J.A19045/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


J.J.W.,                                     :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
R.P.W.,                                     :
                                            :
                          Appellant         :           No. 280 WDA 2014


                 Appeal from the Order Dated January 16, 2014
               In the Court of Common Pleas of Allegheny County
                    Family Court No(s).: FD 11-007238-0016

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 16, 2014

        Appellant, R.P.W. (“Mother”), appeals from the order entered in the

Allegheny County Court of Common Pleas granting Appellee, J.J.W.’s

(“Father”) petition for modification of custody and relocation. Mother argues

that the court erred in granting Father permission to relocate from

Pittsburgh to Illinois and entering a custody order that is not in the best

interest of their children, J.C.W., born in August of 1999, H.J.W., born in

March of 2002, and P.C.W., born in August of 2005, (“Children”).

Specifically Mother claims the court erred by failing to properly consider the

statutory relocation factors, failing to hear testimony from Children, and




*
    Former Justice specially assigned to the Superior Court.
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permitting Father to relocate to Illinois notwithstanding his failure to give

notice of his proposed relocation.1 We affirm.

        We adopt the facts and procedural history set forth in the trial court’s

opinion.    See Trial Ct. Op., 3/17/14, at 1-10.    See also Findings of Fact,

1/16/14, at 2-34. Following a hearing, the court granted Father’s petition

for modification of custody and relocation.          Order, 1/16/14, at 1-5

(unpaginated).     This timely appeal followed.2    Mother and the trial court

complied with Pa.R.A.P. 1925.

        Mother raises the following issues for our review, which we have

reordered for ease of disposition:

           [1.] Did the trial court err and abuse its discretion when
           considering the relocation factors enumerated in 23
           Pa.C.S.[ ] § 5337?

           [2.] Did the trial court err and abuse its discretion by
           allowing Father to relocate [C]hildren from Pittsburgh to
           Glenwood, Illinois when Father never submitted a [n]otice
           of [p]roposed [r]elocation as required by 23 Pa.C.S.[ ] §
           5337?

           [3.] Did the trial court err and abuse its discretion in
           entering a custody [o]rder that is not in the best interests
           of [C]hildren?

           [4. ] Did the trial court err and abuse its discretion in
           entering an [o]rder that requires a stay-at-home Mother to


1
    Father appeared at the hearing with counsel. Mother appeared pro se.
2
  We note “[n]o motion for post-trial relief may be filed to an order of legal
or physical custody.” Pa.R.C.P. 1915.10(d).




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             travel from Pittsburgh, Pennsylvania to Glenwood, Illinois
             for the majority of Mother’s custody time with [C]hildren?

             [5.]      Did the trial court err and abuse its discretion by
             failing to take testimony from [C]hildren prior to entering
             its [o]rder?

Mother’s Brief at 3.

          We address Mother’s first and second issues together because they are

interrelated. Mother claims the trial court abused its discretion in permitting

Children to “relocate” to Illinois because Father failed to file a proposed

notice of relocation and erred in its consideration of the relocation factors set

forth in 23 Pa.C.S. § 5337. Id. at 12, 17. We find Mother is not entitled to

relief.

          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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

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

Custody Act (“the Act”), the paramount concern is the best interests of the


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child. 23 Pa.C.S. §§ 5328(a), 5338(a). “[W]hen a party files a petition for

modification of a custody order, the trial court must perform a ‘best interests

of the child’ analysis considering all of the section 5328(a) factors.” 3 E.D. v.


3
    Section 5328(a) provides:

           (a) Factors.—In ordering any form of custody, the court
           shall determine the best interest of the child by
           considering     all  relevant   factors,  giving    weighted
           consideration to those factors which affect the safety of the
           child, including the following:

              (1) Which party is more likely to encourage and permit
              frequent and continuing contact between the child and
              another party.

              (2) The present and past abuse committed by a party
              or member of the party’s household, whether there is a
              continued risk of harm to the child or an abused party
              and which party can better provide adequate physical
              safeguards and supervision of the child.

              (3) The parental duties performed by each party on
              behalf of the child.

              (4) The need for stability and continuity in the child’s
              education, family life and community life.

              (5) The availability of extended family.

              (6) The child’s sibling relationships.

              (7) The well-reasoned preference of the child, based on
              the child’s maturity and judgment.

              (8) The attempts of a parent to turn the child against
              the other parent, except in cases of domestic violence
              where reasonable safety measures are necessary to
              protect the child from harm.




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M.P., 33 A.3d 73, 80 (Pa. Super. 2011).        “Under the Child Custody Act,

however, trial courts must consider the ten factors listed in subsection

5337(h)” 4 when considering “whether it is in the best interest of the child to



             (9) Which party is more likely to maintain a loving,
             stable, consistent and nurturing relationship with the
             child adequate for the child’s emotional needs.

             (10) Which party is more likely to attend to the daily
             physical, emotional, developmental, educational and
             special needs of the child.

             (11) The proximity of the residences of the parties.

             (12) Each party’s availability to care for the child or
             ability to make appropriate child-care arrangements.

             (13) The level of conflict between the parties and the
             willingness and ability of the parties to cooperate with
             one another. A party’s effort to protect a child from
             abuse by another party is not evidence of unwillingness
             or inability to cooperate with that party.

             (14) The history of drug or alcohol abuse of a party or
             member of a party’s household.

             (15) The mental and physical condition of a party or
             member of a party’s household.

             (16) Any other relevant factor.

23 Pa.C.S. § 5328(a)(1)-(16).
4
    Section 5337(h) provides:

           (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:




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          (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.

          (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.




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move with the custodial parent outside of the jurisdiction . . . .” Id. at 79,

81 n.3; see also C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012).

The Custody Act defines “relocation” as “[a] change in a residence of the

child which significantly impairs the ability of a nonrelocating party to

exercise custodial rights.” 23 Pa.C.S. § 5322(a).

      Father lives in Glenwood, Illinois, and Children lived with Mother in

Pittsburgh. On June 5, 2013, he filed a motion for special relief in which he

requested, inter alia, primary physical custody of Children.        On July 31,

2013, the trial court entered an order indicating that it would treat Father’s

motion as a petition for modification of custody and for relocation. Order,

7/31/13. In response to a prior petition to modify custody filed by Father,

the trial court stated:

         The [c]ourt notes that this is not a traditional relocation
         case in that neither parent is seeking to move.[5] Father’s
         request for primary physical custody, however, would
         require the children to move from Pittsburgh, Pennsylvania
         to Glenwood, Illinois, and said move would significantly
         impair the ability of Mother to exercise her custody rights.
         As such, this [c]ourt believes that Father’s requested
         action falls within the definition of “relocation” as set forth
         in 23 Pa.C.S.[ ] § 5322. The [c]ourt must therefore
         analyze the ten (10) factors set forth in 23 Pa.C.S.[ ] §

            (10) Any other factor affecting the best interest of the
            child.

23 Pa.C.S. § 5337(h)(1)-(10) (emphasis added).
5
  We note that in the court’s January 16, 2014 findings of fact, issued
following the hearing on relocation and custody, the court stated: “Father
himself is not relocating.” Findings of Fact, 1/16/14, at ¶ 102.



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         5337(h) in     evaluating   Father’s   request    for   primary
         custody.

Findings of Fact, 12/11/12, at ¶ 68.

      We disagree with the trial court’s conclusion that Father’s motion for

special relief should have been treated as a petition for relocation. Our case

law interpreting the Custody Act has construed the statutory language to

apply to situations where a custodial parent seeks to physically relocate with

the child. See, e.g, C.M.K., 45 A.3d at 422 (holding mother’s proposed

move constituted relocation because it significantly impaired father’s ability

to exercise his current custodial rights (emphasis added)); E.D., 33 A.3d at

74; A.V. v. S.T., 87 A.3d 818, 819 (Pa. Super. 2014).            However, in the

instant case, both Father and Mother are “nonrelocating part[ies],” as Father

continues to reside in the marital residence in Illinois and Mother continues

to reside in Pittsburgh.      See 23 Pa.C.S. § 5322(a).          Accordingly, we

conclude that Father’s motion for special relief should not have been treated

as a petition for relocation under the Custody Act.         Therefore, Mother’s

claims that the trial court erred by overlooking Father’s failure to file a notice

of proposed relocation and considering the relocation factors is without

merit. However, we hold the court properly construed Father’s motion as a

petition to modify custody.

      For Mother’s third issue on appeal she claims the trial court erred in

determining that awarding Father primary custody of Children is in their best

interests.   Mother’s Brief at 9.    Specifically, she argues the trial court’s


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conclusions under each of the enumerated Section 5328(a) factors are not

reasonable. Id. at 10. Mother alleges the trial court overemphasized her

alleged failure to encourage Children to contact Father and “placed

overwhelming focus on J.C.W.’s need for specialized schooling . . . .”       Id.

Mother is not entitled to relief.

      Instantly, after careful review of the record, including the notes of

testimony from the January 9, 2014 hearing, the parties’ briefs and the well-

reasoned decision of the Honorable Donald R. Walko, Jr., we affirm on the

basis of the trial court’s decision. See Trial. Ct. Op. at 18-22 (finding (1)

Father more likely to encourage contact between Children and Mother; (2)

Father would perform parental duties as primary custodian; (3) status quo

harmful to Children’s best interest; (4) Mother attempted to turn Children

against Father; and (5) Mother unable to attend to special needs of J.C.W.).

The trial court comprehensively addressed each of the Section 5328(a)

factors and we discern no abuse of discretion by the trial court.    See C.R.F.

45 A.3d at 443.

       For her fourth issue, Mother claims the trial court erred by entering an

order that requires her to travel from Pittsburgh to Illinois for the majority of

her custodial time with Children.6 Mother’s Brief at 11.


6
  We note the trial court made the following, inter alia, findings of fact:
“Father testified that he has worked as a flight attendant with United Airlines
for twenty (25) years. Father further credibly testified that he is able to
obtain low-cost buddy passes through his work if Mother ever wished to fly



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      The trial court opined as follows:

         The [c]ourt initially reminds Mother that this jurisdiction
         abides by a “best interests of the child” standard, not a
         “best interest of the parent” standard.

            The [c]ourt concluded in its January 16, 2014 [f]indings
         of [f]act that the best interest of [Children] would be
         served by providing Father with primary physical custody
         and Mother with extended periods of partial physical
         custody. The [c]ourt then considered how this custody
         arrangement could best be effectuated. As noted in the
         [c]ourt’s [f]indings of [f]act, Pittsburgh, Pennsylvania and
         Glenwood, Illinois are approximately seven (7) hours and
         four (4) minutes apart by car.            While the [c]ourt
         determined that Mother should be able to exercise custody
         of [ ] Children on as frequent a basis as Father was
         granted in the December 10, 2012 [o]rder of [c]ourt, the
         [c]ourt also determined that it would not be suitable for [ ]
         Children to be regularly transported back and forth
         between Illinois and Pittsburgh, as such travel would be a
         recurring, unreasonable disruption to their everyday lives.

             The [c]ourt, therefore, entered an [o]rder that provides
         that Mother may exercise custody of [ ] Children in Illinois
         every other weekend. During Mother’s longer custodial
         periods (e.g., Spring Break, Summer Vacation, and holiday
         breaks), she is able to exercise custody of [ ] Children in
         Pittsburgh.

Trial Ct. Op. at 12-13 (emphasis supplied).           We discern no abuse of

discretion. See C.R.F., 45 A.3d at 443.

      Last, Mother argues the trial court erred and abused its discretion by

not taking Children’s testimony at the January 9, 2014, hearing.           With

respect to this allegation of error, the trial court stated:

to the Chicago area to visit with [ ] children.” Findings of Fact, 1/16/14, at ¶
76.




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           The latest custody proceeding in this case occurred on
        January 9, 2014.[ ] The prior custody proceeding took
        place on November 15 and 16, 2012, approximately one
        (1) year and two (2) months before the more recent
        hearing.    [A.P.W.] and [J.C.W.] testified at the first
        proceeding on November 16, 2012. When contemplating
        whether to interview [ ] Children at the January 9, 2014
        proceeding, the Court determined that exposing the stress
        of another custody hearing to [ ] Children would not be in
        their best interest, especially in consideration of the short
        time period between the trials. Nor did either party
        request that [ ] Children be interviewed or testify at
        the second custody proceeding.

Trial Ct. Op. at 23 (emphasis added).

     This Court has stated:

        “Failure to timely object to a basic and fundamental error .
        . . will result in waiver of that issue. On appeal, the
        Superior Court will not consider a claim which was not
        called to the trial court's attention at a time when any
        error committed could have been corrected. The principle
        [sic] rationale underlying the waiver rule is that when an
        error is pointed out to the trial court, the court then has an
        opportunity to correct the error.”

M.O. v. J.T.R., 85 A.3d 1058, 1061 (Pa. Super. 2014) (citation omitted).

     Mother did not raise this issue at the time of trial. Therefore, we find

this issue waived. See id.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


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Date: 9/16/2014




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