J-A26017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.R.R. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
E.K.B.
Appellant No. 756 MDA 2015
Appeal from the Order Entered on April 1, 2015 In the Court of Common Pleas of Centre County Civil Division at No.: 2012-0629
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED OCTOBER 26, 2015
E.K.B. (“Mother”) appeals the April 1, 2015 order that awarded
primary physical custody of E.R. (“Child”) to T.R.R. (“Father”). We affirm.
Mother and Father married on May 6, 2009 in Nebraska. The parties
moved to Pennsylvania because Mother believed she had a job opportunity
at Penn State. Child was born in August 2010. On February 15, 2012,
Father filed a complaint in divorce. Mother had moved back to Nebraska
with Child. Also on February 15, 2012, Father filed an emergency custody
motion. The trial court ordered Mother to return to Pennsylvania with Child.
On May 21, 2012, the trial court cancelled the upcoming custody conference
because the parties had reached a temporary agreement and were residing
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A26017-15
together. However, the divorce still was proceeding as evidenced by
Mother’s request for alimony pendente lite.
On October 15, 2012, the court entered an interim order
memorializing the parties’ agreement to permit Mother and Child to relocate
temporarily to Nebraska. Thereafter, on November 28, 2012, the parties
entered into a marital settlement agreement and a parenting plan. They
agreed to share legal custody and that Mother would have primary physical
custody. Father was awarded partial physical custody, but with an irregular
schedule. Father waived any objection to Mother and Child relocating to
Nebraska. On December 20, 2012, the parties divorced.
On May 29, 2013, Father petitioned to modify the custody schedule to
increase his periods of custody. The parties reached an agreement in which
Father appeared to have more time with Child, but still followed an irregular
schedule.1
On August 6, 2014, Mother filed a notice of relocation, indicating that
she intended to relocate with Child from Nebraska to Arkadelphia, Arkansas.
On August 8, 2014, Father filed a petition to modify custody, in which he
1 For example, Father had custody October 10 through October 14, 2013, November 23 through December 6, 2013, January 4 through January 18, 2014, and March 1 through March 15, 2014. Father then had roughly two non-consecutive months of custody in summer 2014 and then had custody for ten days each in October and November of 2014.
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requested primary physical custody of Child. Father also filed a counter-
affidavit in opposition to Mother’s proposed relocation.
On August 21, 2014, Father filed an emergency motion for custody,
alleging that Mother already had relocated to Arkansas with Child without
the court’s permission. On that same day, the trial court awarded physical
custody of Child to Father. On November 4, 2014, the parties reached an
interim custody order, pending their hearing on relocation and custody, in
which they agreed to share physical custody on a rotating five-week basis.
The trial court held hearings on December 22, 2014 and February 27,
2015. On the first day of the hearings, Mother testified as follows. Mother
had a position as an assistant professor of psychology at Henderson State
University in Arkansas. Notes of Testimony (“N.T.”), 12/22/2014, at 5.
Mother was Child’s primary caregiver since Child’s birth, providing day-to-
day care while Father worked. Id. at 6. Mother alleged that the parties
separated because Father was emotionally unstable and because he became
emotionally abusive, controlling, and threatening. Id. at 7-13. At one
point, Father informed Mother that he was seeking treatment for borderline
personality disorder. Id. at 14-15.
Mother went to Nebraska in September 2011 to visit family and stayed
there until January 2012 because of Father’s mental health issues. Id. at
17-19. Mother returned to Pennsylvania in January 2012 because Child was
scheduled for surgery. Id. at 19. Mother left with Child for Nebraska again
in February 2012 because Father’s behaviors were escalating. Id. at 20.
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Mother left without telling Father because she was scared for her safety. Id.
at 21. When Mother learned of the February 2012 order giving Father
custody, she returned to Pennsylvania. However, Father only had custody of
Child for one day before Father returned Child to Mother. Id. at 22. Mother
moved back into Father’s residence because Mother did not have a job and
because Father controlled all the finances. Id. at 23-24.
In October 2012, Mother and Child returned to Nebraska to live with
Mother’s mother after the parties reached a custody agreement. Id. at 24.
Mother had primary custody and Father had extended periods of partial
custody. The parties would drive to make custody exchanges, meeting
about halfway. Id. at 25. Mother also indicated that Father had been
inflexible in making adjustments to custody exchange times and locations.
Id. at 45-46. Mother had difficulty obtaining work in her field in Nebraska,
only finding a temporary postdoctoral research position. Id. at 26. Mother
informed Father that she was seeking work nation-wide in academia. Id. at
27-28. When Mother was offered and accepted the Arkansas position, she
contacted her former attorney and was told that she could proceed with the
move. Id. at 36.
When Mother informed Father of the move, he objected and said that
he would not let Child move any further away than Nebraska. Id. at 37.
Mother explained that the distance was equivalent; 1,127 miles from
Nebraska and 1,113 miles from Arkansas. Id. at 39-40. Mother believed
that the move to Arkansas would not affect Father’s scheduled custody. Id.
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at 116. However, Mother admitted that she did not provide ninety days
notice. Id. at 81. But based upon her attorney’s advice, Mother did not
believe she was required to provide such notice. Id. at 135.
Mother was concerned about Father’s mental stability and its effect
upon his ability to care for Child. Id. at 50-51. Mother admitted to taking
anxiety medication and believed that Father needed medication as well. Id.
at 51.
Mother rents a three-bedroom house in Arkadelphia. Id. at 62. Child
has attended pre-school at the university when Mother had custody. Id. at
63-64. Mother also hired a nanny to care for Child when the pre-school was
not in session. Id. at 67. Mother regularly informs Father about what is
happening in Child’s life when Child is with Mother. Id. at 74.
M.G., Mother’s mother, confirmed that Father appeared emotionally
unstable in the time leading up to the parties’ separation, stating that he
would sob uncontrollably and corner family members to talk about his
marital problems. N.T., 2/27/2015, at 6-7. M.G. testified that, in the two
years that Mother and Child lived with her, M.G. observed Mother to be a
caring and nurturing parent and believed that there was a strong bond
between Mother and Child. Id. at 10. M.G. testified that Mother was scared
of Father when she returned to Nebraska. Id. at 24.
Dr. Aneeq Ahmad, Mother’s supervisor, testified regarding Mother’s
work hours and flexibility in scheduling. Id. at 37-39. Dr. Ahmad also
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testified that the university was very pleased with Mother’s job performance.
Id. at 40-41.
Kelli Sanford, Child’s nanny, also testified. At the time of the second
hearing, Ms. Sanford typically watched Child from 8 am until noon on
Mondays, Wednesdays, and Fridays, and from 3 to 7 pm on Thursdays and
Fridays. Id. at 54. Child’s preschool ran from 12:15 to 3:15 pm. Id. at 55.
Ms. Sanford would watch Child at other times as needed. Id. at 54. Holly
Schultz, the supervisor of Child’s pre-school testified that Child is well-
behaved and has made friends in her class. Id. at 70.
Father testified as follows. Father started taking psychiatric medicine
around the age of twenty, after he was diagnosed with cancer. Id. at 137.
He went on and off medication after that. Id. at 138. Father started to
attend counseling regularly when he lived in Nebraska and also started
taking medication for ADHD. Id. at 139. In May 2011, Father believed that
Mother was going to leave him. After conversations in which Mother
commented on his anxiety, he asked his doctor for a higher dosage of his
anti-anxiety medication. Id. at 140. Father then experienced mood swings,
anger, and other symptoms. Id. at 141. Father denied that he ever
physically abused Mother; he admitted that he said “mean things” to Mother
while he was having difficulties with his medication. Id. at 202, 205. At
some point, Father stopped his medication and was back to normal behavior
a couple of weeks later. Id. at 150.
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Around the time that Father had problems with his medication, Mother
told Father that their mutual psychiatrist discussed with her the idea that
Father had a brain tumor. Id. at 141-42. However, Father found out that
he did not have a tumor and he believed that Mother made up the whole
story. Id. at 142. Mother believed that Father had borderline personality
disorder, but he did not agree with her. Id. at 148-49. At the time of the
hearings, Father was seeing a counselor regularly. Id. at 144.
Mother and Child went to Nebraska in September 2011 with Father’s
consent. Id. at 158-59. Mother and Child lived with Father through the
divorce process, March through November of 2012. Then Mother and Child
moved back to Nebraska and Father estimated that, for 2013, Child spent
thirty percent of the time with him and seventy percent with Mother. For
2014, Father believed that Child spent roughly equal time with each parent.
Id. at 165.
Mother told Father about the Arkansas job in late July 2014. Id. at
166. Father looked for employment near Mother’s new home, but was
unable to find anything. Id. at 183. Father testified that the driving time to
the exchange point since Mother’s move to Arkansas is two to three hours
longer than to the Nebraska exchange point. Id. at 217.
Father anticipated Child starting kindergarten in fall of 2015 if he
received primary custody. He arranged his teaching schedule to take her to
and pick her up from the bus stop. Id. at 179. Father has supportive
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neighbors who are involved in Child’s life. Id. at 189-90. Father takes care
of Child’s day-to-day needs while she is in his custody. Id. at 192.
Father alleged that Mother has withheld information from him about
childcare arrangements. Id. at 223-24. Father also was concerned that
Mother did not tell him about her new boyfriend, I.C., who he believed was
going to be moving in with Mother. Id. at 227, 231.
Scott Scotilla, Ph.D., a licensed psychologist, performed an evaluation
on Father and testified on his behalf as follows. Dr. Scotilla met Father one
time in November 2014. N.T., 12/22/2014, at 160. Father’s depression,
anxiety and agitation in 2011 resulted, in part, from the medication that he
was taking at that time, and, when Father’s medication was changed, he
saw an improvement in his symptoms. Id. at 170-73. Dr. Scotilla opined
that Father did not have borderline personality disorder, but, instead, had
difficulty with interpersonal relationships. Id. at 177-80. Dr. Scotilla also
indicated that his testing did not show any indications that Father was
struggling with anxiety or depression. Id. at 183. However, based upon
Father’s past history, Dr. Scotilla diagnosed Father with generalized anxiety
disorder that was in remission. Id. at 186. At the time of the hearing,
Father was taking a mood stabilizer and had been since 2011. Id. at 197.
He had stopped taking medication for ADHD in 2014. Id. at 199.
P.R., Father’s mother, testified. P.R. testified that the parties had
difficulties in their marriage after Child was born and that she heard
arguments between them. N.T., 2/27/2015, at 80-82. P.R. reported that
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she flew to Pennsylvania in January 2012 because Mother told her that
Father’s doctor suspected that Father had a brain tumor and that Mother
needed help with Child while Father was seeking treatment. Id. at 84.
Father did not have a tumor, but P.R. stayed to visit with the family. While
P.R. was visiting in January 2012, Father was taking psychiatric medication
and P.R. admitted that it appeared to cause unusual behavior in Father. Id.
at 86. P.R. testified that Father is a loving parent and engages in a lot of
activities with Child. Id. at 88-89.
R.T., Father’s sister also testified. R.T. recalled an incident in 2011
when Mother and Father were arguing and Mother grabbed Father’s arm to
prevent him from leaving and pulled him toward her. R.T. did not believe
Mother hurt Father. Id. at 108-09. R.T. had no concerns about Father’s
ability to parent Child. Id. at 116.
On rebuttal, Mother denied that she told Father that he had a brain
tumor. Id. at 287. Mother testified that her psychologist speculated that
Father’s behavioral issues might have a physical, rather than psychological,
cause; Mother shared that idea with Father. Id. at 287-88. Mother testified
that she met I.C. through a single-parent website about a year before the
hearing. Id. at 288. I.C. lived in Canada so he had only met Child twice.
Id. at 289-90. I.C. came to Pennsylvania to see Mother while the hearing
was occurring and Mother invited Father to meet I.C. Id. at 289. Mother
testified that I.C. does not live with her and there are no plans for him to do
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so. Id. at 291. I.C., with two exceptions, had only visited Mother when
Child was in Father’s custody. Id. at 297.
On April 1, 2015, the trial court entered its order. The trial court
detailed its weighing of the factors pursuant to 23 Pa.C.S.A. § 5328(a)
(“custody factors”) and § 5337(h) (“relocation factors”). Following its
discussion, the trial court denied Mother’s request for relocation and granted
Father’s motion to modify custody. The court ordered shared legal custody,
awarded Father primary physical custody, and awarded Mother custody in
Arkansas for every summer vacation and spring break, in addition to
alternating Thanksgiving and Christmas holidays.
On April 30, 2015, Mother 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 May 1, 2015, the trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a), in which it incorporated its April 1, 2015
opinion and order.
On appeal, Mother raises the following issues for our review:
1. Based upon the evidence and testimony at [the] hearing, and the factors to be considered in [23 Pa.C.S.A. § 5328(a)], did the Trial Court abuse its discretion by failing to confirm primary physical custody of [Child] to [Mother]?
2. Did the Trial Court abuse its discretion by requiring [Mother] to file a Notice of Relocation and immediately changing physical custody without providing [Mother] with an opportunity to be heard at her two-day trial?
3. Did the Trial Court abuse its discretion in applying factors located in Pennsylvania’s Child Custody Relocation Statute, [23 Pa.C.S.A. § 5337(h)] to the instant case, because
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relocation is defined by [23 Pa.C.S.A. § 5322] as “A change in residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights,” and such relocation as defined by Sec. 5322 was not present in this case?
Mother’s Brief at 5.
Our scope and standard of review of a custody order are well-settled:
[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 trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.
E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (citation omitted). With any child custody case, this Court has long stated that the paramount concern is the best interests of the child. Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005). This standard requires a case-by-case assessment of all of the factors that may legitimately affect the “physical, intellectual, moral and spiritual well-being” of the child. Id. When a custody dispute involves a request by a party to relocate, we have explained, “there is no black letter formula that easily resolves relocation disputes; rather, custody disputes are delicate issues that must be handled on a case-by-case basis.” Baldwin v. Baldwin, 710 A.2d 610, 614 (Pa. Super. 1998).
C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012).
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In its order, the trial court denied relocation and changed the physical
custody schedule for the parties. When addressing both relocation and
custody, a trial court is required to consider all of the relevant custody
factors enumerated in 23 Pa.C.S.A. § 5328(a), and all of the relevant
relocation factors pursuant to 23 Pa.C.S.A. § 5337(h). See A.V. v. S.T., 87
A.3d 818, 822-23 (Pa. Super. 2014). The factors are as follows:
(a) Factors. – In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where
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reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328.
(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 on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.
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(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.
In her first issue, Mother asserts that the trial court failed to consider
certain testimony, made factual findings unsupported by the evidence,
and/or mis-weighed the custody factors in section 5328(a). Mother argues
that the trial court ignored testimony that Mother was the primary caretaker
for the majority of Child’s life and then made a factually incorrect finding
that both parents had performed parental duties, especially since Father
provided little testimony regarding his performance of parental duties.
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Mother’s Brief at 21-22. Mother also contends that the trial court incorrectly
determined that the need for stability weighed more favorably for Father
because Mother was the primary caretaker. Mother asserts that she had
witnesses who testified about childcare and other opportunities in Arkansas,
while Father did not have similar witnesses. Id. at 22-23. Mother argues
that the availability of extended family factor should have weighed more
favorably toward Mother since Father’s and Mother’s extended family are
closer geographically to her than they are to Father. Id. at 23-24. Mother
also contends that the evidence did not support the trial court’s conclusion
that she withheld information from Father. Instead, Mother asserts that she
provided Father with information about her move and childcare
arrangements as soon as possible and that she did not need to disclose her
relationship with I.C. because he was not a significant part of Child’s life.
Id. at 24-28. Finally, Mother argues that the trial court’s decision was based
upon her failure to provide the statutory notice of her relocation, her
contention that Father had a brain tumor or borderline personality disorder,
and her failure to inform Father about her boyfriend, none of which, Mother
contends, influence Child’s best interest. Id. at 29-31.
We disagree. First, the trial court did not discount Mother’s role as
primary caretaker. The court acknowledged that Mother was the primary
caretaker while the parties were married. Trial Court Opinion (“T.C.O.”),
4/1/2015, at 2. The trial court also noted, and the testimony supported,
that, after Mother returned to Nebraska, both parties were the primary
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caretaker “for their period of custody.” Id. Father had significant periods of
custody of the relatively young child after Mother moved. It is true that,
sometimes, Father’s family visited or he visited his family during his periods
of custody, there was no evidence offered that demonstrated that anyone
other than Father met Child’s day-to-day needs for these extended periods
of time. Mother takes issue with the trial court’s characterization of the
parties as “sharing custody.” However, the trial court did not suggest that
custody was shared equally, only that both parties exercised physical
custody. Even before the most recent custody litigation was initiated, Child
was spending periods of a month or more with Father.2 Again, there was no
indication that Father was incapable of caring for Child, except for Mother’s
contention that Father’s psychiatric issues possibly could recur.
As for stability and continuity, the trial court found that Child “has
spent more time in State College than in Arkansas.” Id. at 4. Objectively,
that is true. Child had been in State College, at least part-time, since birth.
Child had only been in Arkansas for approximately thirteen weeks. Mother
and some of her witnesses testified that Child had adjusted well to Arkansas.
However, Father testified that Child had attended the same pre-school in
Pennsylvania, that Child would attend kindergarten with some of the children
2 See Parenting Plan, 11/28/2012, at 4 (as an example, “Father shall have custodial time with the child in Pennsylvania from May 5, 2013 to June 24, 2013.”).
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from her pre-school class, and that Child had ties to the community.
Additionally, the fact that Mother provided witnesses beyond her own
testimony does not mean the trial court had to give more weight to that
testimony. The trial court was free to credit Father’s testimony without
corroborating witnesses. There was plenty of evidence in the record to
support the trial court’s conclusion that this factor weighed in favor of
Father.
The trial court found that the availability of extended family factor did
not favor either parent. Id. at 4. The evidence supports this conclusion.
Father’s extended family was in Louisiana, approximately six hours from
Mother and twenty-four hours from Father. Mother’s extended family was in
Nebraska, approximately twelve hours from Mother. Clearly, neither party
has extended family who could respond quickly to an emergency situation or
provide day-to-day support. However, both parents testified to friends,
neighbors, and colleagues who offer support and could provide emergency
care for Child if needed. The trial court’s conclusion that this factor was in
favor of neither parent was supported by the record.
Finally, the trial court, in consideration of level of conflict and
cooperation and the catch-all factor, found that Mother “has shown an
unwillingness to share important information with Father.” Id. at 6, 9-10.
As examples, the trial court noted Mother’s failure to inform Father of her
move, about childcare providers, and about her boyfriend. Id. While
Mother has denied withholding information, testimony, credited by the trial
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court, supports the court’s conclusions. Mother provided an explanation as
to why she did not tell Father about the relocation at the earliest possible
time, but the evidence demonstrates that Mother and Child moved without
Father’s consent when Father shares legal custody, and without waiting for
court approval after Mother knew of Father’s objections. When confronted
with an email sent in October 2014, two months after the move, Mother
admitted that she did not tell Father about her childcare arrangements
immediately. Finally, the evidence demonstrated that Father became aware
of Mother’s boyfriend through Child, indicating that Child had met and
interacted with I.C. prior to Mother disclosing him to Father. While Mother
contends that this did not affect Child’s best interest, we will not second-
guess the trial court’s finding that it is indicative of a pattern of behavior by
Mother when the record provides support for that finding.
We consider that:
[i]t is not this Court’s function to determine whether the trial court reached the “right” decision; rather, we must consider whether, “based on the evidence presented, given due deference to the trial court’s weight and credibility determinations,” the trial court erred or abused its discretion in awarding custody to the prevailing party.
Jacob v. Shultz-Jacob, 923 A.2d 473, 479 (Pa. Super. 2007). Here, the
trial court’s findings of fact and consideration of the custody factors are
supported by the record and it did not abuse its discretion.
Mother next contends that the trial court did not comply with Pa.R.C.P.
1915.4(d), which requires the trial court to issue a decision within fifteen
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days of the conclusion of a trial and 23 Pa.C.S.A. § 5425(a), which requires
notice and an opportunity to be heard. Specifically, Mother argues that, by
granting Father custody in an ex parte August 2014 order, the trial court
created a false status quo that influenced its decision on custody. In
particular, Mother cites the trial court’s language that the parties “shared
custody.” Mother asserts that it was error for the trial court to enter an
emergency order changing custody, then wait several months to hold a
hearing, and then delay further until an order was entered. Mother’s Brief at
31-34.
We first address Mother’s contention that the trial court unduly
delayed its decision. Rule 1915.4 provides, in pertinent part, that:
The judge’s decision shall be entered and filed within 15 days of the date upon which the trial is concluded unless, within that time, the court extends the date for such decision by order entered of record showing good cause for the extension. In no event shall an extension delay the entry of the court’s decision more than 45 days after the conclusion of trial.
Pa.R.C.P. 1915.4(d).
In her account of a thirty-plus day period between the second day of
the hearing and the court’s order, Mother neglects to mention that the trial
court offered the parties the opportunity to provide the court with briefs and
proposed findings of fact and conclusions of law. N.T., 2/27/2015, at 300.
Mother’s counsel deferred to Father’s counsel’s decision on the issue. Id.
Father’s counsel asserted that he wanted to file findings of fact and
requested twenty days to do so. Id. at 301. Mother did not object. The
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trial court memorialized that agreement in a February 27, 2015 order.
Therefore, although the hearing ended on February 27, the record did not
close until twenty days later when the parties submitted what were
essentially written closing arguments. Both Mother and Father took
advantage of that opportunity, with Mother and Father filing their proposed
findings on March 19, 2015. The court’s order followed thirteen days later.
Therefore, we find no violation of Rule 1915.4.3
Next, Mother contends that the trial court violated 23 Pa.C.S.A. § 5425
by not providing her notice and the opportunity to be heard before ruling on
Father’s emergency custody petition. We first note that section 5425 in
Chapter 54 of the Domestic Relation Code relates to the Uniform Child
Custody Jurisdiction and Enforcement Act, which provides the statutory
scheme for determining which court has jurisdiction to enact and enforce
custody orders. However, jurisdiction was not at issue in this case and it
proceeded under Chapter 53, Child Custody, of the Domestic Relations Code.
Therefore, section 5425 was not applicable.
We have held that due process is satisfied when an ex parte order is
entered, but is then followed by a hearing and an opportunity to be heard. ____________________________________________
3 Had there been a violation, it is unclear what remedy would be available. We can find no decisional law that addresses this issue. Other provisions of Rule 1915.4 call for dismissal of a complaint if time limits are not complied with, but subsection (d) provides for no explicit remedy. Requiring a new trial or vacatur of an order, as Mother suggests, would result in judicial inefficiency and further delay finality in the custody case.
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Smith v. Smith, 371 A.2d 998, 1000 (Pa. Super. 1977). Further, our rules
contemplate that emergency or interim orders sometimes must be entered.
See Pa.R.C.P. 1915.4(e) (“Nothing in this rule shall preclude a party from
seeking, nor a court from ordering, emergency or interim special relief at
any time after the commencement of the action.”). We find no error in the
court entering a temporary order in response to Father’s emergency petition.
Mother also complains that the delay between the temporary order
and the final order created a status quo that influenced the trial court. The
trial court entered its emergency order on August 21, 2014 and scheduled a
conference on September 1, 2014. Father requested a continuance. The
conference was held and resulted in a September 10 order which scheduled
a one-day hearing for October 31, 2014. The hearing was then rescheduled
until December 22, 2014 after Father requested a continuance because his
counsel sought to withdraw. When the parties were unable to finish the
hearing in one day, a second day was scheduled for February 27, 2015.
Ideally, the hearings would have been concluded closer in time to the
petition being filed. However, there was no undue delay and no indication
that any delay was not due to scheduling availability. Further, there is no
evidence that the equally shared custody during the pendency of the petition
influenced that trial court’s decision. We find no error.
Finally, Mother argues that the trial court erred in treating this as a
relocation case and applying the relocation factors. Mother contends that a
relocation, as defined by statute and by the parties’ agreement, constituted
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any move that required a change in custody. Mother argues that, because
the distance between Arkansas and Pennsylvania substantially was the same
as the distance between Nebraska and Pennsylvania, her move to Arkansas
did not require a change in Father’s custody and, therefore, was not a
relocation. Mother also complains that some of the facts that the trial court
cited in its relocation analysis should have been considered as part of its
analysis of the custody factors, namely that Mother’s move enhanced her
quality of life by providing her with secure employment and that Mother had
a better financial position in Arkansas. Finally, Mother argues that her
failure to provide ninety days notice of her move should not be held against
her because she acted reasonably by seeking her attorney’s advice and
notifying Father as soon as possible. Mother’s Brief at 34-37.
Mother is correct that the statute defines relocation as “[a] change in a
residence of the child which significantly impairs the ability of a
nonrelocating party to exercise custodial rights.” 23 Pa.C.S.A § 5322(a).
However, the parties agreed to a different definition in their parenting plan,
which the court entered as an order. The parties agreed that “[n]either
party shall permanently relocate if the relocation would necessitate a change
in the parenting plan without a minimum written notice of ninety (90) days
to the other parent.” Parenting Plan, 9/3/2013, ¶11. The plan also set the
parties’ exchange location as South Bend, Indiana. Id. ¶ 4. Therefore,
Mother’s move “would necessitate a change in the parenting plan” because
the exchange location of South Bend would no longer be viable. Therefore,
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by the terms of the parties’ agreement, Mother’s move was a relocation and
the trial court did not err in treating it as such.4
Mother’s argument that the trial court should have considered factors
related to relocation, such as her quality of life and financial position, as part
of the custody determination is without merit. The trial court obviously
considered these factors in making its custody decision. Whether it stated
its consideration was in regards to custody or relocation is without moment.
The trial court weighed the evidence and found in favor of Father. There
was no abuse of discretion that would permit us to interfere with that
determination.
Finally, Mother argues that the failure to provide ninety days notice
should not be held against her because she acted reasonably under the
circumstances. There is nothing in the record to suggest that the trial
4 Further, even if the trial court erred in applying the relocation factors, we have stated that:
[S]everal of the relevant factors of section 5337(h) are encompassed, directly or implicitly, by the custody factors listed in section 5328(a). Any relevant section 5337(h) factor that is not expressly encompassed in section 5328(a) should be considered by the trial court under the catchall provision of section 5328(a)(16).
D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014). As the relocation factors would be either encompassed by the custody factors or considerations in the catch-all provision, it would have been, at most, harmless error for the trial court to explicitly consider the relocation factors had we determined that this was not a relocation case.
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court’s decision hinged upon Mother’s failure to provide notice. At most, the
trial court considered that failure in its larger characterization of Mother’s
pattern of withholding information. Mother provided her reasoning for not
notifying Father about her move. The trial court considered that rationale,
but did not find it persuasive. Such a determination is within the trial court’s
purview, and, without more, we find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/26/2015
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