M.T.L. v. L.P.Z.

Opinion

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

M.T.L., : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee :

:

v. :

:

L.P.Z., :

:

Appellant : No. 2919 EDA 2015

Appeal from the Order Entered October 13, 2015 in the Court of Common Pleas of Chester County Domestic Relations at No(s): No. 08-13842.

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 07, 2016

L.P.Z. (Mother) appeals from the order entered October 13, 2015,

which denied her request to modify the existing custody schedule and

relocate with her minor children, V.L., born in March 1999, and R.L., born in

June 2001 (collectively, Children). We affirm.

The pertinent factual and procedural history of this case has been

summarized by the trial court as follows.

[M.T.L. (Father) and Mother] are parents of [Children].

The parties first litigated custody of their children in 2008, eventually resulting in an Order by the Honorable David Bortner entered May 14, 2010 granting the parties shared legal custody of [C]hildren, with Mother having primary physical custody and Father having partial custody. Further litigation ensued on a frequent basis, mostly being resolved by (eventual) stipulation of the parties. In September 2011, Father filed a Petition to Modify to which Mother filed a counterclaim for modification, and in November of 2012, Mother re-petitioned for modification, seeking to relocate to Toronto, Canada with [Children] for the 2013-2014 school year, which Father opposed. Those matters

* Retired Senior Judge assigned to the Superior Court.

were resolved by the Honorable Ann Marie Wheatcraft’s Order of May 2, 2013 (entered by agreement). Per that Order, Mother did not relocate to Toronto; Father has partial physical custody of [R.L.] during the academic year 5 nights out of 14, plus a two[-]hour dinner visit every other week, and alternating Sundays; and Father has physical custody of [V.L.] for the two hour dinner visit every other week. As of the May, 2013 Order, Mother and [C]hildren summer in the Toronto, Ontario area. During those summer breaks, Father has partial custody periods with R.L. (and V.L., if she is willing) every other weekend in Ontario, as well as three weeks of days of vacation [sic]. Father sees [V.L.] briefly on those weekends, but she does not accompany [R.L.] on vacations with [Father].

On June 30, 2015, Mother filed a [p]etition for [r]elocation, requesting to move to Canada full time with [Children]. After three days of hearings, [the trial court] denied Mother’s petition.

Trial Court Opinion (TCO), 10/20/2015, at 1-2 (footnote omitted).

Mother filed a notice of appeal.1 Both Mother and the trial court have

complied with the directives of Pa.R.A.P. 1925.

On appeal, Mother claims that the trial court erred in: (1) denying

Mother’s request for relocation based upon the factors set forth in 23 Pa.C.S.

§§ 5337(h) and 5328(a); (2) ordering the parties to attend reunification

therapy “where its decision was based on evidence obtained outside the

1 The trial court denied Mother’s requests in the parties’ presence on September 3, 2015 at the conclusion of trial. However, an order was not issued until October 9, 2015. Mother initially filed a notice of appeal and concise statement of errors complained of on appeal (Concise Statement) on or about October 1, 2015, averring she did so because she did not want to miss the 30-day deadline for filing an appeal. (See Mother’s Brief at 7). Mother eventually amended her notice of appeal to reflect the official order denying relocation, entered by the trial court on October 9, 2015.

3

record;” and (3) failing to consider the custody evaluator’s opinion regarding

Children’s residing in separate households. Mother’s Brief at 4.

Once a custody order is in place, a court may modify it on petition “to

serve the best interest of the child.” 23 Pa.C.S. § 5338(a). In performing

the best-interests analysis, a trial court is required to consider the factors

set forth at 23 Pa.C.S. § 5328(a). See E.D. v. M.P., 33 A.3d 73, 80 (Pa.

Super. 2011) (“[W]hen a party files a petition for modification of a custody

order, the trial court must perform a ‘best interests of the child’ analysis

considering all of the section 5328(a) factors.”). When a party seeks to

relocate, he or she bears the burden of proving that relocation will serve the

best interests of the child, as determined by consideration of the ten factors

listed at 23 Pa.C.S. § 5337(h). In this case, with both relocation and

modification at issue, consideration of both sets of factors was required.

See, e.g., A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (“The trial

court must consider all ten relocation factors and all sixteen custody factors

when making a decision on relocation that also involves a custody

decision.”).

Following our review of the certified record, the briefs for the parties,

and the relevant law, we conclude that the on-the-record discussion

following the conclusion of testimony and the opinion of the Honorable

4

Katherine B.L. Platt correctly and concisely addressed each statutory factor.2

Accordingly, we adopt the trial court’s conclusions as set forth on the record 3

and the court’s October 20, 2015 opinion as our own, and affirm the trial

court’s disposition of Mother’s issue that the trial court erred in denying

relocation pursuant to 23 Pa.C.S.A. §§5337(h) and 5328(a). The parties

shall attach redacted copies of the September 3, 2015 transcribed

conclusions of the trial court and the October 20, 2015 opinion to this

memorandum in the event of further proceedings.

Next, Mother argues that the trial court erred in ordering the parties

and Children to attend intensive reunification therapy, when the court’s

decision was premised upon information outside the record. Mother’s Brief

at 29.4 Specifically, Mother avers that the program which the trial court

2 In doing so, we find Mother’s specific argument that the “trial court failed to address 5328(a)(6), ‘the children’s sibling relationships,’” unpersuasive and not supported by the record. This Court finds the trial court premised part of its decision, especially when dismissing Mother’s proposal to split Children, on the fact that there was “no emotional benefit” for separating Children, found that maintaining the “status quo” benefited “their emotional and educational opportunities” and that “having their family close at hand trumps.” N.T., 9/3/2015, at 140-41. (emphasis added). Therefore, the trial court’s statements made it clear that it considered the relationship of the siblings when deciding if Children should be separated from one another. See M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013)(“[T]here is no required amount of detail for the trial court’s explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations.”). 3 See N.T., 9/3/2015, at 116-142.

4 Mother contends that following the trial court’s on the record denial of Mother’s request to relocate, Mother waited for the trial court to issue an

5

chose for reunification therapy was never “suggested, discussed, or

considered” by any party and the trial court “relied on evidence outside the

record to make a unilateral decision as to who[m] the parties and [Children]

should work with towards the trial court’s ultimate goal of family

reunification.” Id. at 29-30.

The trial court correctly noted that it may “as part of a custody order,

require parties to attend counseling sessions. 23 Pa.C.S. § 5333(a).” Trial

Court’s Supplemental Opinion, 12/1/2015, at 74. In doing so, the trial court

found that such therapy was appropriate for the entire family due to the

effect “Mother’s perception that she is the victim of abuse by Father” has on

V.L. Id.

In support of her argument, Mother cites several decisions by this

Court in which we have repeatedly stated that a trial court cannot consider

official order within the 15 days as prescribed by law. Mother’s Brief 29. When no order was filed within that time, Mother prematurely filed her notice of appeal and Concise Statement. Mother avers that it was not until she received the trial court’s October 9, 2015 order that she became aware of the intensive reunification program the trial court had chosen for the parties and Children to attend. Id. Mother attempted to amend her Concise Statement, which this Court denied. She then proceeded to file a second appeal in hopes of consolidating, which was dismissed by this Court. Mother’s Reply Brief at 2. While this Court acknowledges that an appellant’s failure to include an issue within its Concise Statement constitutes waiver, because of the peculiar procedural circumstances, Mother’s attempt to remedy the situation, and the fact the trial court issued a supplemental opinion addressing this issue, we will discuss this issues on its merits.

6

evidence outside the record in making its determination in a particular case.5

Mother’s Brief at 30. While Mother has cited accurate case law, binding on

this Court, Mother fails to recognize that such law does not apply to the

circumstances within this case.6

Here, the trial court stated on the record that it was in favor of

reunification therapy, that it believed the whole family should participate,

and that the court needed “to do [its] due diligence” before deciding on a

reunification program. N.T., 9/3/2015, at 144. The trial court did not rely

on evidence outside the record when determining if reunification therapy

was appropriate in this case, as it had already stated in the parties’

5 See Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007) (finding the trial court incorrectly performed its own internet job search to determine if Father had presented accurate information regarding his inability to “find job openings in the region.”). See also M.P. v. M.P., 54 A.3d 950 (Pa. Super 2012) (holding the trial court erred in denying Mother’s contested petition to travel to Ecuador based, in part, on the court’s independent research on Ecuador’s history of noncompliance with the Hague Convention.). 6 We find Father aptly and accurately analyzed Mother’s issue and her supporting case law when stating the following:

Here, the trial court sought the appropriate remedy to address the evidence before it. It did not independently research for evidence to support its denial of relocation. For example, the trial court did not independently review psychological journals to determine whether intensive therapy is helpful in reunification cases. The custody evaluator was the appropriate expert who provided evidence on that issue. Rather, having decided that reunification therapy was warranted based upon the evidence before it, the trial court appropriately identified a program that could provide such therapy.

Father’s Brief at 61.

7

presence, on the record, that it was in favor of such a program. The only

independent research conducted was on particular programs, which the

court already stated, without objection, it would be performing. 7 Because

Mother failed to object when the trial court stated, in her presence, that the

court would be conducting independent research, we find the issue waived.

Lastly, Mother avers the trial court erred when failing to consider the

custody evaluator’s opinion that Children would not adversely suffer if they

were residing in separate households. Mother’s Brief at 34. Mother

contends the trial court’s opinion and reasoning for denying Mother’s

proposal to move to Canada with “V.L., while Father assumes primary

custody of R.L. during the school year” was based upon misstatements of

evidence within the record. Id. Specifically, Mother notes testimony of the

child custody evaluator, Jane Iannuzzelli (Ms. Iannuzzelli), who testified that

Children had a strong relationship and that there would not be any

problems, from a psychological perspective, in separating Children. N.T.,

9/2/2015, at 134. Combined with Children’s testimony that they could live

apart, Mother avers “clearly the custody evaluator had no issue with

[Children] living in separate households given that she testified as such and

7 See N.T., 9/3/2015, at 144-145 (Discussing two particular programs the trial court stated that it had “not done any independent research into those,” the court needed “to do [its] due diligence” and it had not “vetted” a proposed program yet; clearly Mother was aware that the trial court was researching programs and voiced no concern with the court doing so.). Even though the trial court inevitable chose a program that was not discussed at

8

recommended that each child remain in the primary custody of a different

parent.” Mother’s Brief at 35.

In response, the trial court stated it had

fully considered the testimony and recommendations of [Ms. Iannuzzelli], who performed an updated custody evaluation (having performed an earlier one in connection with the 2013 litigation). [The trial court] did in fact follow many of her recommendations. Contrary to the suggestion in this assignment of error, neither Ms. Iannuzzelli’s testimony nor her report conclude[s] that there would be no adverse effect to [Children] living in two separate households in the event of relocation with [V.L.] only. By way of background, Mother proposed to Ms. Iannuzzelli (and to the [trial] court) that if she were not permitted to move to Canada with [Children], that she be permitted to move with V.L., leaving R.L. in Father’s primary custody in Pennsylvania (with certain performance conditions). Ms. Iannuzzelli opined unequivocally that relocation to Canada was not in [Children’s] best interests and stated that having parents living close together is “better prognostically for [Children] in terms of how they fare after a divorce.” She also stated in her testimony that, regarding V.L., “I would be concerned that she was isolated from her brother and her [Father] by virtue of the move…”. In her evaluation report [] Ms. Iannuzzelli indicated that she considered Mother’s proposal to go to Canada with V.L. and leave R.L. with Father during the school year to be Mother’s “actual proposal.” As a result she reviewed the impact of the proposal on [Children] and rejected it as not being in their best interests. She did, however, recommend that both parents remain in the Philadelphia region and that Father have primary custody of R.L. Mother certainly never referenced the latter recommendation nor did she argue for it at trial.

As to Ms. Iannuzzelli somehow endorsing the split long distance custody proposal, there is no support for that anywhere in the record. In her testimony, Ms. Iannuzzelli stated “And as far as R.L. is concerned, [M]other’s proposal to me – now that I understand that – I’m not sure that’s not where she is at this

trial, the record is clear that court was conducting independent research on reunifications programs.

9

point, I hope not, but that R.L. be – it was kind of an all or nothing proposal with [F]ather during the school year and all vacation time with [M]other is a very much an all or nothing proposal. I am hoping that has changed since then.” It is clear that Ms. Iannuzzelli did not favor the long distance [split], and my ruling is consistent with that opinion.

TCO, 10/20/2015, at 9-11 (citations omitted).

We discern no abuse of discretion. In doing so, this Court finds the

trial court adequately considered all evidence, including Ms. Iannuzzelli’s

report. Specifically, we note that Mother’s alternative request to separate

Children and relocate with V.L. was in direct contradiction to Ms.

Iannuzzelli’s unequivocal assertion that she did not “believe that the

relocation is in [Children’s] best interest.” N.T., 9/2/2015, at 134.

Based on the above, we conclude that the record supports the trial

court’s determination to deny Mother’s petition for relocation.8 Accordingly,

we affirm the order of the trial court.

Order affirmed.

10

Judgment Entered.

Joseph D. Seletyn, Esq.

ProthonotaryDate: 6/7/2016

8 Notably, Mother stated that she would remain in Pennsylvania if relocation was denied. See N.T., 9/3/2015, at 140 (“Given that [Mother] has said that if [the trial court did not] grant relocation, she will stay here…”).

Circulated 05/16/2016 03:42 PM