Reigle, K. v. Felty, D.

• Court: Superior Court of Pennsylvania
• Decided: February 23, 2022
• Docket: 1252 MDA 2021
• Status: Unpublished

Opinion

J-A01048-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KERRY JOSEPH REIGLE, JR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : DARLENE J. FELTY : : Appellee : No. 1252 MDA 2021

Appeal from the Order Entered September 13, 2021 In the Court of Common Pleas of Lebanon County Civil Division at No(s): 2015-20186

BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: FEBRUARY 23, 2022

Appellant, Kerry Joseph Reigle, Jr. (“Father”) appeals from the order

entered in the Lebanon County Court of Common Pleas, denying his request

for relocation regarding the parties’ minor child, R.R. (“Child”). We affirm.

The relevant facts and procedural history of this case are as follows.

Darlene J. Felty (“Mother”) and Father share legal and physical custody of

Child. Child stays with Father on Mondays and Tuesdays, with Mother on

Wednesdays and Thursdays, and alternates weekends between the two

homes. Child has been attending school in the Northern Lebanon school

district his entire life. Both Father and Mother lived within the Northern

Lebanon school district until 2020. In May 2020, Father’s wife moved to

Elizabethtown to enroll her children in the Elizabethtown school district.

Consequently, Father lived separately from his wife and stepchildren for a J-A01048-22

period of time.

In June 2020, Father filed a notice of relocation so that Child could reside

in the Elizabethtown school district. Father later modified his relocation

request to the Palmyra school district because it was located between the

Northern Lebanon and Elizabethtown area. The trial court denied the request

finding that Father had not provided proper notice of the proposed relocation

to Palmyra to allow Mother the opportunity to object or agree. In September

2020, Father filed a second notice of relocation to transfer Child to the Palmyra

school district. The trial court denied Father’s request finding that it was not

in Child’s best interest to remove Child from the school district he was familiar

with in the middle of the school year.

Father subsequently moved to Elizabethtown to live with his wife and

stepchildren. Child remained in the Northern Lebanon school district and

Father drove Child approximately 45 minutes to school on the days that Child

stayed with him. On May 3, 2021, Father filed the instant notice of relocation

requesting that Child be relocated to the Elizabethtown school district.

The trial court held a hearing on the matter on September 9, 2021. At

Father’s request, the court appointed Frederick Long, Esquire as guardian ad

litem. Mr. Long interviewed Child, Mother, and Father and submitted a report

for the court’s consideration. Mr. Long recommended that the court grant

Father’s petition to relocate Child to the Elizabethtown school district. Even

though Father did not request a change in the custody schedule, Mr. Long

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further recommended that Father be granted primary physical custody of Child

during the school week. Mr. Long testified that his conclusion was based on

concerns about Mother’s work schedule which required her to work on

evenings when Child was in her custody. Mr. Long also raised concerns over

Child’s living conditions at Mother’s house because Child was often displaced

from his room for extended periods of time when Mother’s brother came to

visit. Further, Mr. Long noted that the Elizabethtown school district was rated

stronger than the Northern Lebanon school district in reading proficiency and

math proficiency on USnews.com. Upon further questioning, Mr. Long clarified

that he did not believe that the Northern Lebanon school district was

substandard but merely that the Elizabethtown school district was rated higher

in certain areas.

Father testified that Child struggled in school while in the Northern

Lebanon school district, particularly with reading comprehension. Child’s older

brother dropped out of school and Father expressed concern that Child would

follow the same path if he continued to struggle in his studies. Father found

the level of additional educational support offered at Child’s school in Northern

Lebanon to be inadequate. Because of this, Father hired a private tutor who

worked with Child until the Covid-19 pandemic began. Father did not seek

out a new tutor after this point. Father stated that the middle school in

Elizabethtown would offer Child more one-on-one educational support. Father

testified that Child has a bedroom to himself at his house in Elizabethtown.

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Father further indicated that he has a flexible work schedule which largely

allows him to be home when Child is not at school. Father also noted several

community programs in Elizabethtown that he believed Child would enjoy.

Mother testified that she works as a manager at Friendly’s. Mother

admitted that she was previously required to work some evening shifts on the

nights that Child stayed with her because of staff shortages. However, Mother

recently moved to a new location where she works 10:00 a.m. to 5:00 p.m.

and expected to shift to the 7:00 a.m. to 3:00 p.m. shift once the location

begins to serve breakfast on October 4, 2021. Mother reported that Child has

always had his own bedroom at her residence. Mother stated that when her

brother came to visit from Ohio, Child slept on an air mattress in Mother’s

room. Mother’s brother subsequently decided to permanently move into

Mother’s residence and has set up a bedroom in the basement of the house.

Since then, Child has regularly slept in his bedroom.

Mother testified that Child received individualized educational support

from the elementary school he attended in Northern Lebanon. Mother

indicated that she reached out to the middle school Child recently began

attending and a counselor at the school will meet with Child to assess his

educational needs and plan accordingly. Mother often works with Child to help

him complete homework. In addition, Child’s receives additional educational

support at Mother’s home from his cousin who is a year ahead of him in school.

Mother reports that Child has an extremely close relationship with this cousin,

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and they work very well together. Mother expressed concern that if the

schools in Elizabethtown are more advanced in their curriculum, Child might

fall further behind in his studies if he were to transfer there. Mother noted

that Child has many friends at school and participates in extracurricular

activities such as wrestling and flag football. Mother testified that Child is very

happy at his current school and is distressed at the thought of leaving.

Child, who was 11 years old at the time of the hearing, testified that he

would prefer to remain at his current school because he is familiar with the

teachers and curriculum. Child testified that he has many friends at his

current school but did not know many kids in Father’s neighborhood. Child

also expressed an interest in spending more time at Mother’s house because

he has more friends in the neighborhood, including his cousin with whom he

is very close. Child further stated that he receives more help with his

homework from Mother and his cousin than Father.

After considering all the evidence, the trial court denied Father’s petition

for relocation on September 13, 2021. Father timely filed a notice of appeal

and contemporaneous statement of errors complained of on appeal on

September 27, 2021.

Father raises the following issues for our review:

Did the trial court err as a matter of law and/or abuse its discretion when it denied Father’s petition for relocation based upon findings of fact unsupported by the record?

Did the trial court fail to adequately consider the opinion of the court-appointed Guardian ad Litem?

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(Father’s Brief at 4).

In his two issues, Father argues that “the trial court improperly found

that Father’s relocation request was motivated in large part by being tired of

driving from Elizabethtown to Northern Lebanon.” (Id. at 12). Father

contends that Child struggled in his studies while attending school in the

Northern Lebanon school district and would fare better in the Elizabethtown

school district. Father maintains that he provided all transportation for

custody exchanges and offered to continue doing so if the relocation request

was granted to maintain the status quo and preserve Mother’s relationship

with Child. Father also claims that “the trial court failed to afford sufficient

weight to the opinion of the guardian ad litem….” (Id. at 13). Father

concludes that the court erred by disregarding the recommendations of the

guardian ad litem and drawing conclusions that were unsupported by the

record, and this Court must reverse the order denying his relocation request.

We disagree.

In reviewing a child custody order:

[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court 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, this Court must defer to the trial judge who presided over the proceedings and thus viewed 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

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trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation

omitted).

The Custody Act defines “relocation” as “[a] change in residence of the

child which significantly impairs the ability of a nonrelocating party to exercise

custodial rights.” 23 Pa.C.S.A. § 5322(a). Section 5337 governs a court’s

consideration of a request for relocation as follows:

§ 5337. Relocation

(a) Applicability.—This section applies to any proposed relocation.

(b) General rule.—No relocation shall occur unless:

(1) every individual who has custody rights to the child consents to the proposed relocation; or

(2) the court approves the proposed relocation.

* * *

(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

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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.

(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.A. § 5337(a)–(b), (h). Moreover,

[T]he party proposing relocation…bears the burden of proving relocation will serve the children’s best interests. See 23 Pa.C.S.A. § 5337(i). Each party, however, has the burden of establishing “the integrity of that party’s motives

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in either seeking the relocation or seeking to prevent the relocation.” 23 Pa.C.S.A. 5337(i)(2).

S.J.S., supra at 551. In these proceedings:

[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.

The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal

citations omitted).

Instantly, the court considered all relocation factors, including the

motives of both parties in seeking and opposing relocation. (See Trial Court

Opinion, filed October 6, 2021, at 3-7). Specifically, the court found that

relocation would negatively impact Child’s educational and emotional

development. The court was not convinced that Child would perform better

academically in Elizabethtown than in Northern Lebanon. Both the Northern

Lebanon and Elizabethtown schools have similar systems in place to provide

additional educational support to Child in the areas where he struggles.

Further, Child is familiar and comfortable with the teaching style and

curriculum at Northern Lebanon since he has attended school in this district

for his entire life. Additionally, the court found that Child has many friends at

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his current school and these friendships would be negatively impacted if

relocation was granted.

The court also gave weight to Child’s preference, stating:

During trial the [C]hild calmly, respectfully, and intelligently stated his preference in regards to relocation. Child was clear in his desire to remain at Northern Lebanon, citing his own comfort with a familiar location among friends, teachers, and other school personnel. The Child had nothing negative to say about Elizabethtown, simply that he is not comfortable with an unknown school and town. The [c]ourt feels that in this matter Child’s testimony is extremely telling in how the [c]ourt should rule in this instance.

(Trial Court Opinion at 5).

Additionally, the court noted that Father has filed three relocation

petitions since 2020 requesting to transfer Child to two separate school

districts. As such, the court expressed concern that Father’s motivation to

relocate Child is based on the distance between Child’s school and Father’s

home rather than Child’s educational needs. The record supports the court’s

findings. As the court properly considered the factors articulated in Section

5337(h), we see no reason to disturb the court’s decision that Father failed to

meet his burden to prove that relocation would best serve Child’s interests.

See S.J.S., supra.

Finally, Father’s assertion that the court did not give adequate weight

to the report of the guardian ad litem is without merit. The record

demonstrates the court carefully considered the report, where the court

stated: “Attorney Long, I read your report and I want to thank you because

you did a very thorough job.” (N.T. Relocation Hearing, 9/9/21, at 30). The

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court observed that two big factors which led to the guardian ad litem’s

recommendations were Mother’s work schedule and the availability of Child’s

bedroom at Mother’s house. Both of these concerns had been remedied by

Mother prior to the hearing. As such, the court ultimately decided to rule

differently than what was recommended in the report after taking into

consideration all the evidence presented. It is within the province of the trial

court to assign weight to the evidence presented and we decline Father’s

invitation to reweigh the evidence in his favor. See R.M.G., Jr., supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/23/2022

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