J-A14036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    N.M. v. R.M.P.                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 275 WDA 2019

                Appeal from the Order Entered January 22, 2019
     In the Court of Common Pleas of Blair County Orphans' Court at No(s):
                                2010 GN 4608


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY KUNSELMAN, J.: FILED: August 30, 2019

       I respectfully dissent from my learned colleagues on procedural

grounds. I contend that the trial court made two errors, neither harmless.1

First, the court did not properly consider both sets of factors under 23

Pa.C.S.A. § 5337(h) and 23 Pa.C.S.A. § 5328(a) when making its relocation

decision.   Second, it did not properly delineate its reasons for its decision

under 23 Pa.C.S.A. § 5323(d). As I address each in turn, I am cognizant of

the possibility that, at the end of the day, these errors may not alter the

substantive decision; i.e., whether Mother should be permitted to relocate

with Child. What these errors do, however, is impede both Father’s right to

due process and our ability to review the court’s decision.

____________________________________________


1 I join my colleagues, however, in their sanctioning of the trial court’s wise
decision to overlook Father’s noncompliance with Pa.R.C.P. 1915.17 (relating
to objection to the proposed relocation).
J-A14036-19



      Regarding the relocation factor analysis, I recognize that some of

Section 5337(h) relocation factors are similar to the Section 5328(a) custody

factors, and that not every factor is applicable. Nevertheless, we have said

that when a parent seeks to relocate with the child, a court must consider

both sets. See D.K. v. S.P.K., 102 A.3d 467, 476 (Pa. Super. 2014).

      If only the child – and not the parent – stands to move a significantly

distant location, the relocation provisions of Section 5337 are not per se

triggered. D.K., 102 A.3d at 477. However, “[t]rial courts should still consider

the relevant factors of section 5337(h) in their section 5328(a) best interest

analysis.” Id. at 447-478.    As we have explained, several of the relevant

factors of section 5337(h) are encompassed, directly or implicitly, by the

custody factors listed in section 5328(a). Id. at 478. 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). Id. In other words, the relocation factor analysis is an extension

of the best interests factor analysis. They are not independent.

      Here, the trial court erred by not conducting a complete analysis.

Unfortunately, the Majority then compounds the mistake by misconstruing our

pertinent case law. The Majority excused the trial court’s incomplete analysis

by reasoning that the relocation award did not substantially alter each party’s

share of custody. See Majority Memorandum at Footnote 5. But the case cited

by the Majority, A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), does not stand




                                     -2-
J-A14036-19



for the proposition that a full relocation analysis is only necessary when the

parties’ net custodial time is altered.

      Relocation fundamentally changes a family’s dynamic, regardless of

whether the yearly net custodial time of each parent remains the same. When

a non-custodial parent lives in the same community, he or she can still take

an active part in the child’s life. The non-custodial parent can attend teacher

conferences, the child’s baseball game or school play.       The non-custodial

parents can better share the holiday season.       They can make impromptu

custody modifications so that the child can attend special occasions such a

cousin’s bar mitzvah or first holy communion, a grandparents’ anniversary

party, a family funeral, or for a myriad of other reasons. This is the difference

between living five minutes away and living five states away. And this is why

the triggering event of the Section 5328(a) analysis is not only when the

proposed relocation alters yearly net custody time.      The character of non-

custodial time changes as well.      No amount of extended time during the

summer can equate living in the same vicinity as the child.        Courts must

consider both sets of factors when a new award obligates a child to move

a significant distance. See D.K. v. S.P.K., supra.

      In terms of the second error – namely, the court’s improper delineation

of its reasoning – I recognize that the trial court eventually addressed the

substantive reasons for its decision in its Pa.R.A.P. 1925(a) opinion.

Nevertheless, we have explained that the trial court must delineate its reasons

for the award prior to the deadline by which a litigant must file a notice of

                                      -3-
J-A14036-19



appeal, and preferably at the time the custody order is issued or shortly

thereafter. See C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013). Here, the trial

court did not articulate its reasoning until after Father filed an appeal. This

meant Father did not have a fair opportunity to perfect his argument. We

should not penalize Father for an imperfect argument when the trial court

gave him no other choice but to work blindly.

      To illustrate: In C.B., we spoke at length about the trap we would

inadvertently set for appellants – specifically appellants in custody cases – if

we did not require the court to delineate its reasoning somewhat

contemporaneously with its order.

         Once the decision to appeal has been made, if the trial court
         has not yet revealed its reasoning, the parties face the
         equally     challenging    task     of    filing  a Pa.R.A.P.
         1925(b) statement of errors complained of on appeal
         without any insight whatsoever into the trial court's ruling.
         This puts a losing party between the proverbial rock and
         hard place. As noted, lawyers would be in the untenable
         position of attempting to advise clients whether to make the
         financial and emotional commitment to pursue an appeal
         without adequate information upon which to base that
         advice. The parties typically submit a substantial amount of
         information to the trial court, including testimony from the
         parties and experts. An appealing party is left to guess as
         to which information the trial court found pertinent, and how
         the evidence informed the court's analysis of the Act's
         sixteen custody factors. After engaging in such speculation,
         the party must then take that information and develop
         concisely stated issues for appellate review in the 1925(b)
         statement. By rule, such issues must be stated with
         particularity, and anything that the party does not include
         in the statement is waived. Thus, if the party guesses
         wrong, and omits discussion of an issue or fact that the trial
         court later states that it found to be pertinent, that issue
         may be waived. Moreover, to avoid waiver for non-inclusion

                                     -4-
J-A14036-19


          in the Pa.R.A.P. 1925(b) statement, a party would have to
          guess at all the possible issues that might arise from the
          trial court's ultimate explanation of the bases for its ruling.
          This could subject the party to waiver for over-inclusiveness
          or vagueness. It would be absurd to believe that the General
          Assembly intended to force custody litigants to navigate
          blindly and speculatively through proceedings on appeal.

          These problems are complicated further by the fact that, in
          children's fast track custody cases, a litigant must file his or
          her Pa.R.A.P. 1925(b) statement contemporaneously with a
          notice of appeal.

C.B., 65 A.3d at 953-954 (citations omitted).

       Here, had the trial court properly considered the Section 5328(a) factors

and timely delineated its reasons for its decision, I would be inclined to agree

with the Majority’s conclusion that Father’s brief is deficient. As it stands, I

believe the trial court and the Majority put Father between the aforementioned

rock and a hard place, and wholly robbed him of the ability to develop a

proper, coherent argument. Only after having an opportunity to review the

trial court’s rationale could Father have had a fair opportunity to articulate

how, where, and when that court erred/abused its discretion.

       Given this appellate posture, I believe due process requires remand to

allow the trial court to supplement its Section 5337(h) findings with additional

findings of fact under Section 5328(a); then, we must allow Father to submit

an amended brief in light of those findings.2 Father is entitled to at least the

____________________________________________


2 Presumably, Father complied with the order from this Court granting him
leave to file an amended concise statement of errors and submitted the same
to the trial court. It is unclear to me why then the trial court did not submit



                                           -5-
J-A14036-19



trial court’s explanation of its fully contemplated decision, if not a

supplemental hearing.3

       I am mindful that a remand might ultimately do nothing but keep this

family in limbo for several more months. By then, the case might even be

moot. Nevertheless, my objection here goes to the very heart of a parent’s

right to due process. Honoring that fundamental right is worth the wait.

       For those reasons, I respectfully dissent.




____________________________________________


an amended Pa.R.A.P. 1925(a) opinion. Had the court done so, the ball would
have been back in Father’s court, and in turn, he then could have amended
his brief. Had Father not requested to do so, I would have been inclined to
join the Majority.

Perhaps the trial court never revised its original opinion, because it thought
jurisdiction was lost. I allude, of course, to the court’s statement that it
intended to “fine tune” its order after an additional hearing. See T.C.O. at 8.
This raises another problem. Is the court’s relocation order a final, appealable
order under Pa.R.A.P. 341 or is it interlocutory? It seems the trial court was
not finished making its decision at the time this appeal was filed. Perhaps we
should have issued a Rule to Show Cause to determine whether the trial court
sought to conduct more proceedings.

3 I assume there is enough evidence (including testimony) to allow the trial
court to make findings under Section 5328(a) such that a supplemental
hearing is unnecessary. Still, I would relinquish jurisdiction to allow the trial
court to decide that question for itself.

                                           -6-
