J-A04030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.D.W.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                  Appellant

                        v.

L.A.K.,

                  Appellee                     No. 1232 WDA 2014


                 Appeal from the Order entered July 14, 2014,
              in the Court of Common Pleas of Jefferson County,
                    Civil Division, at No(s): 560-2013 C.D.

A.D.W.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                  Appellant

                        v.

L.A.K.,

                  Appellee                     No. 1464 WDA 2014


               Appeal from the Order entered August 28, 2014,
              in the Court of Common Pleas of Jefferson County,
                    Civil Division, at No(s): 560-2013 C.D.

BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY OLSON, J.:                            FILED APRIL 10, 2015

      A.D.W. (“Mother”) appeals from the order entered July 14, 2014

(“relocation order”), which denied Mother’s petition to relocate with J.T.W.

(“Child”) (born in July of 2013), to Oahu, Hawaii, and granted, in part, and



* Retired Senior Judge specially assigned to the Superior Court.
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denied, in part, Mother’s petition to modify L.A.K.’s (“Father”) schedule of

partial custody, directing the parties to submit a proposed stipulation, or

their proposals for partial custody, under the Child Custody Act, (“the Act”),

23 Pa.C.S.A. §§ 5321-5340.1     Mother also appeals from the order entered

August 28, 2014 (“custody order”), which awarded shared legal custody of

Child to Mother, and awarded primary physical custody to Mother, with

partial physical custody for Father, in Pennsylvania, in accordance with a

schedule set forth in the order.2 We affirm the orders on appeal.

       In its opinion entered on July 14, 2014, the trial court ably set forth

the factual and procedural background of this appeal, which we incorporate

herein.   Mother and Father were never married.      Mother resides with her

mother,    K.W.,   (“Maternal   Grandmother”),     and   Child   in   Maternal

Grandmother’s home in Falls Creek, Jefferson County, Pennsylvania. Father

resides in a bed and breakfast (“B & B”) that he purchased in his own name,

with Mother indebted on the note instrument, in Akron, Lancaster County,

Pennsylvania.      The driving distance between the parties’ homes in

Pennsylvania is three and one-half hours. Mother previously was employed

by Chanel, and wishes to relocate to Hawaii with Child so that she may take

another employment position with Chanel.         Mother wishes to live in a


1
    Mother’s appeal of the relocation order was docketed at 1232 WDA 2014.
2
   Mother’s appeal of the custody order was docketed at 1464 WDA 2014.
On October 3, 2014, this Court, acting sua sponte, consolidated both
actions.
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residential area, Kailua, on the island of Oahu.        Father is employed

managing his B & B.

        On July 9, 2013, Mother filed a complaint for custody. On that same

date, the trial court entered an order, ex parte, as part of a scheduling

order, awarding Mother sole legal and physical custody, subject to Father’s

supervised partial custody/visitation in Jefferson County, at Mother’s

discretion, pending further order of court. Moreover, on July 9, 2013, the

trial court scheduled a conciliation conference to occur on September 4,

2013. On September 4, 2013, the parties filed a stipulation, and the trial

court entered an interim order that provided for shared legal custody, with

primary physical custody in Mother, and specified partial custody/visitation

in Father.

        On September 5, 2013, the trial court entered an order scheduling a

mediation conference to occur on December 27, 2013, and, on September

11, 2013, re-scheduled the mediation conference to occur on December 12,

2013.

        On January 8, 2014, the trial court scheduled the custody trial to

commence on April 17, 2014. On January 30, 2014, Father filed a counter-

affidavit to Mother’s proposed relocation with Child. Mother filed a notice of

proposed relocation, affidavit of service, and counter-affidavit regarding

relocation on January 31, 2014.      On February 10, 2014, Father filed a

petition for contempt and special relief, alleging Mother was in contempt of


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the September 4, 2013 order, and a certificate of service of counter-affidavit

regarding relocation. On February 19, 2014, the trial court entered an order

providing that the court would hear all matters regarding the petition for

contempt and special relief at the scheduled custody trial. On April 3, 2014,

the trial court amended the February 19, 2014 order to reflect the proper

date of the scheduled custody trial.

      On April 4, 2014, Father filed a petition for contempt, seeking to have

Mother held in contempt of the February 19, 2014 order. On April 8, 2014,

the trial court entered an order directing that the court would entertain the

contempt petition at the scheduled custody trial on April 17, 2014.

      On April 15, 2014, Mother filed a petition to permit relocation and

modify Father’s schedule of partial custody/visitation. Father filed an answer

to Mother’s complaint for custody on April 17, 2014, along with an answer to

the petition to permit relocation and modify Father’s scheduled partial

custody/visitation.

      On April 17, 2014, the trial court held the custody trial. At the trial,

Mother testified on her own behalf.     Next, she presented the testimony of

H.B., her cousin. N.T., 4/17/2014, at 123-124. Mother also presented the

testimony of T.G., a friend of her family, and C.J.J., her uncle. Id. at 139,

148. Finally, Mother presented the testimony of Maternal Grandmother. Id.

at 152. Mother and Father had the court admit a number of documentary

exhibits.


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        After the custody trial on April 17, 2014, the trial court ordered that

the custody trial would continue on May 27, 2014, and entered a temporary

order to remain in effect until continuation of the custody trial on May 27,

2014.

        On May 23, 2014, Father filed a petition for contempt, seeking to hold

Mother in contempt of the April 17, 2014 order. On May 27, 2014, the trial

court entered an order providing that it would entertain the petition at the

custody trial on that same date.

        At the custody trial on May 27, 2014, Father presented, via telephone,

the testimony of his mother, N.H. (“Paternal Grandmother”).               N.T.,

5/27/2014, at 6.     Next, Father presented the testimony of his stepfather,

E.H.; his half-brother, J.H.; and his brother, W.K. Id. at 37-38, 45-46, 63-

64.     Mother and Father had the court admit a number of documentary

exhibits.

        At the close of the record at the May 27, 2014 custody trial, Father

agreed to withdraw the petition for contempt filed on May 23, 2014. N.T.,

5/27/2014, at 189, 196. With regard to the motion for contempt filed on

February 10, 2014, the trial court declined to find Mother in contempt and

impose sanctions. Id. at 196-199. With regard to the motion for contempt

filed on April 4, 2014, the trial court ruled that Mother was in contempt of

the February 19, 2014 order for failing to provide a copy of her work

schedule to Father, but did not impose any sanctions on her. Id. at 199.


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      On May 28, 2014, the trial court entered an order, directing the parties

to file briefs with the court by June 10, 2014, and further providing Father

shall have partial custody of Child, and Mother may return with Child to

Hawaii, subject to further orders of the court.

      On July 8, 2014, Father filed a petition to hold Mother in contempt of

the May 28, 2014 order. On July 9, 2014, the trial court entered an order

scheduling a hearing on the petition for August 28, 2014.

      On July 14, 2014, the trial court entered an order denying Mother’s

petition for relocation. In the relocation order, the trial court also granted

Mother’s motion to modify Father’s visitation schedule in part, and denied it

in part. The relocation order provided as follows:

      (a) [Mother’s] Petition to Permit Relocation is DENIED.

      (b) [Mother’s] Petition to Modify [Father’s] Schedule of Visitation
      is granted in part and denied in part.

            (1) Said Petition is DENIED as to any modification of
      custody and partial custody status. The parties shall continue to
      have shared legal custody of the minor child, [Child] . . ., with
      Mother . . . having primary physical custody and Father . . .
      having partial physical custody of said minor child.

             (2) The parties shall submit to the [c]ourt a proposed
      stipulation or their proposals for a schedule of partial custody
      away from the home of [] Mother on a regular basis and with
      sufficient frequency and duration as to foster a bond and a
      comfort level between Father and [C]hild. Said proposals shall
      be submitted to the [c]ourt by July 25, 2014 and the [c]ourt
      shall enter an [o]rder setting said schedule and conditions. In
      the event that neither a stipulation nor proposals are received,
      the [c]ourt shall enter an appropriate [o]rder by August 1, 2014.

Trial Court Order, 7/14/2014.

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J-A04030-15


      In the trial court’s July 14, 2014 opinion, the trial court found that

Mother has substantial debts because she did not have insurance to cover

Child’s birth, and that employment will be important to help her pay off the

debt. The trial court also found that Mother is unable to obtain a bank loan

because she signed onto a mortgage with Father on the B & B with a balance

due of over $300,000 (although Mother’s name is not on the deed).

Moreover, Father cannot re-mortgage the B & B to clear the debt from

Mother’s name.     The trial court also found that Father is behind on his

payments on the mortgage secured by the B & B. The court concluded that,

if Child is permitted to relocate to Hawaii, Father would be financially unable

to travel to Hawaii on a frequent basis sufficient to maintain a bond with

Child. Trial Court Opinion, 7/14/2014, at 3-4.

      On July 25, 2014, 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)(ii) from the relocation order entered on July 14, 2014.        See

1232 WDA 2014. On August 13, 2014, Father filed a petition in this Court

seeking to quash the appeal.     On September 12, 2014, this Court denied

Father’s petition without prejudice.

      In the meantime, on August 26, 2014, Father filed a petition for

special relief in the trial court, seeking, inter alia, the immediate return of

Child to Pennsylvania, extended periods of partial custody, and attorney’s




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J-A04030-15


fees. On August 27, 2014, Father filed a praecipe to withdraw the petition

for contempt filed on July 8, 2014.

      On August 28, 2014, the trial court filed an order providing that

Mother and Father shall have shared legal custody of Child; Mother shall

have primary physical custody; and Father shall have periods of partial

physical custody in accordance with a schedule set forth in the order. The

order provided that it supplemented the order entered on July 9, 2014.

      On September 5, 2014, Mother filed a notice of appeal and a concise

statement of errors complained of on appeal from the custody order entered

on August 28, 2014. See 1464 WDA 2014.

      On September 10, 2014, Father filed a petition for contempt, seeking

to hold Mother in contempt of the August 28, 2014 order. On September

11, 2014, the trial court entered an order scheduling a hearing on the

petition to occur on September 18, 2014.

      On September 12, 2014, the trial court entered an opinion pursuant to

Pa.R.A.P. 1925(a) with regard to the appeal from the relocation order

entered on July 14, 2014.

      On September 17, 2014, Mother filed preliminary objections to

Father’s petition for contempt. After the contempt hearing, on September

18, 2014, the trial court entered an opinion and order on the petition for

contempt, finding Mother in contempt of the July 14, 2014 order.         On




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J-A04030-15


September 18, 2014, the trial court entered an opinion Pa.R.A.P. 1925(a)

with regard to the appeal from the August 28, 2014 custody order.3

      On September 18, 2014, the trial court entered an opinion pursuant to

Pa.R.A.P. 1925(a).

      On appeal, Mother raises two issues for our review:

      I. Whether the trial court erred in concluding that the child’s best
      interests would not be served by allowing a relocation to Hawaii
      that would significantly enhance Mother’s ability to financially
      provide for her child due solely on the geographical distance
      from Father that it would present?

      II. Whether the trial court had jurisdiction under the provisions
      of Pa.R.A.P. 1701 to impose an order establishing a partial
      custody schedule for Father after the order denying Mother’s
      request for relocation had been appealed?

Appellant’s Brief, at 8.

      In his brief, Father raises the issue of whether this Court should quash

Mother’s appeal from the order of the trial court entered on July 14, 2014.

See Father’s Brief, at 13. He argues that Pa.R.A.P. 341, regarding appeals

from final orders, controls the appeals, and that Mother’s appeal from the

order entered on July 14, 2014, was not an appeal from a final order.



3
  On October 17, 2014, Mother filed a notice of appeal and a concise
statement of errors complained of on appeal, with regard to the September
18, 2014 contempt order. See 1701 WDA 2014. On October 29, 2014, this
Court denied Mother’s motion to consolidate that appeal with the present
appeals, the appeals from the relocation and custody orders. On January
28, 2015, the panel of this Court heard oral argument on the present
appeals. Subsequently, on February 6, 2015, Mother withdrew the appeal at
1701 WDA 2014.


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J-A04030-15


      Mother argues in the second issue presented in her brief that she

properly appealed the order entered on July 14, 2014, and that the trial

court lacked jurisdiction to enter the August 28, 2014 order under Pa.R.A.P.

1701, which generally prohibits the trial court from proceeding further in a

matter that is on appeal. She asserts that the trial court’s imposition of a

schedule of partial custody to be exercised in Pennsylvania, with which she

could not comply while residing in Hawaii, did not preserve her rights on

appeal, as required by Pa.R.A.P. 1701(c). Mother argues that, as a result of

her appeal from the July 14, 2014 order, the trial court had no jurisdiction to

enter the August 28, 2014 order, and erred in entering the order. Mother’s

Brief at 16. In support of her argument, Mother relies on In re Deed of

Trust of McCargo, 652 A.2d 1330, 1337 (Pa. Super. 1994), citing Pa.R.A.P.

1701(a) (holding that a trial court order was improper because, inter alia, it

was entered after two appeals had been filed from the original order).

Mother’s Brief, at 23.

      Father responds that the trial court entered the August 28, 2014 order

as its final order, so the matter is governed by Pa.R.A.P. 341. He asserts

that Rule 1701 is inapplicable. Father’s Brief, at 13.

      The trial court explained its decisions in the August 28, 2014 order as

follows:

            1. In this [c]ourt’s [o]rder of July 14, 2014, the [c]ourt
      stated that it was intending to enter a further [o]rder “setting
      said schedule and conditions” and that if the parties did not
      enter either a stipulation or proposal as to partial custody, the

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J-A04030-15


     [c]ourt would enter its [o]rder by August 1, 2014. [Father] filed
     a proposed partial custody schedule. [Mother] did not file a
     proposed partial custody schedule but instead filed an appeal to
     the Superior Court on July 25, 2014. [Father] thereafter filed a
     [m]otion to [q]uash [a]ppeal based upon this [c]ourt’s [o]rder of
     July 14, 2014 not having been a final order of [c]ourt[,] and said
     [m]otion to [q]uash was denied without prejudice by the
     Superior Court on September 12, 2014.             Because of the
     [a]ppeal, this [c]ourt did not enter a final order, [sic] on the
     anticipated dated of August 1, 2014. [Father] thereafter filed a
     [p]etition for [c]ontempt and a [p]etition for [s]pecial [r]elief[,]
     and[,] although said [p]etitions were later withdrawn, this
     [c]ourt, realizing that confusion had been created by its July 14,
     2014 Order[,] which had been intended to be an interim order
     awaiting proposals for partial custody, filed its August 28, 2014
     [o]rder which contains detailed conditions as to custody and
     partial custody, in accordance with Pa.R.A.P. 341(b)(1).

            2. As stated in Paragraph 1 above, the [o]rder of August
     28, 2014 was filed as a final order of this [c]ourt, the previous
     [o]rder of July [14], 2014 having been an interim order which
     left the parties confused and without direction as to how to
     comply with the partial physical custody awarded to the
     [Father]. The order of [July 14], 2014 not being a final order of
     [c]ourt, Pa.R.A.P. 1701 is not applicable. In the event that said
     Rule is deemed to be applicable, the action that this [c]ourt took
     would have been permitted under § 1701(b)(1) in attempting to
     preserve the status quo and under § 1701(b)(2) in providing the
     detail necessary for enforcement of this [c]ourt’s [o]rder of July
     14, 2014.

Trial Court Opinion, 9/18/2014, at 1-2.

     We accept the trial court’s explanation of its intention to enter the July

14, 2014 order as an interim order, pending a final order on the partial

custody schedule for Father, which the trial court entered as its final order

on August 28, 2014. Thus, we agree with the trial court, and Father, that

Pa.R.A.P. 1701 is not applicable to the trial court’s August 28, 2014 order.

We find Mother’s appeal from the August 28, 2014 order was filed from a

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final order pursuant to Pa.R.A.P. 341 and Pa.R.A.P. 905(a).     See G.B. v.

M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (holding that a custody order

will be considered final and appealable only if it is both entered after the

court has completed its hearings on the merits, and intended by the court to

constitute a complete resolution of the custody claims pending between the

parties). Pursuant to Pa.R.A.P. 905(5), “[a] notice of appeal filed after the

announcement of a determination but before the entry of an appealable

order shall be treated as filed after such entry and on the day thereof.”

Pa.R.A.P. 905(5). Here, Mother filed her notice of appeal from the relocation

order prematurely, because the trial court ordered additional actions to

transpire before ruling on the custody matter.   However, under Rule 905,

the appeal was perfected upon entry of the custody order on August 28,

2014. As such, the consolidated appeal is properly before us.

      Thus, we address the merits of Mother’s appeal. Mother contends that

the trial court erred in concluding that Child’s best interests would not be

served by allowing Mother to relocate with Child to Hawaii, solely on the

geographical distance of Hawaii from Father’s home in Pennsylvania. Mother

claims the relocation would significantly enhance her ability to provide

financially for Child.   Mother argues that she succeeded in carrying her

burden of proving that she could provide an improved environment for Child

in Hawaii that would be in Child’s best interest. She asserts that the trial

court erred in denying her relocation petition based on a concern that Father


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would not be able to establish a bond with Child. Mother contends that the

trial court over-emphasized the logistical problems created by the distance

over the financial and emotional benefits that would inure to both her and

Child.

         Initially, we observe that, as the custody trial in this matter was held

in April and May of 2014, the Act, 23 Pa.C.S.A. §§ 5321 to 5340, is

applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding

that, if the custody evidentiary proceeding commences on or after the

effective date of the Act, i.e., January 24, 2011, the provisions of the Act

apply).

         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-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.

Id. at 443 (citation omitted).

         We have stated:

         [t]he discretion that a trial court employs in custody matters
         should be accorded the utmost respect, given the special nature
         of the proceeding and the lasting impact the result will have on

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      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) quoting Jackson

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).

      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard:

      Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating
      the court’s order. An abuse of discretion is not merely an error
      of judgment, but if the court’s judgment is manifestly
      unreasonable as shown by the evidence of record, discretion is
      abused. An abuse of discretion is also made out where it
      appears from a review of the record that there is no evidence to
      support the court’s findings or that there is a capricious disbelief
      of evidence.

Id. at 18-19 (quotation and citations omitted).

      Regarding the definition of an abuse of discretion, this Court has

stated: “[a]n abuse of discretion is not merely an error of judgment; if, in

reaching a conclusion, the court overrides or misapplies the law, or the

judgment exercised is shown by the record to be either manifestly

unreasonable or the product of partiality, prejudice, bias or ill will, discretion

has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super.

2007) (quotation omitted).

      With 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

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custody order if it serves the best interests of the child.        23 Pa.C.S.A.

§ 5338. Section 5328(a) of the Act, 23 Pa.C.S.A. § 5328(a), sets forth the

best interest factors that the trial court must consider. See E.D. v. M.P., 33

A.3d 73, 80-81, n.2 (Pa. Super. 2011).4           Section 5337(h) sets forth the

relocation factors that a trial court must consider when ruling on a relocation

petition.

      Section 5323 of the Act provides for the following types of awards:

      (a) Types of award.—After considering the factors set forth in
      section 5328 (relating to factors to consider when awarding
      custody), the court may award any of the following types of
      custody if it in the best interest of the child:

            (1) Shared physical custody.

            (2) Primary physical custody.

            (3) Partial physical custody.

            (4) Sole physical custody.

            (5) Supervised physical custody.

            (6) Shared legal custody.

            (7) Sole legal custody.

23 Pa.C.S.A. § 5323.



4
  The trial court considered the best interest factors in its opinion filed on
July 14, 2014. See Trial Court Opinion, 7/14/2014, at 5-7. Effective
January 1, 2014, the statute 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). Although applicable at the time
of trial in the present matter, there was no evidence presented that would
have required the trial court’s consideration of this factor.
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      Where a parent requests to relocate with a child, the trial court must

consider the following ten factors set forth within Section 5337(h) of the Act:

      (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.

         (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.



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           (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(h); see E.D., 33 A.3d at 81-82 (“Section 5337(h)

mandates that the trial court shall consider all of the factors listed therein,

giving weighted consideration to those factors affecting the safety of the

child.”); see also D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super. 2014)

(holding that trial court is to consider Section 5337(h) factors only where

parent is relocating with child).

      Moreover, “[w]hen 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.’” C.M.K. v. K.E.M., 45 A.3d 417,

421 (Pa. Super. 2012), quoting Baldwin v. Baldwin, 710 A.2d 610, 614

(Pa. Super. 1998).

      Here, the trial court found the following with regard to the relocation

factors:

      (1) Child has had an almost exclusive relationship with Mother
      and her family since the birth of [C]hild [in] July [] 2013.
      Mother is nurturing, loving and responsive to all of [C]hild’s
      routine needs and [C]hild is bonded with her. [C]hild has a
      similar relationship with the maternal grandmother.

      (2) [C]hild is only one year old and is normal in development
      and is a baby in need of the care a baby must be given. As of
      the date of the hearing he was still being breast fed as well as

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     being given solid foods. [C]hild being an infant, there is no
     indication of what impact relocation would have on him other
     than to deprive him of the relationship with Father and with
     extended family of both Mother and Father. For the next four
     years his educational needs could be met at Falls Creek, Akron
     or Kailua. The [c]ourt has no evidence of the quality of schools,
     only their availability, from kindergarten on into the future.

     (3) Considering the logistics of transporting a one-year old child
     between Hawaii and Lancaster County on a twelve hour flight at
     a cost of well over a thousand dollars, it would be a formidable
     task for the parties to preserve the relationship between Father
     and [C]hild, or, if custody were to be awarded to Father,
     between Mother and [C]hild. This is especially true when Father
     has serious financial problems, is late on mortgage payments
     and may have to close the business he owns and earn his
     income from new ventures with which he is experimenting.
     Although Mother’s financial situation would improve in Hawaii,
     she is at present a creditor [sic] on a large debt out of Father’s
     B&B and could not afford frequent trips.

     (4) [C]hild is unable to express a preference.

     (5) There is an established pattern of conduct on the part of
     Mother to thwart the relationship of [C]hild with Father[.]

     (6) The relocation will enhance the general quality of life for
     Mother financially and in her career as well as emotionally in
     having a satisfying, challenging position and being in a
     stimulating, progressive environment.

     (7) At this stage of his development the relocation would not
     have an effect on [C]hild’s general quality of life. Emotionally,
     he is dependent on his family and caregivers, not on the outside
     environment. Financially, at an unpredictable time in the future
     if Mother is successful in her career, he could benefit from
     enhanced opportunities derived from her income.

     Educationally, it would be a matter of years before this could be
     determined and this [c]ourt does not have evidence as to what
     his educational situation may be when he reaches the age for
     attendance at grade school or even pre-school.

     (8) Mother’s motivation and reasons for wishing to relocate are
     genuine in her desire to better her situation and enhance her

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      career. It is also evident that she has a keen desire, evidenced
      by her and her family’s conduct to date, to prevent Father from
      exercising his rights to parent [C]hild.

      (9) There is no risk of harm to [C]hild of any abuse from either
      party.

      (10) Another relevant factor is that in Hawaii Mother is obligated
      to travel extensively in her work and setting a schedule for
      partial custody would be difficult. In addition, she proposes that
      [Maternal Grandmother] would be making frequent trips and
      could bring [C]hild to Pennsylvania for partial custody periods
      with Father. [Maternal Grandmother’s] hostile conduct with
      Father makes it impossible for her to be the facilitator of
      transfers of [C]hild between the parents.

Trial Court Opinion, 7/14/2014, at 7-8.

      The trial court offered the following reasons for denying Mother

permission to relocate with Child:

      As to the award of custody, itself, the [c]ourt is aware that the
      factors weigh heavily in favor of Mother partially because of her
      being successful in preventing Father from fulfilling his paternal
      role. The negative conduct of Mother in the analysis of the
      factors is significant but the positive factors outweigh the
      negative when the decision of the [c]ourt has to be whether to
      remove [C]hild from Mother’s care and place him in the care of
      [F]ather whom he scarcely knows and who has had no
      experience caring for him. To hold Mother accountable for her
      behavior would be at the expense of a baby whom the [c]ourt
      cannot in good conscience snatch away from the only parent
      with whom he feels secure, comfortable and with whom he has a
      strong bond. Mother’s obstinacy and defiance should not be
      rewarded but the baby cannot be made the victim. Mother
      should not feel a sense of empowerment over having been
      awarded custody but she must, instead, realize that she will not
      be permitted in the future to treat Father as an interloper nor
      shall she stand by to let her family rebuff his legitimate efforts to
      be a father to his child.

      As to relocation, an analysis of the factors reveal[s] that Mother
      has a valuable opportunity to better herself in moving to Hawaii,
      as discussed above. In her testimony she revealed her plan for
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     providing Father with frequent and meaningful periods of partial
     custody if the [c]ourt would grant relocation. The crux of her
     plan was that [Maternal Grandmother] would be travelling back
     and forth frequently between Pennsylvania and Hawaii and could
     bring [C]hild to spend time with Father.             Unfortunately,
     testimony from a number of witnesses established that
     [M]aternal [G]randmother is incapable of taking on that task
     because of her unwarranted treatment of Father and her
     determination to limit visitations and to make Father
     uncomfortable at visits. Mother abetted such behavior on the
     part of [Maternal Grandmother] and, also, made it clear that
     she, herself, hoped to exclude Father as much as possible from
     [C]hild’s life. From the moment that she refused to name Father
     on[C]hild’s birth certificate, an action normally taken only when
     a father is unknown, to the times when she refused to
     communicate in any way, and refused to even see the father on
     his visits even though she was surrounded by friends and family
     who could prevent any misbehavior by Father, she has made it
     clear that being as far away from Father as possible would be an
     ideal situation for her. Despite the factors which show the
     benefits to Mother of relocation, those factors are outweighed by
     [f]actors (3), (5) and (10).        The [c]ourt cannot permit a
     relocation which would deprive [C]hild of a relationship with
     [F]ather. At the age of one, [C]hild would have to see [F]ather
     frequently enough that [F]ather would not be a stranger.
     Otherwise, it would cause fear and be traumatic for [C]hild to be
     dropped off at distant intervals to be with a stranger, his father.
     The [c]ourt could have worked out partial custody in this case
     and could have permitted relocation if Mother had shown her
     willingness to let Father be a father and could be capable of
     paying the costs of monthly visits of Father to Hawaii in months
     when she could not transport [C]hild to Pennsylvania. That not
     being the case, the court finds that relocation would end any
     genuine paternal relationship between Father and [Child].

Trial Court Opinion, 7/14/2014, at 7-9.

     Mother concedes that there is no evidence in the record that she could

afford to pay Father’s costs to travel to Hawaii to see Child. Mother states

that, in fact, the trial court, on September 18, 2014, entered an order on

Father’s contempt petition, which imposed a sanction on her for violating the

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order entered on July 14, 2014.     Mother’s Brief, at 21.   In the contempt

order, the trial court directed Mother to pay the costs of transporting Father

to Hawaii every six weeks, and to pay for his lodging for five days during his

stay while the matter is on appeal.5     Id.   Mother suggests that the trial

court’s sanction confirms that a schedule of partial custody could be worked

out which would allow her to relocate with Child to Hawaii, and that there

should be shared transportation costs. Id. Mother contends that the trial

court’s failure to envision a schedule of partial custody that required Father

to travel to Child in Hawaii ignored the real benefits provided to Mother and

Child from the proposed move to Hawaii, and that the move is in Child’s best

5
  Specifically, in its Memorandum Opinion of September 18, 2014, the trial
court found as follows:

      Mother has not followed the [trial court’s partial custody o]rder
      [of July 14, 2014] because she has not provided any partial
      custody whatsoever. … Mother is clearly in violation of this …
      [o]rder to provide [F]ather with partial custody. At the custody
      hearing, [M]other testified that she or [Maternal Grandmother]
      would return to Pennsylvania [from Hawaii] on a frequent basis
      and would bring [C]hild to visit [F]ather. In the four months
      since the custody hearing, [M]other has not followed through
      with her proposal for providing a remedy to the partial custody
      dilemma caused by her relocation.

Trial Court Memorandum Opinion, 9/18/14, at 1-2. Thus, the trial
court ordered that “[a]s a sanction, [Mother] shall pay the reasonable
travel and lodging expense[s] for [Father] to be able to visit [Child] in
Hawaii at least once every six weeks until a decision is rendered by the
Superior Court [in this appeal].” Order, 9/18/14. At oral argument,
counsel for the parties advised this Court that, as of the date of the
argument, Mother was still living in Hawaii with Child. Nothing in the
certified record indicates whether or not Mother has complied with the
trial court’s September 18, 2014 order by paying Father’s expenses to
visit Child in Hawaii.
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J-A04030-15


interest. Id. at 21-22. In support of her argument, Mother cites cases that

pre-date the enactment of the relocation factors. In her reply brief, Mother

argues that the trial court’s conclusions regarding factors (3), (5), and (10),

as set forth at Section 5337(h), were not supported by the evidence of

record, and that it was unreasonable for the trial court to speculate, in

reviewing factor (8), that she had some ulterior motive in wanting to take

the position in Hawaii.

      After a careful review of the record, we find that the trial court’s

conclusion, regarding factor (8) of Section 5337(h), that “[i]t is also evident

that Mother has a keen desire, evidenced by her and her family’s conduct to

date, to prevent Father from exercising his rights to parent the child[,]” is

supported by the evidence in the record.       There was ample, competent

evidence in the record upon which the trial court could have properly

supported its conclusion that Mother and her family were behaving to

obstruct Father’s partial custody time with Child.    We find no basis upon

which to disturb the trial court’s denial of relocation in this matter, and its

order of partial physical custody for Father in Pennsylvania.        C.R.F. v.

S.E.F., 45 A.3d at 443.

      To the extent that Mother refers to the trial court’s September 18,

2014 order finding her in contempt, we remind Mother that the order

imposed a sanction on Mother to provide for Father to exercise his partial

physical custody rights in Hawaii “until a decision is rendered by the Superior


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Court.”   Trial Court Order, 9/18/14.6   As we are affirming the trial court’s

orders denying relocation and providing for Father to exercise partial custody

in Pennsylvania, we emphasize that Mother must abide by the orders of the

trial court, as “[e]ach court is the exclusive judge of contempts against its

process.” See Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001).

     Orders affirmed.

     Judge Bowes joins this memorandum.

     Judge Strassburger files a Concurring and Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2015




6
  The September 18, 2014 order sanctioning Mother is in the certified record
before this Court, as it was entered the same day as the trial court’s Rule
1925(a) opinion. As noted, supra, Mother has withdrawn her separate
appeal from the September 18, 2014 contempt order, so the order is not
before this Court for a ruling. However, this Court will not permit Mother to
both withdraw her appeal and use the order to bolster her argument. Thus,
we have reviewed the September 18, 2014 contempt order as part of our
review of the certified record, and we clarify for Mother that she must now
comply with the July 14, 2014 relocation order and August 28, 2014 custody
order, as we have affirmed them.
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