J-A23016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.C.-F. : IN THE SUPERIOR COURT OF : PENNSYLVANIA
Appellant :
: :
v. :
: :
V.M. : No. 270 WDA 2018
Appeal from the Order Entered January 23, 2018 In the Court of Common Pleas of Allegheny County Civil Division at No(s): Case No. FD05-007279-005
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 21, 2018
Appellant, M.C.-F. (“Mother”), and Appellee, V.M. (“Father”), are the
parents of a minor child (“Child”), who was born in June of 2005. In the
instant appeal, Mother challenges the January 23, 2018 order that, inter alia,
denied her petition to relocate with Child to Tennessee. After review, we
affirm.
The record reflects that the underlying matter is a high-conflict custody
case. The parties were married from July 7, 2004, through August 1, 2006.
Child was born in June of 2005. Following their divorce, the parties shared
legal custody of Child, with Mother having primary physical custody. Mother
subsequently remarried Q.F. (“Stepfather”). On December 27, 2017, Mother
filed a notice of proposed relocation. Mother requested to relocate with Child
to Antioch, Tennessee, with Stepfather and Mother’s two children born of her
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marriage to Stepfather. In her petition, Mother sought to relocate Child and
leave Pennsylvania on January 15, 2018. On January 12, 2018, Father filed
a petition for special relief objecting to Mother’s proposed relocation. Due to
the immediacy of Mother’s proposed move, the trial court ordered an
expedited relocation hearing. The relocation hearing was held on January 19,
2018, and January 23, 2018. At the conclusion of the hearing, the trial court
ordered as follows:
1. The parties having been advised that both relocation and custody are at issue, to expedite resolution of the dispute, the Court hereby deems Father’s objection to the Proposed Relocation to be a timely filed Petition for Modification of Custody, for which fees and the Generations program are hereby waived, so long as Father files such a Petition formally requesting primary physical custody of the minor child M.C., age 12 (the “Child[”]) with the Court within 10 days hereof.[1]
2. Mother’s request to relocate with the Child is hereby DENIED.
3. Should Mother elect to remain in Allegheny County with the Child, Mother and Father shall share physical custody of the Child according to a week-on/week-off schedule commencing Sunday, January 28, 2018 at 4:00 p.m.
4. Should Mother elect to relocate to Tennessee without the Child, Father shall be granted primary physical custody of the [C]hild. Mother shall be granted partial physical custody of the child every summer from one (1) week after the child finishes school until one (1) week before the child returns to school. Mother shall also exercise partial physical custody for the entire winter break in even years, and from the day after Christmas until the day before school resumes in odd years.
____________________________________________
1Father filed a formal petition for primary physical custody of Child on January 22, 2018.
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5. Transportation will be shared, with the party receiving custody being responsible for said transportation, except that Mother shall bear all transportation costs for the purposes of interstate custody exchanges.
6. If either parent is to take vacation with the Child in a location outside of that parent’s home County, they will notify the other parent as to the location of that vacation at the time the vacation schedule is finalized.
7. Parents shall continue to share legal custody of the Child. Parents shall consult each other on all major non-emergency issues relating to the Child.
8. Each parent shall share knowledge of any illness, accident or other circumstances affecting the health or welfare of the Child.
9. In the event of an emergency or serious injury to either the Child, or parent giving care, the other parent will be notified immediately if it will interrupt the custody schedule. Each parent’s custody schedule may be interrupted if it is medically ill-advised to physically remove the Child due to serious injury or illness of the Child.
10. Parents will make every effort to discuss extracurricular lessons/activities prior to enrollment of the Child, especially if those activities will mandate both parents’ participation during their custody period.
11. If the Child is participating in a school event, extracurricular activity or social event, each parent will keep the other parent informed to allow the other parent to attend and both parents will ensure that the Child is able to attend all reasonably scheduled activities.
12. Both parents shall treat each other with respect and shall endeavor to communicate directly rather than use the Child or a third party as an intermediary.
13. Each parent shall keep the other informed as to each of his or her address and telephone number, including during vacation periods when the parents are traveling with the Child.
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14. Neither party shall move with the Child without having first obtained a written consent of the other party or an Order of Court.
15. The Child may have reasonable, regular, daily telephone contact with the parent who is not exercising physical custody.
16. If both parents can agree to a change in this Order, the parents may change the times and dates of the custody schedule as set forth herein without formal modification of this Order. If both parents cannot agree, the Order shall be followed as written or either parent may request appropriate relief from the Court.
17. This Order is made a final order of this court. This constitutes a final order or final decree. If applicable, this order or decree shall be entered as a judgment by the Office of Court Records. Rule 236 Notice to be sent by the Office of Court Records.
Order, 1/23/18, at 1-2. Mother filed a motion for reconsideration that the trial
court denied. Order, 2/20/18. Mother filed a timely notice of appeal and
concise statement of errors complained of on appeal on February 22, 2018.
The trial court filed its opinion on June 5, 2018.
On appeal, Mother raises the following issues for this Court’s
consideration:
I. Did the trial court err as a matter of law and commit an abuse of discretion under the Due Process Clause and Rule 1915.17(b) when it allowed [Father] to proceed with his claim objecting to [Mother’s] Relocation despite the absence of a Counter-Affidavit timely filed on his behalf?
II. Did the trial court err as a matter of law and commit an abuse of discretion under the Due Process Clause and Rule 1915.15(b- c) when it proceeded with [Father’s] claim for Primary Physical Custody of [Child] without Father filing a Complaint for Primary Physical Custody nor a Petition for Modification of a Custody Order prior to the Hearing on [Mother’s] Relocation?
III. Did the trial court err as a matter of law and commit an abuse of discretion in its application of the 23 Pa. C.S.A. §5337 relocation
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factors when it awarded [Father] Primary Physical Custody despite evidence proving [Mother’s] Relocation would greatly enhance the quality of life for [Child] and Mother and would continue to allow [Father] and [Child] the opportunity for a meaningful relationship?
IV. Did the trial court err as a matter of law and commit an abuse of discretion in its application of the 23 Pa. C.S.A. §5328 custody factors when it awarded [Father] Primary Physical Custody despite evidence rebutting [Father’s] ability to co-parent with [Mother] and encourage and permit frequent and continuing contact between [Mother] and [Child]?
Mother’s Brief at 2-3.
Our scope and standard of review are 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 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.
A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010) (internal citations
omitted).
Mother’s first two arguments are based on an overly narrow reading of
Pa.R.C.P. 1915.15, Pa.R.C.P. 1915.17, and 23 Pa.C.S. § 5337, without regard
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to Pa.R.C.P. 126.2 Moreover, Mother’s first two issues seemingly ignore the
fact that Mother filed her notice of proposed relocation less than three weeks
prior to her planned move to Tennessee. Additionally, we discern no abuse of
discretion in the trial court denying Mother’s petition to relocate and granting
Father’s petition for modification of custody pursuant to the terms stated in
the January 23, 2018 order. After a careful review of the parties’ arguments,
the certified record, and applicable legal authority, we are satisfied that the
trial court’s opinion aptly discusses and properly disposes of Mother’s issues
raised on appeal. Accordingly, we affirm the January 23, 2018 order on the
basis of the trial court’s opinion, which was filed on June 5, 2018. The parties
are directed to attach copies of that opinion in the event of future proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/21/2018
____________________________________________
2 Pa.R.C.P. 126 provides as follows:
The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
M.C.-F FAMILY DIVISION
Appellant, 270 WDA 2018 FD -05-007279-005
v.
V.M., JUDGE HUGH F. McGOUGH
Appellee.
OPINION
. F. McGough; J. June 1, 2018
On January 23, 2(118, after a two-day hearing on Appellant's Proposed Relocation with
the minor child 'from Pennsylyania to Tennessee, this Court denied Appellant's Proposed
Relocation with the minor chid, finding that Appellant had failed to persuade the Court that the
Proposed Relocation was in the best interests of the minor child. Appellant has appealed that
denial. Each of the matters set forth in Appellant's Concise Statement of Matters Complained of
on Appeal is addressed below in the order in which it was presented therein.
Discussion
Counter; Affidavit: Appellant first challenges the absence of a formal Counter -Affidavit
:from Appellee. ;At the time of the filing of Appellant's Notice of Proposed Relocation, both
parties were unrepresented by counsel. Within 30 days of receipt of Appellant's Notice, Appellee
promptly came to Motions Court with a Petition for Special Relief, which detailed his objections
to the proposedlrelocation. Thus, Appellant was on actual, timely notice of Appellee's objection
to the Proposed Relocation, and given the imminence of the proposed move at that time, the
Court felt that strict adherence to procedural formalisms would have unnecessarily delayed the
Court's review of t e matter. Accordingly, the Court scheduled an expedited Relocation Hearing
on the matter without requiring the filing of an additional Affidavit from Appellee, and does not
believe that it was reversible mar to have done so under these circumstances, given the actual
notice to Appellant and the d4cretion accorded the Court pursuant to PU.R.C.P. 126.
2. Complaint for Custody: Appellant next claims that the Court erred by addressing
Appellee's complaint for Priniary Physical Custody during the Relocation Hearing. At the outset
of the Hearing, the Court recognized the need for Appellee to have filed a complaint for custody
(so that Appellee's custody could be modified in case Appellant's Proposed Relocation was not
approved), and the Court's Order dated January 23, 2018 accordingly granted Appellee leave to
le such a complaint; this turis out to haxie been unnecessary, as Appellee had, in fact, already
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filed a complaint for custody, 'along with the required Criminal Record/Abuse History
January 62, 2018. Both parties had been apprised by the Court prior to the
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Verification form, on1
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Hearing that both custod;andlrelocation were at issue, and both parties had been given copies of ,
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the Relocation and Factors. Indeed, at the conclusion of the first day of the Hearing,
Appellant expressed distress that she had not yet been given a chance to address the custody
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sured that she would be given ample opportunity to do so when the Hearing
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factors, and was Irea
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continued.' Both parties were ware of - and were given ample opportunity to address - the relocation and custody factors pertinent to the Proposed Relocation, and it was not reversible
error to address Appellee's complaint for custody that was occasioned thereby.
' See Transcript of(Day 1 at 1.63: IAPPELLANT]: Your Honor, your court order said, if I can read from 't' an expedited relocation hearing on mother's relocation proposal filed 12/27 of father's objection hereto will take place for Three hours. Parties apprised of relocation and custody factors at issue. So I was under he impression that the relocation and custody factors at issue were what we were analyzing today."
Relocation Factors: Particularly significant to the Court was the fact that before the first
day of the Relocation Hearing, Appellant had already packed up her home in Allegheny Country
and prepared to put it on the market, and all members of Appellant's household, with the
exception of herself and the minor child, had already relocated to Tennessee, where a one-year
lease had been signed on a honse.2 Appellant's new spouse was not present at the Hearing to
i.stify to the details of his job ;search (including, most importantly, whether or not he had ever
explored any job: op ions that Would have enabled him to remain in Allegheny County).
Appellant provided no compaiative educational information (other than the name of the new
school the minor; ch'Id would attend), no data comparing quality of life in the locations at issue,
no evidence about how the mildest increase in Appellant's spouse's salary3 would improve the
child's quality of life, and no practical suggestions on how to preserve the quality of the
relationship betWeen the minorI child and Appellee. Unrebutted testimony indicated that the
Minor child might have favored the relocation, if he would be getting his own bedroom... which
appeared to be rather unlikely,given that the family was moving into a house in Tennessee with
he same numberiof bedrooms and occupants as their house in Allegheny County.4 Accordingly,
the Court's application of the Relocation Factors reflected the Court's assessment that Appellant
had failed to satisfy her burden, of demonstrating that the Proposed Relocation was in the best
nterests of the child
2 See Transcript of pay 1 at 68. 3 Appellant acknovvledged that heir husband expected to receive a $500/month salary increase as a result of his relocation. See Transcript olf Day 2 at 66. See Appellant's explanations in Transcript of Day 1 at 58 and 60-61: "Initially [minor child] indicated that he was going with the flow and was okay with moving as long as he had his own room. After discussing the matter with the non -relocating party, he indicated that he didn't want to move, but failed to give a reason why.1... Currently, [minor child] shares a room with his younger brother.... We have not .1
figured out logistics on how it will work, but we are trying to insure that the child has his own room, as he's requesting."
4. Co -Parenting and Continuing Contact: Appellant clearly viewed the Relocation Hearing
as a mere formality, given that the move to Tennessee was practically a fait accompli prior to the ;
Hearing date. Appellant's assessment of what would or would not be in the child's best interests
ci d not seem to inclitde Appellee in any way; indeed, Appellant appeared to believe that the only
two options available to the Court *ere permitting the Proposed Relocation or rendering the
hild and his fanjily homeless? Appellant admitted that she had formulated no "Plan B" in the
event that permission to relocate with the child was denied.6 It seems particularly odd, therefore,
for Appellant to cIha lenge Appellee's co -parenting and willingness to encourage continuing
contact, when it Was Appellant's proposed move to Tennessee that precipitated the instant
proceedings. The mere existence of communications and parenting challenges between the
ee Transcript ofDay 1 at 69-70: [APPELLANT]: You're welcome. A relocation will not only enhance the general quality of life for the party seeking relocation, I ut also the child. THE COURT:;W? [APPELLANT,]: I m sorry? THE COURT:'How will 'it enhance? [APPELLANT]: Well, otherwise, we would be homeless because the property is in Nashville that we would be moving o. And wit -lout either of us working, we wouldn't be able to meet our fiscal responsibilities her in Pittsburgh. THE COURT: .1 understand that for you. But the point is you have to show that it's going to enhance the child's quality of life. [APPELLANT]: Right. It also enhances the child's quality of life. The child is part of the family unit. So, whenever we are impacte I, the child is also impacted by the circumstances impacting the family as a whole. See Transcript of Day 1 at 56-57;:
THE COURT: And what's yo ir plan if relocation is denied? Will you move with the other two children to join your husband in Nashville or not? [APPELLANT]: Well, we don't have a way to live here because -- THE COURT: So he answer is, if relocation is denied, if I don't allow the child to go to Nashville, you will move without the child? [APPELLANT]: I don't know] I hadn't considered the possibility of otherwise since the relocation is in the best interest of the child. THE COURT: Tha 's the ultimate question that we're deciding here today. I understand your position. [APPELLANT]: Sure. THE COURT: I'm he one whb has to decide that.
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litigants should not as Appel ant appears to suggest,completely thwart an otherwise appropriate.
award of custody when, as he e, thefe has been a material change in the status quo.
In conclUsion, the Court discerns nothing in the record indicating that it failed to properly
consider and weigh each ofthe applicable factors, and accordingly relies upon the Transcripts'to
document the reasoning behind the Court's findings, conclusions, and Order set forth in pages'
89-128 of the Transcript Of Dly 2.
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For all of the foregoing reasons, the Order dated. January 23, 2018 should be Affirmed.
BY THE COURT:
, J.
Honorable Hugh Fitzpatrick McGough Court of Common Pleas
Honorable Hugh FISPatrIck McGough Court of Common Pleas Roam 5069, Family Law Center 440 Ross Street Pittsbur9h, PA 15219