M.Y. v. H.Y.

Superior Court of Pennsylvania

M.Y. v. H.Y.

DecidedJanuary 28, 2021

Docket911 MDA 2020

StatusUnpublished

This text of M.Y. v. H.Y. (M.Y. v. H.Y.) 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

M.Y. v. H.Y., (Pa. Ct. App. 2021).

Pincite

Opinion

J-S51037-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.Y. : IN THE SUPERIOR COURT OF Appellant : PENNSYLVANIA : v. : : H.Y. : : No. 911 MDA 2020

Appeal from the Order Entered June 12, 2020 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2017-CV-8550-CU

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 28, 2021

M.Y. (Father) appeals from the order entered in the Dauphin County

Court of Common Pleas, granting him and H.Y. (Mother) shared legal custody

of their children, L.Y. (born in December 2007), R.Y. (born in April 2009), and

P.Y. (born in January 2012) (collectively, the Children), and Mother primary

physical custody, pursuant to her notice of proposed relocation to Wantagh,

Nassau County, New York and petition for modification. After review, we

affirm the trial court’s order.

The parties married in September 2009, and Father filed for divorce in

August 2017. On December 12, 2017, Father initiated the within matter and

filed a complaint for shared child custody, along with a petition for emergency

custody relief. On February 21, 2018, the parties settled on a 2-2-5-5 shared

physical custody schedule, with Mother having custody Mondays and

Tuesdays, Father having custody Wednesdays and Thursdays, and the parties

alternating weekends. See N.T., 6/8/20, at 9, 78; Order of Court – Parenting J-S51037-20

Plan, 2/21/18, at 2 (unpaginated). At the time of the underlying June 8, 2020,

custody hearing, the parties’ divorce was not finalized. N.T., 6/8/20, at 5, 78.

The trial court summarized the relevant procedural and factual history

as follows:

On February 26, 2020, [Mother] filed a Notice of Relocation along with a Petition for Modification of the February 21, 2018, Parenting Plan, as supplemented by orders dated April 18, 2019, May 10, 2019, and September 11, 2019. [Mother sought primary physical custody of the children, and sought to relocate with them to Wantagh, New York.]

* * *

Father and Mother separated in August 2017. Mother stayed in the former marital home, and Father [vacated the home in November 2017.1] Mother hoped to keep the family home through equitable distribution as part of the divorce, but due to Father’s failure to pay the mortgage and his support obligations in a timely manner the home was placed in foreclosure and was scheduled to be sold at a Sheriff’s sale in July 2020. Mother then sought to relocate to Wantagh, New York, where Father and Mother are both originally from,[2] feeling it would benefit the [C]hildren and Mother emotionally and financially. Mother proposes to purchase a home with her paramour, [T.C.], who is a New York City firefighter. Since separation, Father and Mother have shared physical custody of the [C]hildren pursuant to a 2-2- 5-5 schedule[.] The [C]hildren settled into the custody schedule, which satisfactorily met their needs. In March 2020, Father was

____________________________________________

1 See Father’s Complaint for Shared Child Custody, 12/12/17, at ¶ 6.

2 Father grew up on Long Island, New York near Wantagh. N.T., 6/8/20, at 24. Mother testified she moved to Long Island after high school and lived there for eight years. Id. at 24.

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arrested during his parenting time[3] prompting Mother to file an Emergency Petition for Special Relief which the [c]ourt denied.

Opinion in Support of Order Pursuant to Rule 1925(a), 8/17/20, at 1-2

(1925(a) Op.).4

The trial court conducted a hearing on June 8, 2020. Mother and Father,

represented by counsel, each testified on their own behalf. In addition, Mother

presented the testimony of her boyfriend, T.C., and her father, H.H. — the

Children’s maternal grandfather. Father presented the testimony of his

mother, P.Y. — the Children’s paternal grandmother.5 The court further spoke

with the oldest child, L.Y., in camera, on June 11, 2020.6

Thereafter, by order dated and entered June 12, 2020, the trial court

awarded the parties shared legal custody, and Mother primary physical

3Father was arrested on an outstanding bench warrant related to a business deal and/or contract in Virginia. N.T., 6/8/20, at 104-09; see also Defendant’s Exhibit 14.

4 We note the trial court issued two opinions. First, it filed a 14-page Memorandum Opinion on June 12, 2020, on the same day as the underlying order. We cite to this opinion, infra, as “Memo. Op.” The court also filed, on August 17, 2020, a 4-page Opinion in Support of Order Pursuant to Rule 1925(a), which incorporates the June 12th memorandum opinion.

5The proceeding was conducted via video conference due to the COVID-19 pandemic. N.T., 6/8/20, at 1.

6 We observe that no transcript of L.Y.’s interview was included as part of the certified record. Nonetheless, there does not appear to be any dispute that L.Y. indicated her desire to retain the status quo.

-3- J-S51037-20

custody commencing August 17, 2020, pursuant to her notice of proposed

relocation to Wantagh, New York and petition for modification. The court

granted Father partial physical custody during the school year: two weekends

each month,7 and winter and spring recess. During the summer, the court

further granted Father partial physical custody from seven days after the last

day of the school year until fourteen days prior to the start of the next school

year. The court additionally provided for, inter alia, a holiday schedule; a

custodial exchange location, if unable to be agreed upon; reasonable

telephone, video, and/or email contact; and individual counseling for the

Children, as needed. As stated above, the court issued a contemporaneous

Memorandum Opinion, which addressed both the statutory relocation and

custody factors.

On July 2, 2020, Father filed a timely, counseled notice of appeal, along

with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).

Father raises the following issue for our review:

Whether the Trial Court erred as a matter of law and abused its discretion by approving Mother’s relocation and failing to properly apply the necessary factors in determining if the proposed relocation is in the best interests of the subject minor children.

7 The court provided, “Father’s weekend custodial periods during the school year shall include all three-day or extended weekend breaks, which will then count toward Father’s monthly weekend custodial periods.” Custody Order – Parenting Plan, 6/12/20, at ¶13.

-4- J-S51037-20

Father’s Brief at 4.

We note the relevant standard of review:

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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

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