P.A.W. v. T.W., a/k/a T.S.

Superior Court of Pennsylvania

P.A.W. v. T.W., a/k/a T.S.

DecidedMay 6, 2015

Docket2105 MDA 2014

StatusUnpublished

This text of P.A.W. v. T.W., a/k/a T.S. (P.A.W. v. T.W., a/k/a T.S.) 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.

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P.A.W. v. T.W., a/k/a T.S., (Pa. Ct. App. 2015).

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Opinion

J-S26017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.A.W. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

T.W. A/K/A T.S.

Appellee No. 2105 MDA 2014

Appeal from the Order Entered on November 21, 2014 In the Court of Common Pleas of Franklin County Civil Division at No: 2001-595

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED MAY 06, 2015

P.A.W. (“Father”) appeals the November 21, 2014 order, in which the

trial court granted primary custody of T.A.W. (“Child”) (born in October

2000) to T.W. (“Mother”), and permitted Mother to relocate with Child to

Delaware. We affirm.

On February 26, 2001, when Child was approximately four months old,

Father filed a complaint in custody. Mother and Father were not married.

Following a conciliation, a temporary order evidently was entered, although

that order does not appear in the certified record. On June 7, 2002, the trial

court entered a new custody order that provided Mother with primary

physical custody and Father with substantial partial custody, which remained

in effect until 2013. J-S26017-15

On August 21, 2013, Father filed an emergency petition, in which he

alleged that Mother was planning to relocate with Child without providing

proper notice. Mother filed a response, in which she alleged that she had

sent Father a Notice of Proposed Relocation. On September 9, 2013, the

trial court dismissed Father’s petition and ordered Father to file a counter-

affidavit if he objected to Mother’s proposed relocation. Because Father did

not file a timely counter-affidavit, on October 30, 2013, the trial court

granted Mother’s request for relocation and revised the parties’ physical

custody schedule. Father filed a motion for permission to file a nunc pro

tunc counter-affidavit, which the trial court denied. However, Mother did not

relocate.

On January 9, 2014, Father filed a petition to modify custody based

upon the fact that Child did not relocate. On February 17, 2014, the parties

reached an agreement pursuant to which Father had custody six out of

fourteen nights during the school year and alternating weeks during the

summer.

On September 18, 2014, Mother served upon Father another Notice of

Proposed Relocation. Father timely filed a counter-affidavit. Mother filed a

petition to modify custody. The trial court held a hearing on the

relocation/custody modification on November 14, 2014.

At that hearing, Mother testified that she had been married to R.S.

(“Husband”) for eight years. Notes of Testimony (“N.T.”), 11/14/2014, at 4.

Husband has three children from prior relationships, two of whom live with

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Husband and Mother full-time. Mother has one other child from a prior

relationship who lives with Mother primarily. Mother and Husband have one

child. Id. at 10-11. Including Child, five children live primarily with Mother

and Husband.

Husband and the children, excluding Child, relocated to Millsboro,

Delaware in October 2014 after Mother and Husband sold their home in

Shippensburg, Pennsylvania. Mother testified that they were buying the

Millsboro house in which the family was living and that closing was

scheduled for December 9, 2014. Id. at 5-7. Mother and Child were

residing with Mother’s mother pending the outcome of the relocation

hearing. Id. at 5. Mother testified that they did not move when the prior

relocation request was granted because they could not sell their house in

Shippensburg and could not afford two houses. Id. at 35.

Husband testified that he ran his own business until it closed in 2013.

Id. at 47. From then until he started at his current job in Delaware, he

worked various jobs. The Delaware job paid $20.00 per hour and he worked

forty-eight hours per week. Id. at 48-49. Husband anticipated that he

would receive a raise as of January 1 to $27.00 per hour. Id. at 48, 50.

Husband also testified that he was now in a union and received benefits that

he did not have when he was self-employed. Id. at 51-52. Husband had a

job in Delaware when the prior relocation was granted, but gave it up and

moved back to Pennsylvania when the Shippensburg house did not sell. Id.

at 53.

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Mother testified that she has been Child’s primary custodian. Id. at

14. Mother participated in Child’s cheerleading and made arrangements for

Child to continue competitive cheerleading in Delaware. Id. at 16-20.

Mother testified that the move was precipitated by Husband’s job

opportunity in Delaware. Id. at 22. Mother had obtained two part-time jobs

in Delaware that would offer health insurance and a retirement plan that her

Pennsylvania job did not offer. Id. at 23-24. While Mother might work

more total hours than she worked in Shippensburg, she testified that she

would not be working nights and had flexibility for extracurricular activities

or if the children were ill. Id. at 25.

Father testified that he lives in Chambersburg with his girlfriend, C.W.,

and their two children, in addition to Child. Id. at 67. Father testified that

he and Child share a strong relationship and that Child gets along well with

his children and with C.W. Id. at 69-70. Father believed that removing

Child from her school would be harmful to her. He indicated that, if he were

awarded custody, he could petition to have her remain in the Shippensburg

school district. Id. at 76. However, Father acknowledged that Child might

have to change schools. Id. at 92. Father also believed that the relocation

would have a negative impact on Child’s relationship with him and her half-

siblings. Id. at 82-83.

Child testified that she has a good relationship with both parents and

Husband, although sometimes she does not get along with C.W. Id. at 119.

Child admitted to being anxious about moving, but acknowledged that,

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regardless of who received primary custody, she was going to have to move.

Id. at 130. Child testified that she would want to move to Delaware,

because she had been with the half- and step-siblings in Mother’s house for

a longer time, and that “[i]t would just be really hard not to like go with

them.” Id. at 131. Child acknowledged that she had an easier relationship

with Mother. Id. at 132. However, Child believed that she would develop a

better relationship with Father if she lived primarily with him. Id. at 131-32.

On November 21, 2014, on the record, the trial court made detailed

findings of fact and conclusions of law that tracked the custody and

relocation factors set forth in 23 Pa.C.S.A. § 5328(a) and § 5337(h),

respectively. On the same day, the trial court issued an order permitting

Mother to relocate with Child after December 9, 2014, provided that Mother

submit to the Court documents proving that Mother and Husband completed

the purchase of their home in Delaware. The order also provided Father

with partial custody on alternating weekends during the school year and the

majority of the summer break.

On December 10, 2014, Father timely filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On January 8, 2015, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

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