h)(1)
through (7) favored relocation. It made the following findings. Under the
Subsection (1) factor — nature, quality, extent of involvement and duration
of the Children’s relationships with their parents, siblings and other significant
persons — Mother has been the majority caretaker “for quite some time.” N.T.
at 129. The court was pleased that “Father has . . . stepped up his game and
spent more time with [the C]hildren over the last” two years, “but that has
been with the full cooperation of [M]other, who has gone out of her way to
make sure [F]ather . . . gets additional times.” Id. With respect to the
Subsection (2) factor — the Children’s age, developmental stage, and needs
and the likely impact relocation will have on their child’s physical, educational
and emotional development — M.C. was “very much in favor of the relocation”
but C.C. was “really not in favor[.]” Id. at 130. Nevertheless, both “[C]hildren
have moved in the past fairly frequently have been resilient to those
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changes[,]” and M.C. “has started to look at colleges in the North Carolina
area and seems to have quite a connection with [that] area.” Id. Thus, on
balance, “the benefit of the older child overcomes the detriment to the
younger child[.]” Id.
With regard to the subsection (3) factor — the feasibility of preserving
the relationship between the nonrelocating party and the Children through
suitable custody arrangements — the trial court found its custody order
granted “a substantial amount of time” for the Children to be with Father, and
“found it admirable that [M]other is willing to provide all the transportation.”
N.T. at 130-31. The subsection (4) factor is the Children’s preferences, which
the trial court had addressed above. See id.
Next, the trial court found the subsection (5) factor — whether there
was an established pattern of conduct of either party to promote or thwart the
relationship of the Children and the other party — “weighed heavily in favor
of relocation,” as Mother has “tried [to] promote a good relationship between
the [C]hildren and [F]ather.” N.T. at 131-32. The court also found that under
subsection (6) — whether the relocation will enhance the general quality of
life for the relocating party, including a financial or emotional benefit — also
weighed “heavily in favor of relocation.” Id. at 132. Mother and her family
will benefit financially, the maternal grandparents “are retired [and] nearby
to help with the [C]hildren and other things,” and “Mother will be able to work
less and spend more time with the [C]hildren and their activities[.]” Id.
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Finally, the trial court found the subsection (7) factor — whether
relocation will enhance the general quality of life for the Children, including
any financial or emotional benefit or educational opportunity — was “a little
more difficult . . . to analyze.” N.T. at 132. While “the [C]hildren will have
some enhancement to their qualify of life, . . . they will not be able to spend
quite as much time with [F]ather and will have these trips back and forth.”
Id. Nevertheless, the court considered the availability of FaceTime and Zoom,
and that “children are spending virtual time with parents more and more.”
Id. at 132-33. The court thus concluded relocation would not make the
Children’s quality of life worse, but “will be at least the same, if not better.”
Id. at 133. The court found the remaining factors were either neutral or not
applicable. Id. at 133-34.
With respect to the custody factors, the court weighed Section
5328(a)(1), (3), (7), (9) and (10) in Mother’s favor. N.T. at 134-36. The
court heavily weighed subsection 5328(a)(1) — which party is more likely to
encourage contact between the Children and another party. The court
considered that “[M]other has for at least the last three years made it so that
[F]ather’s partial custody rights are now . . . about 60/40. [T]he court trusts
that [M]other will do likewise and try to make sure that [F]ather and these
children have as much contact and relationship as possible[.]” Id. at 134.
Further, the court heavily weighed Section 5328(a)(3), the parental duties
performed by each party, and (10), which party is more likely to attend to the
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Children’s daily physical, emotional, developmental, educational and special
needs. The court found, “[M]other has not only been the majority custodial
parent in terms of time, but also . . . making sure the [C]hildren get to their
games and practices and attending them and cheering them on.” Id. at 135.
The court also found subsections (7) and (9) — the Children’s well-reasoned
preferences, and which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the Children adequate for their
emotional needs — weighed in Mother’s favor.
However, the trial court weighed factor (4) — the need for stability and
continuity in the Children’s education, family life and community life — in
Father’s favor. N.T. at 135. The court found the remaining factors were either
neutral or not applicable.
VI. Evidentiary Claims
In Father’s first issue, he asserts the trial court abused its discretion in
precluding him from presenting evidence and calling additional witnesses, and
in limiting his cross examination of Mother. Father’s Brief at 19-20. He avers
the court commenced the relocation hearing at 1:30 p.m. and made it “clear
that it would conclude the hearing that day.” Id. at 19. Aside from
Stepmother and Stepfather, the court “prohibited any additional witnesses.”
Id. at 20. Father concludes he was denied a full hearing on the important
issue of whether the Children should be permitted to relocate more than 450
miles away. Id. We conclude this issue is waived.
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It is well-settled that issues not raised in the trial court are waived and
cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). This Court
has explained:
On appeal, we will not consider assignments of error that were not brought to the tribunal’s attention at a time at which the error could have been corrected or the alleged prejudice could have been mitigated. “[O]ne must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.
State Farm Mutual v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015) (en banc)
(citations omitted).
Upon review of the relocation hearing transcript, we observe Father did
not request testimony of additional witnesses. He also did not object to the
court’s limitation of his cross examination of Mother. See N.T. at 73 (trial
court advising Father’s attorney just before cross examination of Mother,
“[Y]ou’ve got about five minutes so make the best of it.”). Accordingly, any
challenges related thereto are waived for our review. See Pa.R.A.P. 302(a);
State Farm Mutual v. Dill, 108 A.3d at 885.
Furthermore, Father does not identify which witnesses he would have
called, what they would have testified to, nor what additional evidence he
would have presented. Without any explanation, Father’s issues are also
waived for failure to develop an argument. See Pa.R.A.P. 2119(a) (argument
shall include such discussion as is deemed pertinent); Harris v. Toys "R" Us-
Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005) (“failure to develop an
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argument with citation to, and analysis of, relevant authority waives that issue
on review”).
VII. Challenges to Specific Statutory Factors
We address Father’s second and third issues together. First, he asserts
the trial court abused its discretion in: (1) considering, as well as heavily
weighing, the increase in Stepfather’s salary; while (2) disregarding that the
only family in North Carolina were the Children’s maternal grandparents.
Father’s Brief at 23. Father maintains the “the only evidence” presented by
Mother in support of relocation were her desire to reside in North Carolina, an
increased financial benefit in the form of Stepfather’s new job, and increased
time with the maternal grandparents. Id. However, Father claims, “[t]hese
alleged benefits are simply insufficient to warrant a relocation.” Id.
Father’s third claim on appeal is that the trial court abused its discretion
in failing to consider his limited ability to participate in the Children’s school
and extracurricular activities following relocation. Father’s Brief at 25. Father
reasons he would have to use vacation days to travel to North Carolina, where
he would prefer to use his vacation days to spend time with the Children in
Pennsylvania.6 Father also challenges the trial court’s finding that he has, in
the past, had to miss the Children’s activities due to work. Id. at 25-26.
6 This issue was preserved for appeal, as Father testified to having to use vacation days to travel to North Carolina. See N.T. at 90.
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Father maintains there was no prior hearing in this case, and the court’s
finding is not supported by the evidence. Id. at 26. No relief is due.
First, pursuant to Section 5337(h)(6), the trial court was required to
consider whether relocation will enhance Mother’s general quality of life. See
23 Pa.C.S. § 5337(h)(6). Thus, the court properly considered Stepfather’s
increased salary, as well as Mother’s consequent ability to work less and spend
more time with the Children, and the availability of her parents to assist with
the Children. See N.T. at 132. In addition, to the extent Father challenges
the weight given to Stepfather’s increase in salary, we defer to the findings of
the trial court. See A.V., 87 A.3d at 820.
Next, with respect to Father’s limited ability to participate in the
Children’s activities in North Carolina, the trial court reasoned:
The Court did take the impact that relocation would have on Father’s ability to participate into consideration, as well as . . . his testimony about regretting having to miss parent-teacher conferences and various sporting activities due to his work. See [N.T.] at 87-90. The Court also noted Father’s ability to attend events in its analysis of [Section 5328(a)(3):]
Factor number 3, the parental duties performed by each parent.
While [F]ather has performed more duties as the years have gone on, he candidly admits that sometimes work gets in his way of going to practices and games and so forth. Clearly [M]other has not only been the majority custodial parent in terms of time, but also intention [sic] and making sure the [C]hildren get to their games and practices[,]attending them and cheering them on. That is one reason why the Court has kept [M]other in majority physical custody.
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While the Court admires [F]ather has done his best, and it may be unavoidable on [F]ather’s part, but he has had to make concessions to the parental duties for his job, which is unfortunate, but nevertheless that is a factor heavily in favor of [M]other.
Trial Ct. Op., 11/11/17, at 16-17 (paragraph breaks added), quoting N.T. at
134-35.
Father’s assertion, that there was no evidence to support a claim that
Mother retained primary physical custody due to his inability to participate in
school or other activities, is belied by the record. Father testified to missing
past activities. He acknowledged he was not able to attend every parent-
teacher conference, but explained Mother has relayed any pertinent
information. N.T. at 87. Father also testified that in the prior year, he missed
“a lot” of M.C.’s volleyball games due to his work. Id. at 88. However, he
watched the games on his work computer and texted with Mother to ask how
M.C. was playing. Id. at 88-89. Father also acknowledged he missed C.C.’s
Saturday football games, when he does not have custody, due to work. Id.
at 89. However, when he is available, he makes “every effort to be there.”
Id. The trial court considered this testimony in reaching its conclusions. See
N.T. at 135.
While Father’s arguments do not address the remaining statutory
custody and relocation factors, we review his claims against the trial court’s
assessment of all the factors. See A.V., 87 A.3d at 820 (parties cannot dictate
the amount of weight the trial court places on evidence, and we find no abuse
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of discretion if the trial court’s consideration of the Children’s best interests
was careful and thorough). The trial court properly considered these factors,
and was within its discretion in weighing them, against the other statutory
factors governing both relocation and custody. See A.M.S., 70 A.3d at 836
(trial court must consider all 10 statutory relocation factors and all 16 custody
factors when making a decision on relocation that also involves a custody
decision). Accordingly, no relief is due.
VIII. The Children’s Testimony
In his fourth issue, Father asserts the trial court abused its discretion in
considering M.C.’s testimony, while disregarding C.C.’s testimony. Father’s
Brief at 20. Father also claims the court “failed to consider improper influence
by Mother,” where Mother “admitted . . . during cross-examination . . . that
[M.C.] has had a history of pitting the parents[ ] against each other,” Mother
has instructed M.C. “to delete messages,” and Mother told M.C., “[I]f you want
any chance of us moving[,] you have to go to court in one week. This is not
the time to rock the boat.” Id. at 20-21. We conclude no relief is due.
Sections 5337(h)(4) and 5328(a)(7) both require a trial court to
consider a child’s preference, considering the age and maturity of the child.
23 Pa.C.S. §§ 5328(a)(7), 5337(h)(4). Father does not address M.C.’s stated
reasons for wanting to relocate; she testified she has a connection with her
friends in North Carolina, who are better friends than her friends in
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Pennsylvania. See N.T. at 20-21. She also stated North Carolina felt “more
of a home than Pennsylvania.” Id. at 15.
While noting that it was not bound completely by the Children’s
preference, the court considered that M.C. was “very much in favor of”
relocation, while C.C. was “really not in favor.” N.T. at 130. The court did
not, as Father claims, disregard C.C.’s testimony, but instead weighed it less
than M.C.’s testimony because she was older and more mature. Id.; Trial Ct.
Op. at 15. The court reasoned:
These children have moved in the past fairly frequently and have been resilient to those changes. The [c]ourt notes that the child wanting to relocate is the older of the two . . . and in fact has started to look at colleges in the North Carolina area and seems to have quite a connection with the North Carolina area[. T]herefore, the benefit to the older child overcomes the detriment to the younger child. [T]he court finds [the factor of the Children’s preferences] in favor of relocation.
N.T. at 130. The court properly exercised its discretion in weighing the
Children’s testimony. See A.V., 87 A.3d at 820 (parties cannot dictate the
amount of weight the trial court places on evidence). On appeal, we do not
disturb these findings. See King, 889 A.2d at 632 (this Court gives due
deference to trial court’s weight and credibility determinations).
With respect to Father’s allegation of Mother’s improper influence over
M.C., we note this claim was not included in his Rule 1925(a)(2)(i) concise
statement of errors complained of on appeal. Accordingly, it is waived. See
Pa.R.A.P. 1925(b)(4)(vii).
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In any event, we note that when asked by the trial court whether she
talked to Mother or Father about relocation, M.C. replied she did not. See
N.T. at 19. She stated, “[Mother] kind of just let me say what I want to say.
She didn’t really coach me or anything and I didn’t talk to my dad about this
because we’re on different sides.” Id. The trial court did not find Mother
improperly influenced M.C.’s preference, and we would discern no abuse of
discretion.
IX. The Children’s Best Interests
In his final issue, Father asserts the trial court abused its discretion,
where the evidence did not establish that relocation is in the Children’s best
interests. Father incorporates the arguments presented in the foregoing
issues. He further alleges the court considered Mother’s personal happiness
to the exclusion of the other relocation factors, especially his inability to
exercise meaningful periods of custody. Father’s Brief at 19. We decline to
disturb the trial court’s findings.
As stated above, the paramount concern in a custody matter is the
child’s best interests. See A.V., 87 A.3d at 820. “The best-interests standard,
decided on a case-by-case basis, considers all factors that legitimately have
an effect upon the child’s physical, intellectual, moral, and spiritual wellbeing.”
Saintz, 902 A.2d at 512. We have reviewed above the trial court’s
assessment of all the statutory custody and relocation factors.
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Section 5337(h)(3) requires a trial court to consider “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.” 23 Pa.C.S. § 5337(h)(3). In assessing this
factor, the trial court reasoned:
It’s always a difficult factor[ ] in these relocation trials. The Court has put together an order that will have a substantial amount of time of these children spending with their father [sic], and it is hoped as put forth in the order that the parties will try to arrange a way for [C.C.] to spend even more time with the nonrelocating party, the father. The Court found it admirable that [M]other is willing to provide all the transportation. Therefore, the Court has tried to make a custody arrangement with as little disadvantage to [F]ather’s relationship with the [C]hildren as possible.
N.T. at 131.
Here, Father’s existing custody schedule was modified to less, but more
extended contact with the Children due to the geographical distance. Because
Section 5337(h)(3) is one of 10 factors that the court had to weigh in
assessing the Children’s best interest, the necessity of altering Father’s partial
physical custody schedule does not, on its own, defeat the order granting
Mother’s proposed relocation.
The trial court emphasized at the conclusion of the hearing,
Mom, you’ve obviously been pretty generous to [D]ad in the past about giving him extra time. When you get 8 hours away from him, I expect you to continue that and quite frankly if you don’t, I hope he brings something into court because I might change it back, to be very blunt. . . .
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N.T. at 138. See also Jordan v. Jackson, 876 A.2d 443, 452 (Pa. Super.
2005).
Based on our review of the record, the parties’ briefs, and the trial
court’s assessment of all the statutory factors, we conclude the court’s
consideration of the Children’s best interests was careful and thorough. See
A.V., 87 A.3d at 820. The court properly considered how relocation and a
modification of the existing custody order would affect the Children’s physical,
intellectual, moral, and spiritual wellbeing. See Saintz, 902 A.2d at 512. In
deferring to the trial court’s weight and credibility determinations, and in light
of the record evidence, we discern no abuse of discretion or reversible error.
Accordingly, we affirm the order granting Mother’s petition to relocate
and modifying the custody order.
X. Conclusion
In conclusion, we affirm the order granting Mother’s petition for
relocation and modifying the parties’ custody order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 05/02/2022
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