J-A35045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.B.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

E.B.,

                         Appellee                   No. 1063 WDA 2014


                      Appeal from the Order June 3, 2014
              In the Court of Common Pleas of Allegheny County
                   Family Court at No(s): FD04-008554-009


BEFORE: BENDER, P.J.E., BOWES, and DONOHUE, JJ.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 20, 2015

        D.B. (“Father”) appeals the custody order denying his petition for

special relief and granting E.B. (“Mother”) legal custody to decide whether to

enroll their twelve-year-old-daughter, K.B., in the Plum Borough School

District. We affirm the trial court’s denial of special relief and selection of

the Plum Borough School District, and we remand with directions.

        Mother and Father married on April 15, 2000 and divorced on

March 24, 2005. K.B. was born of the marriage during October 2002. After

the marriage dissolved, the parties shared legal custody and maintained

equal physical custody.    However, during October 2008, following several

years of custody litigation, the parties entered a consent order wherein they

agreed that Father would maintain primary physical custody approximately

two-thirds of the time during the academic year and the parties would share
J-A35045-14



custody equally during the summer. They continued to share legal custody.

The agreement also provided that K.B. would remain in the Plum Borough

School District until “both parents agree to change her to a different school

district” and specified that K.B. would attend Center Elementary School

“until both parents agree on a different elementary school.”                 See Consent

Order, 10/24/08.

       Father currently resides in Penn Hills and utilizes KinderCare to

transport K.B. to elementary school in Plum Borough on mornings that he

has custody. At some point prior to January 2014, Father desired to move

to   the   North    Allegheny     School       District   and,   in   anticipation   of   his

contemplated move, he filed a motion for special relief seeking authorization

to transfer K.B. from the Plum Borough School District to the North

Allegheny School District.1         Following a hearing, the trial court denied
____________________________________________


1
    Although it is not before this Court, we are constrained to stress our
disapproval of Father’s decision to file a motion for special relief seeking
authority to transfer K.B. to the North Allegheny School District rather than
issuing notice of a proposed relocation from Penn Hills to an unspecified
location within the North Allegheny School District pursuant 23 Pa.C.S.
§ 5337(c).    This decision and the trial court’s apparent imprimatur is
particularly suspect in light of the fact that Father’s chief complaint on
appeal is that the trial court failed to engage in a statutory analysis of K.B.’s
best interest. Had Father complied with § 5337, the trial court would have
addressed the relevant factors, at least as they pertain to the proposed
relocation. We observe that Father specifically disclaimed that his proposed
move constituted a relocation “because it is not affecting mom’s custody
time.”     See N.T., 6/2/14, at 30, 32.            However, he subsequently
acknowledged that, if the transfer was permitted, the parties would have to
amend the custody schedule to significantly reduce Mother’s periods of
physical custody during the school week.             The interference of the
(Footnote Continued Next Page)


                                           -2-
J-A35045-14



Father’s petition for special relief and granted Mother authority to make the

determination. This timely appeal followed. Father complied with Pa.R.A.P.

1925(a)(2)(i) by filing a concise statement of errors complained of on appeal

simultaneously with his notice of appeal.

      On appeal, Father asserts three questions for our review.

      1.     Whether the trial court erred in granting mother the
      authority to select the child's school — where the evidence would
      only support a finding that mother does not meet the child's
      needs and that mother fails to participate in the child's activities
      and homework and fails to properly co-parent with father
      regarding the child — which grant of authority was therefore not
      in child's best interests[.]

      2.     Whether the trial court erred by not giving appropriate
      weight to father as primary custodian and the impact that denial
      of his petition for school choice would have on the minor child as
      of the next school year when significant changes occur affecting
      the minor child and father[.]

      3.    Whether the trial court's failure to permit Father to change
      the child's school was error based upon the child's best interests
      and circumstances arising next school year impacting the child
      and father.

Father’s brief at 6.

                       _______________________
(Footnote Continued)

noncustodial parent’s continued right of physical custody is the definition of
relocation. See 23 Pa.C.S. § 5322 (defining relocation as “[a] change in a
residence of the child which significantly impairs the ability of a
nonrelocating party to exercise custodial rights.”); C.M.K. v. K.E.M., 45
A.3d 417 (Pa.Super. 2012) (as proposed move would significantly impair
nonrelocating parent’s ability to exercise custodial rights, move constituted
relocation within meaning of Child Custody Act). At any rate, as of the date
of the oral argument, Father continued to reside in Penn Hills and had no
specific plans to relocate.



                                            -3-
J-A35045-14



      We review the trial court’s custody order for an abuse of discretion.

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial

court’s factual findings that are supported by the record and its credibility

determinations. Id. This Court will accept the trial court’s conclusion unless

it is tantamount to legal error or unreasonable in light of the factual findings.

Id.

      Father’s first argument has procedural and substantive components.

Initially, relying upon our discussion in S.W.D., supra, Father asserts that

the trial court erred in granting Mother legal custody to choose the school

district for her daughter to attend without first considering each of the

custody factors enumerated in 23 Pa.C.S. § 5328(a).            The substantive

aspect of Father’s argument assails the merits of the court’s decision to deny

Father’s request to transfer K.B. to the North Allegheny School District. We

address the two components seriatim.

      Father contends that the trial court’s determination in this case was

tantamount to an award of a form of legal custody. He asserts that pursuant

to our reasoning in S.W.D., the matter should be remanded for the court’s

consideration of the custody factors pursuant to § 5328(a).          In S.W.D.,

which this Court filed approximately one month after the trial court entered

the order in the case at bar, we addressed a custody order that, inter alia,

denied a father’s request for special relief seeking to change the location of

his child’s kindergarten.   Specifically, the father asked the trial court to

approve his choice of school. Following a hearing, the trial court denied the

                                      -4-
J-A35045-14



petition for special relief and directed that the child attend the school that

the mother preferred.

      As it relates to the issue that is relevant herein, we determined in

S.W.D. that since the trial court simply decided the school that the child

should attend, the court was not required to consider the factors

enumerated in § 5328(a) to determine the child’s best interest.           We

explained, “when read as a whole, it is apparent that the § 5328(a) factors

were designed to guide the best interest analysis when a trial court is

ordering which party has the right to a form of custody.”         Id. at 403

(emphasis in original).    However, we concluded that remand was not

warranted in that case because the trial court did not alter either parent’s

form of legal custody. Instead, the court acted as an arbiter and selected

the school that the child would attend. We reasoned, “the court's decision

here merely resolved an impasse between the parties who shared the legal

right to make this decision.    Stated another way, the trial court merely

arbitrated a dispute between Mother and Father regarding schooling, instead

of granting one of them the right to make that decision.” Id. at 403.

      Although we did not specifically address the inverse scenario that

would require a trial court to engage in a developed consideration of the

statutory factors, our discussion in S.W.D. established the framework to

determine whether that consideration was necessary. We opined, where the

court “alter[s] the custody regime” by conferring upon one parent the sole




                                    -5-
J-A35045-14



right to select the child’s school, it changes that party’s right to a form of

legal custody. Id. at 403-404.

      Thus, pursuant to S.W.D., whether the trial court in the instant case

erred in failing to consider the § 5328(a) factors prior to ruling on Father’s

petition necessarily depends upon the nature of the court’s decision. To the

extent that the trial court granted a form of custody by empowering one

parent the sole right to select K.B.’s school district, the trial court was

required to engage in the § 5328(a) analysis.

      In its entirety, the relevant order provides as follows:

             AND NOW, this 3rd day of June, 2014, after a hearing on
      Defendant's Petition regarding modification of legal custody with
      respect to school choice ONLY, it is hereby ORDERED,
      ADJUDGED, and DECREED that the parties shall continue to
      share legal custody of their minor child, but Mother shall have
      the authority to select the school in which the minor child,
      [K.B.], shall be enrolled. Based on the testimony and evidence
      presented, this Court is confident that Mother’s primary goal is
      to obtain the best education possible for her child. The Court is
      also confident that Mother will actively oversee, monitor, and
      participate in all facets of the child’s education and ensure that
      she is taking advantage of every available opportunity. This
      determination does not mean that Father is less concerned with
      the child’s education. The Court also believes that if Mother
      determines that her choice of schools or evaluation of schools
      was flawed or erroneous, she will reevaluate her decision
      accordingly. Finally, the Court is confident that Mother will
      encourage and solicit Father's input and participation in all facets
      of the child's education.

Trial Court Order, 6/3/14. Additionally, prior to leveling its decision, the trial

court stated in open court, “I’m not going to pick a school, I’m going to pick

a parent [and he or she can choose the school].” N.T., 6/2/14, at 31. As


                                      -6-
J-A35045-14


noted, the trial court did not perform a best interest determination involving

the statutory factors outlined in § 5328(a). Thus, at least initially, it appears

that the § 5328(a) analysis was warranted herein.

      Following Father’s notice of appeal, however, the trial court issued a

Rule 1925(a) opinion that acknowledged the potential implication of our

discussion in S.W.D. on its limited modification of legal custody. Therein,

with the guidance and assistance of the S.W.D. court’s rationale, the trial

court clarified, “Although the June 2, 2014 Order sub judice gave Mother

legal custody to choose K.B.’s school, the effect was a judicial choice of

Plum over North Allegheny.” Rule 1925(a) Opinion, at 9 n.4. Additionally,

the Court proposed that upon regaining jurisdiction from this Court, it

would amend the order to state that “K.B. shall remain in the Plum School

District, but revoking the provisions giving Mother sole legal custody to

select K.B.’s school in the future.” Id.

      Father contends that the trial court’s post-hoc explanation in the

Rule 1925(a) was “logically unsupportable [because] any order awarding

legal custody vis-à-vis school choice can be said to have been a ‘judicial

choice’ of one school district over another.” Father’s brief at 15 (emphasis

in original). He continued that the court’s purported clarification dulls the

S.W.D. court’s “careful distinction between picking schools and picking

parents [to make the determination] into a distinction without a

difference.”   Id.   He stresses that qualitative differences exist between


                                      -7-
J-A35045-14


acting as an arbiter resolving an impasse between parents and selecting

which parent has the right to decide the issue unilaterally.       While we

reject Father’s contentions regarding the effect of the trial court’s

decision, we agree with the premise that the trial court order did not

simply select a school district but actually empowered Mother to decide

which school that K.B. would attend.       We also agree that the court’s

decision to elevate Mother’s shared legal custody over Father’s, at least to

the limited extent of deciding which school to attend, was in essence an

order determining which party had the right of legal custody relating to

that decision.

      It is axiomatic that where a conflict exists between a trial court’s

order and its subsequent rationale set forth in a Rule 1925(a) opinion, the

terms of the order control. Instantly, the express terms of the trial court’s

order direct that “Mother shall have the authority to select the school in

which the minor child . . . shall be enrolled.”        Similarly, the court

specifically expressed during the evidentiary hearing that it was not going

to choose a school, but rather it intended to choose a parent to make the

decision. These facts establish that, without the benefit of our reasoning




                                     -8-
J-A35045-14


in S.W.D., the court augmented Mother’s otherwise equal right to legal

custody, albeit limited to deciding what school K.B. was going to attend.2

       In contrast to the foregoing scenario, to the extent that the trial court

intended to select one of two opposing school districts, a decision that it

undoubtedly was authorized to make, it was relieved from addressing each

of the § 5328(a) factors.        However, the only support for finding that the

order in the present case was not a limited enhancement of Mother’s legal

custody is the trial court’s after-the-fact explanation. Therein lies the rub.

Although the trial court opinion convincingly framed the nature of its

decision as a simple selection of one school district over another, the order

did not declare that intent or accurately reflect the tenor of the court’s post

hoc rationale.

       For the reasons discussed infra, we find that a mechanical

application of S.W.D. is not warranted in this case.          First, despite the

timing of the trial court’s explanation, we have no reason to doubt the trial

court’s contention that it simply intended to select the Plum Borough
____________________________________________


2
   Moreover, aspects of the trial court’s initial rationale conflict with its after-
the-fact clarification provided in the Rule 1925(b) statement. Specifically,
the trial court initially justified the order, in part, by stating its belief that:
(1) Mother’s primary goal is to obtain the best education possible for K.B.;
(2) Mother is engaged in all facets of her daughter’s education; (3) would
reevaluate her decision if it proved flawed; and (4) encourage and solicit
Father’s input in deciding which district to select. See Trial Court Order,
6/3/14. While these factors explain why Mother is suited to choose which
school K.B. should attend, they are all irrelevant to the trial court’s selection
of one school district over the other.



                                           -9-
J-A35045-14


School District over North Allegheny.     Indeed, remanding the matter in

order for the trial court to reiterate its obvious selection of the Plum

Borough School District would be a monument to judicial inefficiency.

Furthermore, cognizant that the trial court order preceded our reasoning

in S.W.D. by approximately one month, we are reluctant to construe the

court’s actions as intentionally awarding Mother a form of legal custody

that would require a comprehensive § 5328(a) analysis, but nevertheless

refusing to engage in the necessary consideration. Stated simply, we are

persuaded by the court’s explanation that it concluded that continuing in

the Plum Borough School District was in K.B.’s best interest and that it

merely approved Mother’s expected decision to keep K.B. in her home

district.   Semantics aside, once the court fashioned an order in favor of

Mother’s preference, i.e., the Plum Borough School District, the rest of the

court’s discussion in the order was surplus.     It is evident from the trial

court’s explanation that it did not intend to award Mother a form of legal

custody. As we have no reason to doubt the trial court’s declaration of its

intention, we will not disturb it. Thus, for all of the foregoing reasons, and

despite Father’s strenuous opposition, we decline to vacate the order and

remand the case for the court’s consideration of the statutory factors.

       Nevertheless, in light of the unmistakable dichotomy between the

trial court’s order and the subsequent expression of its actual intent in the

Rule 1925(a) opinion, and mindful of the court’s specific request to resolve


                                     - 10 -
J-A35045-14


that inconsistency upon the restoration of its jurisdiction, we direct the

trial court upon remand to amend the June 3, 2014 order to make

unequivocally clear that it selected the Plum Borough School District over

North Allegheny School District and to strike any language that could be

construed as awarding Mother a right to a form of legal custody that she

did not otherwise possess.

      Having declined to vacate the underlying order, we next address

Father’s argument challenging the merits of the trial court’s selection.

Specifically, Father assails the court’s conclusion that attending the Plum

Borough School District was in K.B.’s best interest.      For the following

reasons, Father’s claim fails.

      In rejecting Father’s petition to transfer K.B. to the North Allegheny

School District, the trial court reasoned that even though Father presented

evidence in favor of the North Allegheny School District, it was

overwhelmingly in the child’s best interest to avoid altering the custody

schedule unnecessarily and to remain in the school district that she

preferred, which included her network of friends and provided the

extracurricular activities that she enjoys. The court explained,

      Based upon the facts presented, this Court believes that it would
      be in K.B.’s best interest for Mother to choose K.B.’s school
      district. Specifically, K.B. has attended school in Plum for the
      past six years and is involved in many extracurricular programs
      there. She has excelled in Plum, she has excellent grades in
      school, and she has many friends there.         Additionally, the
      proposed move would have a significant impact on K.B.'s
      commute. The time it would take to commute from Plum to

                                    - 11 -
J-A35045-14


      North Allegheny would be a great burden on Mother and K.B. on
      the school days that K.B. is in Mother's custody. Lastly, the
      parties credibly testified that it is K.B.’s strong desire to remain
      in Plum. Based on these factors, the Court believes that the
      status quo is in K.B.’s best interest. Because Mother wishes to
      keep the status quo in place by keeping K.B. in Plum, Mother
      was awarded the right to choose K.B.’s school.

            This Court recognizes that Father has custody of K.B. the
      majority of the time during the school year and that this must be
      given consideration. See Fox v. Garzilli, 875 A.2d 1104, 1108
      (Pa.Super. 2005). This Court is also cognizant that there are
      factors in favor of granting Father legal custody to select K.B.’s
      school. However, the Court finds that, based upon the record, it
      is overwhelmingly in K.B.'s best interests to remain in school in
      Plum and therefore keeping the physical custody arrangement
      unchanged.

Trial Court Opinion, 8/4/14, at 8-9 (footnote omitted).

      The certified record sustains the trial court’s determination. During

the evidentiary hearing, Father testified that K.B. has attended the Plum

Borough School District since kindergarten, a total of six years, and that

she has consistently earned excellent grades.      N.T., 6/2/14, at 74.      He

also indicated that K.B. has several friends in that school district,

participates in Girl Scouts, violin lessons, and bowling, and goes

horseback riding. Id. at 40-41, 80, 81-82. Finally, Father concedes that

K.B. does not want to move to the North Allegheny School District and

prefers to maintain the status quo. Id. at 57-58, 75, 84.

      Mother’s testimony during the hearing regarding K.B.’s grades,

activities, and preference to remain in the Plum Borough School District

were consistent with Father’s evidence; however, she added that K.B.


                                     - 12 -
J-A35045-14


enjoys swimming as well.       Id. at 99-100, 108, 111.       Mother also

discussed the long commute that she and K.B. would have to endure if

Father were permitted to transfer K.B. to the North Allegheny School

District. She explained that it would take her one to two hours for her to

travel from her residence in Plum Borough to the North Allegheny campus

and then to her place of work in the Oakland section of Pittsburgh by 7:30

a.m.    Id. at 101.   She highlighted that the weekday commute would

require K.B. to wake up as early as 4:30 a.m. Id. She also noted that

Father’s proposed adjustment to the custody schedule in order to alleviate

the taxing commute would, in reality, reduce Mother’s custodial periods

during the academic year, a consequence that K.B. rebuffed. Id. at 109.

       The foregoing evidence supports the trial court’s justification for

denying Father’s petition. While Father presented evidence that several of

K.B.’s favorite activities are also available in the North Allegheny School

District, that fact does not render the trial court’s determination

unreasonable.    Instantly, Father’s argument against the trial court’s

findings essentially request that we ignore our standard of review and

reweigh the evidence and make a determination in his favor.      We must

decline. See M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013) (“We

must accept findings of the trial court that are supported by competent

evidence of record. . . . Ultimately, the test is whether the trial court's

conclusions are unreasonable as shown by the evidence of record.”).


                                    - 13 -
J-A35045-14


Accordingly, having found that the certified record sustains the trial

court’s findings of fact and its legal determinations are sound, there is no

basis to disturb the court’s decision to deny Father’s petition for special

relief seeking permission to transfer K.B. to the North Allegheny School

District.

      Father’s remaining complaints allege that the trial court failed to

appreciate the significance of his role as the primary custodian or the

beneficial impact of the proposed move on K.B. These claims also fail.

      Despite Father’s protestations, the trial court, in fact, acknowledged

that Father maintained primary physical custody of K.B. during the

academic year. See Trial Court Opinion, 8/4/14, at 9 It also recognized

that certain factors, such as the respective operating budgets and

standardized test scores, favored transferring K.B. to the North Allegheny

School District.    Id.   Additionally, the court observed that the parties’

current reliance upon KinderCare to bus K.B. from Penn Hills to

neighboring Plum Borough School District would terminate after the child’s

thirteenth birthday and alternative transportation arrangements would be

required next year regardless of which school district the child attends.

Id. at n.3.        Nevertheless, despite these concerns, the trial court

determined the foregoing factors did not outweigh the benefits associated

with K.B. remaining in the Plum Borough School District—the district that

the child attended since kindergarten and where she desires to remain.


                                     - 14 -
J-A35045-14


As we previously explained, since the certified record sustains the trial

court’s best-interest analysis, we will not intrude on that court’s exercise

of discretion in order to emphasize the facets of this case that inure to

Father’s benefit.

      Finally, Father engages in a speculative § 5328(a) analysis to justify

his position that, “If the trial court had analyzed this case through the

prism of the statutory factors, . . . those factors would only have

supported a grant of legal custody to Father of school choice-making

responsibility.”    Father’s brief at 28-29.    As we previously stated, a

comprehensive analysis of each of the factors enumerated in § 5328(a) is

unnecessary in this case. Hence, we reject as superfluous Father’s self-

serving exploration of the statutory factors through the skewed prism of

his subjective perspective.     Additionally, assuming arguendo, that the

§ 5328(a) analysis was required in this case, as an appellate court, we

would not engage in the necessary considerations in the first instance on

appeal.     Under that scenario, the determination remains within the

province of the trial court who weighed the countervailing evidence and

made the credibility determinations.           Thus, Father’s invocation of

§ 5328(a), in an attempt to persuade us that those factors favored

granting him permission to transfer K.B. to North Allegheny School

District, is ineffective.




                                     - 15 -
J-A35045-14


      For all of the foregoing reasons, we affirm the trial court’s decision

to deny Father’s motion for special relief and its determination that K.B.

will continue to attend school in the Plum Borough School District.     We

direct the trial court to amend the order to strike any references that

could be construed as awarding Mother an additional right of legal

custody.

      Order affirmed.     Case remanded with directions.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




                                    - 16 -
