C.M.K. v. K.E.M.

45 A.3d 417, 2012 Pa. Super. 76, 2012 Pa. Super. LEXIS 112, 2012 WL 1010005
CourtSuperior Court of Pennsylvania
DecidedMarch 27, 2012
DocketNo. 1419 WDA 2011
StatusPublished
Cited by57 cases

This text of 45 A.3d 417 (C.M.K. v. K.E.M.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.M.K. v. K.E.M., 45 A.3d 417, 2012 Pa. Super. 76, 2012 Pa. Super. LEXIS 112, 2012 WL 1010005 (Pa. Ct. App. 2012).

Opinion

OPINION BY

OLSON, J.:

Appellant, C.M.K. (“Mother”), appeals from the order entered on August 18, 2011, denying her petition for relocation and a related request to modify the terms of custody for the parties’ minor son, C.D.M. (born September 29, 2004) (“Child”). After careful review, we affirm.

The trial court set forth the factual background and procedural history of this case as follows.

[Mother] ... was born on August 12, 1970 and resides ... in Grove City, Mercer County, Pennsylvania where she has lived since May of 2010. [Mother] resides in an apartment over a two-car garage with [Child], [K.E.M.] (“Father”) is 41 years old and resides ... in Grove City, Mercer County, Pennsylvania with his paramour, T.W., and her 13[-] year[-]old son, both of whom moved in with [Father] in February of 2010. [Mother] was raised in Conneaut, Ohio, where she attended high sehool[,] but she also resided in nearby Albion, Pennsylvania. [Mother] and [Father] were never married to each other but resided together from January of 2004 to July of 2008 and they lived together with [Child] in Grove City, Pennsylvania. [Mother] is an insurance agent with a Pennsylvania license with the Moore Insurance Agency in Grove City and has been so employed since November of 2004[.] When [Mother] and [Father] lived together, both parents performed parental duties and would take [Child] to the doctor’s office when their schedules permitted.
[Mother] filed a pro se Complaint for Custody originally on November 24, 2008 when [Mother] and [Father] lived two blocks from each other and they entered into a consent custody order at a Master’s conference by order dated December 10, 2008 wherein they agreed to share legal custody with primary physical custody in [Mother] subject to periods of [Father’s] partial custody generally as they had already been practicing.
[Mother] then filed a pro se Petition for Modification on May 25, 2010 seeking a more specific custody order from the December 10, 2008 order. [Mother] and [Father] again entered into a consent order when they appeared pro se before the custody Master resulting in a July 9, 2010 order where they continued to share legal custody but Father’s periods of partial custody were set forth with more particularity on an every other [420]*420weekend schedule from Fridays at 6:00 p.m. through Sundays until 8:30 p.m. and every Wednesday from 6:00 p.m. until 8:30 p.m. as well as a holiday schedule.
[Mother] sent a notice dated June 2, 2011 of a proposed relocation to Albion, Erie County, Pennsylvania to [Father] and [Father] signed his counter-affidavit objecting to relocation on June 27, 2011.
[Child] is currently in the second grade in Grove City, Mercer County school system where he enjoys school and has many friends. [Child] is involved in T-ball, soccer and hockey and both parents attend when their schedules allow. [Child] may be a gifted [student] and may be placed into a gifted program. [Father] regularly exercises his periods of partial physical custody and is actively involved in [Child’s] life, school activities and extra-curricular activities.
[Mother] has located a three-bedroom mobile home with two baths on 2.5 acres near the Borough of Albion which is approximately 68 miles from where [Father] resides. [Child] would attend school at the Northwestern School District which is smaller than the Grove City School District[.]
[Mother] denies that she is moving to live with a man or to get closer to any particular person[.]

Trial Court Opinion, 11/1/11, at 1-5.

At the relocation hearing, Mother, Father, and Father’s girlfriend, T.W., testified. Following the hearing, the trial court, on August 18, 2011, denied Mother’s petition for relocation and modification of the parties’ existing custody agreement. The trial court concluded that, in serving notice of a proposed move and requesting a hearing on her petition to relocate with Child, Mother tacitly conceded that her proposed move involved relocation. The trial court also determined that Mother’s proposed move constituted relocation because it involved change that would significantly impair Father’s ability to exercise his current custodial rights. Lastly, the trial court found that Mother did not meet her burden of proving that relocation with Child would be in Child’s best interest. Thereafter, Mother filed a timely notice of appeal on September 8, 2011. On the same date, Mother filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued its Rule 1925 opinion on November 1, 2011.

In her brief on appeal, Mother raises three issues for our review:

1. Did the trial court err in failing to find that the proposed move would not significantly impair the ability of the nonrelocating [sic] party to exercise his custodial rights?
2. Did the trial court err in failing to find that the Appellant’s testimony and evidence including evidence of present and past abuse perpetrated by the Appellee on the Appellant and the evidence of the benefits to be gained by the move was adequate to meet the burden of showing that the relocation would serve the best interests of the Child?
3. Did the trial court err in focusing on Appellee’s participation in the Child’s sporting activities and disregarding the emotional, social and economic benefits the Child and Appellant would enjoy if permitted to relocate?

Mother’s Brief at 4.

All three claims advanced in Mother’s appeal challenge the trial court’s custody order denying her petition for relocation and related request to modify the [421]*421parties’ custody agreement. We review such custody determinations under the following scope and standard of review.

[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

E.D. v. M.P., 33 A.3d 73, 76 (Pa.Super.2011) (citation omitted). With any child custody case, this Court has long stated that the paramount concern is the best interests of the child. Landis v. Landis, 869 A.2d 1003, 1011 (Pa.Super.2005). This standard requires a case-by-case assessment of all of the factors that may legitimately affect the “physical, intellectual, moral and spiritual well-being” of the child. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
45 A.3d 417, 2012 Pa. Super. 76, 2012 Pa. Super. LEXIS 112, 2012 WL 1010005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cmk-v-kem-pasuperct-2012.