J-A20045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.A.R.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                   Appellee

           v.

Y.J.B. f/k/a Y.J.R.,

                   Appellant                            No. 246 EDA 2014


           Appeal from the Order entered on December 23, 2013,
              in the Court of Common Pleas of Lehigh County,
                  Domestic Relations, at No: 2008-FC-0042

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED SEPTEMBER 30, 2014

                                       appeals from the Order (hereinafter



Modification of Custody Order and for Permission to Relocate with the Minor

                                                                           er

two children, J.R. (d.o.b. 2/21/02) and K.R. (d.o.b. 2/22/05) (collectively




further proceedings.

      The trial court set forth the relevant factual background and

procedural history underlying this appeal as follows:

            [On October 11, 2013, Mother] filed a [P]etition [for
      Relocation, seek
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     and their [three-year-old son, K.B.], to Switzerland during the


            The parties separated in 2004 and divorced in December
     2007. Mother married [Stepfather] in October 2009, and they
     have one child, [K.B.]

           Father filed for shared legal and physical custody of the
     [C]hildren in January 2008. An agreed Order, dated March 18,
     2008, provided for the parties to share legal custody and for

     physical custody then consisted of alternating weekends, a
     Wednesday overnight prior to his custodial weekends, and two
     overnights

     September 9, 2011, under which they presently continue to
     share legal custody and allocate physical custody of the
     [C]hildren [whereby, d]uring the



     legal custody and have had a custody schedule that has provided
     for Father to have physical custody of the [C]hildren for at least
     five or six overnights every two weeks.

          At the time the [September] 2011 [O]rder was entered,
     Mother had been employed for ten years by Air Products and

     more than $100,000 per year. [Stepfather] had been employed
     by Air Products for about eight years, earning in excess of
     $100,000 per year as a treasury analyst or manager.          In
     February 2011, he left Air Products to join a plastics company,


           As of 2011, Father continued to reside in the home in
     which the [C]hildren had resided while his marriage to Mother
     was intact. He had not re-married and worked as a teacher in a
     school in Perkasie, Pennsylvania, located about forty minutes
     from his home. Mother and [Stepfather] resided approximately
     three miles from Father in the same township and school district.




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            On April 25, 2012, Mother filed a [N]otice of proposed
      relocation to the Berwyn area in Southeastern Pennsylvania, in


      1, 2012. The Superior Court affirmed by a [M]emorandum
      [O]pinion filed on February 15, 2013. D.A.R. v. Y.J.B. F/K/A
      Y.J.R., No. 765 EDA 2012.

                                   ***

             On October 11, 2013, Mother filed her current [N]otice of
      proposed relocation, this time to Horgen, Switzerland[,] for a
      period of two and one-half years.       [Stepfather] had been
      informed that[,] commencing in 2014, his position with Styron
      would be relocated to Switzerland. He could keep his job if he
      relocated to Switzerland, but there were no other positions for
      him in the company. [Stepfather averred that if he were to
      accept the temporary position in Switzerland, his salary would
      significantly increase.]

                                   ***

             The [C]hildren have been accepted at the Zurich
      International School [in Switzerland] when it resumes classes
      after the holiday break in January 2014. Mother proposes that
      if her relocation request is granted, Father should have thirteen
      weeks of custody with the [C]hildren per year, coinciding with
                                                         ter, spring and
      summer breaks. She states she will pay all transportation costs.
      Mother calculated her proposal would result in a reduction of

      hand, if the [C]hildren remain with Father during the school
      year, Mother assumes she would have custody of the [C]hildren


Trial Court Opinion, 1/6/14, at 1-4, 6 (citations and footnotes omitted).

      Following a custody trial, on December 23, 2013, the trial court

entered its Custody Order, which, inter alia, (1) awarded shared legal

custody of the Children to Mother and Father; (2) awarded primary physical

custody to Father until August 1, 2014, and partial physical custody to

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Mother, in accordance with a schedule; (3) directed that, after August 1,

2014, Mother was awarded primary physical custody until August 1, 2015

(and, during this time, she was permitted to relocate the Children to

                                                                        primary

physical custody, Father shall have partial physical custody, with Mother



In response, Mother filed a 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), after which the trial court issued an Opinion.

      On appeal, Mother presents the following issues for our review:

      I. Whether the Trial Court erred as a matter of law and abused
      its discretion
      Relocation where she met her burden of proving that the move is
      in the best interests of the [C]hildren, where she met her burden
      of establishing the integrity of her motive in seeking relocation,
      and when consideration is given to the factors enumerated in 23
      Pa.C.S.A. § 5337(h) as well as those factors referenced in 23
      Pa.C.S.A. § 5328(a)?

      II. Whether the Trial Court erred as a matter of law and abused
                                                                   or
      Relocation where it failed to consider and address each and
      every factor enumerated in 23 Pa.C.S.A. § 5328(a) either on the
      record or in its Memorandum Opinion when required by the law?

      III. Whether the Trial Court erred as a matter of law and abused

      Relocation where it failed to adequately consider and analyze
      each and every factor enumerated in 23 Pa.C.S.A. § 5337(h)[,]
      with appropriate discussion for each factor of the credible
      evidence introduced by the parties and articulation of the Trial

      the other party (or neither) either on the record or in its
      Memorandum Opinion when required by the law?

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     IV. Whether the Trial Court erred as a matter of law and abused
     its discretion when it did not give sufficient weight to the

     consideration of the factors set forth in 23 Pa.C.S.A.
     § 5328(a)(6) and 23
                          -standing preference not to separate siblings,
     where the [Custody] Order entered by the Trial Court
     substantially limits the amount of time the [C]hildren will spend
     with their younger brother and which would have a devastating
     effect on the close relationships [the C]hildren have with one
     another?

     V. Whether the Trial Court erred as a matter of law and abused
     its discretion when it did not give sufficient weight to
                                                    r, as well as

     the family on her income alone, and thereby establishing an
     unreasonable standard, not supported by case law or statute, for
     relocation matters as a result of employment opportunities?

     VI. Whether the Trial Court erred as a matter of law and abused
     its discretion in finding that Stepfather had failed to adequately
     search for other jobs in Pennsylvania as opposed to relocating to
     Switzerland, which is not supported by the law and for which no
     such requirement is imposed in relocation cases in Pennsylvania?

     VII. Whether the Trial Court erred as a matter of law and
     abused its discretion in determining that it is reasonable for
     Mother to travel monthly to the United States when the

     substantial testimony and evidence deduced [sic] at trial that
     Mother did not have adequate child care available to her for
     [K.B.] in Switzerland and that she could not take [K.B.] with her
     to the United States, and where the Trial Court determined that

     [K.B.] when Mother travels to the United States[,] despite there
     being no testimony at trial regarding the Maternal
     Grandpar

     VIII. Whether the Trial Court erred as a matter of law and
     abused its discretion by ordering that for the period [between]
     August 1, 2014[,] until August 1, 2015[,] Mother shall only have


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J-A20045-14



     [C]hildren being enrolled in the Zurich International School?

     IX. Whether the Trial Court erred as a matter of law and abused
     its discretion by ordering that for the period after August 1,
     2015, if the parties cannot agree, that either party may petition
     the Trial Court only on or after August 3, 2015, but then further
     ordering that Mother must turn the [C]hildren over to Father by
     August 15, 2015, forcing an implausible position on Mother in
     requiring her to return the [C]hildren to Lehigh County,
     Pennsylvania[,] without the Trial Court having considered where
     the [C]hildren will live for the next year, causing further
     disruption to the continuity of the lives of the [C]hildren and
     without addressing what is in the best interests for the
     [C]hildren for the following academic year?

     X. Whether the Trial Court erred as a matter of law and abused
     its discretion when it did not give sufficient weight to the

     § 5328(a)(7) and 23 Pa.C.S.A. § 5337(h)(4), given the
                                              ,] where the [C]hildren
     expressed a clear preference to move immediately to
     Switzerland with Mother if permitted to relocate?

     XI. Whether the Trial Court erred as a matter of law and abused
     its discretion when it did not give sufficient weight to the
     extensive educational, financial, and cultural benefits available to
     the [C]hildren in Switzerland?

                  -11.



and second issues, which raise the question of whether the trial court

committed an error of law by failing to consider the sixteen statutory

custody factors set forth in section 5328(a) of the new Child Custody Act
          1




1
 See 23 Pa.C.S.A. §§ 5321 to 5340; see also C.R.F. v. S.E.F., 45 A.3d
441, 445 (Pa. Super. 2012) (stating that, where, as here, the custody
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                    nd in considering only the ten relocation factors set forth



          See                       -30.

      In custody cases, our standard of review is as follows:

      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-
      deductions or inferences from its factual findings. Ultimately,

      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., 45 A.3d at 443 (citation omitted).

      Initially, we observe that in any custody case decided under the Act,

the paramount concern is the best interests of the child. See 23 Pa.C.S.A.

§§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial

court may modify a custody order if it serves the best interests of the child.

23 Pa.C.S.A. § 5338. In making any custody determination, the trial court

must consider the sixteen best interest factors set forth in section 5328(a).

See 23 Pa.C.S.A. § 5328(a);2 see also E.D. v. M.P., 33 A.3d 73, 80 (Pa.



evidentiary proceeding commences on or after the effective date of the Act,
i.e., January 24, 2011, the provisions of the Act apply).
2
   In the interest of brevity, we will not set forth the sixteen best interest
factors herein, and instead refer the reader to the subsection listing the
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Super. 2011). Where, as here, a request for relocation of the subject child is

involved, the trial court must also consider the ten relocation factors

contained in 23 Pa.C.S.A. § 5337(h).       See E.D., 33 A.3d at 81; see also

C.M.K. v. K.E.M.

                                                                            no

black letter formula that easily resolves relocation disputes; rather, custody

disputes are delicate issues that must be handled on a case-by-

(citation and internal quotation marks omitted)).

      In the instant case, while the trial court considered and discussed the

section 5337(h) relocation factors in its Pa.R.A.P. 1925(a) Opinion, it did not

consider the sixteen best interest factors on the record or in its Opinion, nor

did it cite to section 5328(a) in its Opinion.

      Regarding a trial court

best interest factors in cases involving proposed relocation, this Court has

stated as follows:

      All of the factors listed in section 5328(a) are required to be
      considered by the trial court when entering a custody order.
      Section 5337(h) requires courts to consider all relocation factors.
      The record must be clear on appeal that the trial court
      considered all the factors.

            Section 5323(d) [of the Act] provides that a trial court
                                  for its decision on the record or in



factors. We also observe that, effective January 1, 2014, section 5328(a)
was amended to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1)
(providing for consideration of child abuse and involvement with child
protective services).
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      and relocation.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (emphasis in original;

citations to case law and quotation marks omitted).

      After review, we conclude that the trial court committed an error of

law when it failed to consider the section 5328(a) best interest factors,

either on the record or in a written opinion or order.     See id. at 823-24 (in

a relocation case where the trial court had considered the relocation factors,

but not the best interest factors, holding that the trial court erred, and, upon

remand, the court must consider the best interest factors and explain the

reasons for its decision); see also A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa.

Super. 2013) (stating that 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).



on the record applying the section 5328(a) and 5337(h) factors to the facts,

as found by the trial court, requires us to vacate the Custody Order and

remand the matter for further proceedings. See A.V., 87 A.3d at 825. On

remand, the trial court is directed to consider all of the best interest and

relocation factors, and set forth its analysis, with the weight given to each

factor, in a written opinion. Additionally, if the trial court deems it necessary

on remand, it should conduct an additional evidentiary hearing in order to

address all of the best interest and relocation factors.

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remaining issues at this time.

         Order vacated. Case remanded for further proceedings, and the filing

of   a    supplemental   Pa.R.A.P.   1925(a)   Opinion,   consistent   with   this

Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2014




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