D.P.L. v. V.I.R.

Opinion

J-A14028-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.P.L. IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

V.I.R.

Appellant No. 207 EDA 2017

Appeal from the Order Entered December 21, 2016 In the Court of Common Pleas of Northampton County Civil Division at No(s): C-48-CV-2016-05812

BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017

V.I.R. (“Mother”) appeals from the December 21, 2016 custody order

denying her motion to relocate with her two children, T.B.L. and S.B.L, from

Bethlehem, Pennsylvania to Smyrna, Delaware. We affirm.

T.B.L and S.B.L were born during June 2003 and March 2005,

respectively, of Mother’s relationship with D.P.L. (“Father”). Mother and

Father never married. Between 2003 and 2010, the family resided together

in New York, New York, and then, in Bushkill, Pennsylvania. Father worked

full-time in New York City, commuting from Bushkill when necessary.

Mother occasionally worked part-time. Mostly, she remained home to care

for the children. J-A14028-17

Mother and Father’s relationship was tumultuous, and on several

occasions, Mother left the family home with T.B.L. and S.B.L without notice

to Father. During 2010, Mother and the girls relocated to Bethlehem,

approximately one hour south of Bushkill. For the next year, Father

exercised physical custody every weekend. However, he eventually stopped

appearing for the custody exchanges and ultimately ceased contact with the

children for approximately five months. Father blamed his inactivity upon a

combination of his frustration with Mother’s noncompliance with the custody

arrangement and his contraction of pneumonia. Nevertheless, the extended

absence caused T.B.L. and S.B.L to become estranged from Father, a

impediment which continues to plague their interactions with him.

During 2012, Father filed a petition for custody, and following court-

ordered reunification therapy and a period of supervised visitation, Father

was awarded physical custody on alternating weekends. Mother remained

the children's primary custodian. Although Father’s relationship with his

daughters did not improve, the court-ordered custody arrangement

remained unchanged.

Mother currently resides in Bethlehem, Pennsylvania. She is a

production technician for Bimbo Bakeries. During April 2015, Mother

married K.B., who is on active duty with the United States Air Force. K.B.,

currently serving a four-year enlistment, is stationed in Dover, Delaware.

-2- J-A14028-17

She intends to remain on active duty status for a total of twenty years, when

her military retirement becomes available.

Father resides with his wife, M.L., and his five-year old stepdaughter in

the former family home in Bushkill, Pennsylvania. He continues to commute

to his employment as a building superintendent at a commercial building in

Manhattan, a position that he has maintained for twenty years.

On July 8, 2016, Mother filed a petition for relocation seeking to

relocate with the children to Smyrna, Delaware, to reside in the home owned

by K.B. The trip from Bethlehem to Smyrna takes approximately two-and

one-half hours by automobile. Father responded with a counter-affidavit

lodging his objection to the proposed relocation pursuant to § 5337(h).

During the ensuing two-day non-jury trial, Mother testified, inter alia,

regarding the benefits of the proposed relocation to Smyrna. She does not

have employment prospects in Delaware. Instead, Mother intends to pursue

her education while K.B. supports the family financially. She posited that

the relocation would allow her to spend more time with T.B.L and S.B.L and

be more involved in their education, social life, and physical activities. She

testified that the school system is comparable to the school district that the

children currently attend. Ultimately, Mother desired to move to Delaware

so that she and the children can be closer to K.B., who presented additional

testimony about her home, the surrounding community, and her relationship

with T.B.L and S.B.L.

-3- J-A14028-17

As it relates to Father, Mother proposed that he exercise physical

custody one weekend per month during the academic year and extended

periods over the summer vacations. She recommended that the custody

exchanges occur at an approximate half-way point between Bushkill and

Smyrna.1

The trial court interviewed T.B.L and S.B.L. separately in chambers.

Both girls stated their preference to relocate to Delaware and acknowledged

their extreme animosity toward Father, whom they address by his first

name. Although the older daughter, T.B.L., was able to identify the source

of her acrimony, i.e., feelings of abandonment associated with Father’s

extended absence and annoyance with what she perceives as his attempts to

tear her from Mother, eleven-year-old S.B.L. has difficulty articulating her

feelings. She simply stated that she does not feel comfortable around

Father, who makes her feel like a “random stranger.” N.T., 10/12/16, at 61.

In addition, the trial court considered the opinions and

recommendations of two court-appointed experts, Ronald J. Esteve, Ph.D.

and Anthony Cuttitta, a licensed clinical social worker. Both experts

confirmed the girls’ severe hostility toward Father and recommended, inter

alia, that Father have frequent, consistent, and extended interactions with

his daughters in order to improve the anemic father-daughter relationships. ____________________________________________

1 The most direct route between the communities by automobile is an estimated three-and-one-half hour trip.

-4- J-A14028-17

While neither expert advocated against relocation, both recognized that the

additional distance could cause further harm to the strained parent-child

relationship. Specifically, Dr. Esteve opined that the distance could make it

difficult to implement his recommendation to increase the frequency and

duration of Father’s contacts with T.B.L. and S.B.L. N.T., 8/31/16, at 17,

20, 23-24. Similarly, when asked about the proposed relocation’s impact

upon the continuing reunification process, Mr. Cuttitta explained,

In terms of attachment issues, the girls attaching to him emotionally and psychologically, I don’t think it would help . . . if he saw them, you know, very intermittently or [for a] couple weeks in the summer here and there. I think that kind of diminishes his significance in their lives, and I think it would continue to alienate him from their lives as a significant object. So no, I don’t think that would help.

Id. at 42.

Following the close of evidence and review of the parties’ legal

memoranda, the trial court entered the above-referenced order denying

Mother’s petition to relocate to Delaware. Mother filed a timely notice of

appeal and complied with the trial court order directing her to file a concise

statement of errors complained of appeal pursuant to Pa.R.A.P. 1925(b).

She raises one question for our review: “Did the Court err in not granting

Mother’s [p]etition for [r]elocation?” Mother’s brief at 23.

We review the trial court’s custody order for an abuse of discretion.

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial

court’s factual findings that are supported by the record and its credibility

-5- J-A14028-17

determinations. Id. This Court will accept the trial court’s conclusion unless

it is tantamount to legal error or unreasonable in light of the factual findings.

Id.

In relation to relocation, the Child Custody Law provides:

(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.

(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.

-6- J-A14028-17

(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).

In denying Mother’s petition to relocate the children from Bethlehem,

Pennsylvania, to Smyrna, Delaware, the trial court considered the ten

relocation factors enumerated in § 5337(h). Specifically, the court found

that §§ 5337(h)(1), (2), (3), and (5) favored Father to varying degrees and

that, while §§ (h)(4), (6), and (7) militated in favor of Mother, those

considerations were insufficient to warrant relocation. As part of its

consideration of § h(10), the catchall factor, the trial court reviewed the best

interest factors outlined in § 5328(a)2, particularly §§ (a)(11) and (13),

____________________________________________

2 § 5328. Factors to consider when awarding custody.

(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 (Footnote Continued Next Page)

-7- J-A14028-17

_______________________ (Footnote Continued)

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.

(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 (Footnote Continued Next Page)

-8- J-A14028-17

relating respectively to the proximity of the residences and the levels of

conflict and cooperation between the parties. The remaining relocation

factors were either neutral or inapplicable.

The crux of Mother’s argument is that the trial court erred in

considering the statutory relocation factors through the lens of T.B.L.’s and

S.B.L.’s acrimony for Father and the impact of the proposed relocation upon

the ongoing efforts to rehabilitate those relationships.3 Mother essentially

asserts that the trial court was required to examine the relevant statutory

factors free of any hue cast by the critical need to repair the vitriolic father-

daughter relationships. She specifically identifies the trial court’s _______________________ (Footnote Continued)

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). 3 To the extent Mother asserts that the trial court’s concern for the father- daughter relationships was not warranted because Father created the situation by abandoning T.B.L and S.B.L. for five months during 2011, the certified record belies the factual assertion that Father was solely responsible for the absence. Specifically, the trial court found that Father had explained the hiatus as being triggered by a severe illness and his frustration with Mother’s noncompliance with the custody order. See Trial Court Order and Opinion, 12/19/16, at 7. As the record sustains this factual finding, we will not disturb it. See N.T., 10/12/16, at 84-85.

-9- J-A14028-17

considerations of factors one, two, four, six, seven and eight as evidence of

the court’s preoccupation with the effect that the relocation would have upon

the parent-child relationships. Essentially, she complains that the trial court

assessed greater weight to factor three regarding the preservation of the

girls’ relationships with Father, than all of the remaining considerations

combined. In sum, she asserts that the court predetermined that the

proposed relocation would impact the parent-child relationship adversely and

concluded that this reality “wipes out all other considerations and outweighs

each individual factor.” Mother’s brief at 28. We disagree.

Mother’s arguments fail for several reasons. First, the underpinnings

of her assertions regarding the court’s consideration of specific factors are

faulty. Mother’s objections to the court’s analysis under factor one fails

because, contrary to her protestations, the status of the father-daughter

relationships is particularly salient to the court’s consideration of “The

nature, quality, extent of involvement and duration of the child[ren]’s

relationship with . . . the nonrelocating party.” 23 Pa.C.S. § 5337(h)(1).

Likewise, the extreme animosity and parental alienation that is present in

this case is significant to the court’s proper contemplation of “the likely

impact the relocation will have on the child's physical, educational and

emotional development.” Id. at § 5337(h)(2). Similarly, the trial court could

not effectually weigh the stated preferences of T.B.L and S.B.L. in favor of

relocation pursuant to § 5337(h)(4) without also accounting for their disdain

- 10 - J-A14028-17

for Father, ambivalence toward his hardship, and the aggravating effects

that the proposed relocation would have upon the already-strained rapport.

As the foregoing statutory factors implicate T.B.L.’s and S.B.L.’s

relationships with Father, we reject Mother’s contention that the court erred

in examining those considerations through the lens of Father’s ongoing

efforts to rectify the turbulent dynamic among him and his daughters.

In relation to the sixth and seventh factors, which Mother complains

were improperly weighed, the trial court found that both components

militated in favor of relocation but that they were insufficient to overcome

the harmful effect that the relocation would have on the children’s

relationship with Father. It is beyond argument that the mandate to assess

the statutory factors and to balance those collective assessments rests with

the trial court as the ultimate arbiter of fact. As we explained in M.J.M. v.

M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), “it is within the trial court's

purview as the finder of fact to determine which factors are most salient and

critical in each particular case.”

Mother’s contention that the trial court misapplied the eighth factor,

relating motives, fares no better. The assertion is simply incorrect. The trial

court found that the motives of both parties were sincere and did not weigh

the factor in favor of Father. Instead, the court recognized that Mother’s

decision to relocate three-and-one-half hours away from Father’s home

placed her desire to be with K.B. above Father’s interest in realizing a

- 11 - J-A14028-17

constructive relationship with his daughters. As this is an accurate

observation of the circumstances, Mother’s attempts to assail it as an

improper consideration fails.

Moreover, the oversight that Mother requests this Court to exercise

over the trial court’s consideration of the statutory factors is contrary to our

jurisprudence. A party cannot dictate the weight that the trial court

attributed to the evidence or its consideration of any single factor. A.V. v.

S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (citation omitted) (“Rather, the

paramount concern of the trial court is the best interest of the child.”).

Recall that it is the fact-finder’s purview to decide which of the enumerated

factors are the most salient to the facts of a particular case. M.J.M., supra,

at 339. Furthermore, consistent with our standard of review, we will not

interfere with the trial court’s consideration of the children’s best interest

absent an abuse of discretion. Id. Stated plainly, “The test is whether the

evidence of record supports the trial court’s conclusions.” Id. quoting

Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d 533, 539 (Pa.Super.

2006). Thus, insofar as Mother’s argument challenges the trial court’s

determinations regarding the weight and saliency of the various statutory

factors, no relief is due.

Finally, to the extent that Mother complains that certain aspects of the

trial court’s consideration of the father-daughter relationships were contrary

to the evidence, this argument also fails. During the evidentiary hearing,

- 12 - J-A14028-17

the trial court considered the expert opinions of two court-appointed

evaluators, Dr. Esteve and Mr. Cuttitta. In addition to acknowledging the

children’s extreme animosity toward Father, Dr. Esteve found a lack of

ambivalence that suggests long-term parental alienation. N.T., 8/31/16, at

17. He noted that, while both girls demonstrated dramatic behavior, their

animosity toward Father can be improved with intensive counseling so long

as the parties support the process. Id. at 21. Dr. Esteve endorsed Father

engaging in interactions with the girls more frequently and for longer

durations. Specifically, he recommended frequent counseling sessions with

each daughter separately, an improved level of communications among the

family, and less interference by Mother. Id. at 17.

While Dr. Esteve declined to proffer a specific opinion as to relocation

per se, he stated unequivocally that he would discourage the relocation to

the extent that it impinged upon his recommendations for increased

interaction. Id. at 20. He expounded, “So if the relocation still permits all

of those recommendations that I just described to occur . . . then maybe

there can be an argument for [it]. However, if [relocation] further makes it

difficult to do all of what I just described, then of course I would discourage

it.” Id. at 20.

Mr. Cuttitta’s testimony paralleled Dr. Esteve’s assessment, however,

Mr. Cuttitta’s references related to his interactions with T.B.L. and S.B.L.

- 13 - J-A14028-17

during the 2014 reunification therapy.4 Importantly, Mr. Cuttitta identified

in the children significant reluctance to associate with Father and a

resistance to any reunification efforts. Id. at 39. He noted substantial

hostility on the girls’ part and an unwillingness to allow themselves to accept

Father’s attempts to re-engage. Id. at 39-40.

Mr. Cuttitta opined that Father needs to maintain consistent

interactions with T.B.L. and S.B.L. over extended periods in order to repair

the damaged relationships. Id. at 41. He recommended weekly, or at least

bi-weekly, overnight visitation. Id. As noted, supra, Mr. Cuttitta would not

support any proposed relocation scheme that impeded Father’s ability to

interact with his daughters regularly. He summarized his opinion with the

following query, “[H]ow do you attach with your daughters if you’re

spending most of your time traveling back and forth? It’s ridiculous.” Id. at

43.

In light of the court-appointed experts’ shared perspective of the

parent-child relationships and the joint recommendation that Father

maintain more frequent contact with T.B.L. and S.B.L. in order to repair the

damaged relationships, we find no basis to conclude that the trial court erred

4 Although Mother does not assert that Mr. Cuttitta’s testimony is stale considering the fact that he discontinued his contact with the family during 2014 or 2015, we observe that his expert assessment is founded upon the girls’ static disdain for Father which has continued to plague Father’s reunification efforts since the family last utilized therapy.

- 14 - J-A14028-17

in highlighting the girls’ enmity in its consideration of the relocation factors

pursuant to § 5337(h).

Having found that the certified record sustains the trial court's decision

to deny Mother’s petition to relocate T.B.L. and S.B.L from Bethlehem,

Pennsylvania, to Smyrna, Delaware, we affirm it.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/17/2017

- 15 -