J-A29001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 K.L.M.                                   :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 J.P.M.                                   :   No. 1049 EDA 2018

                Appeal from the Order Entered March 8, 2018
            In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): Case ID. 0C1700058

BEFORE:    OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 31, 2018

      K.L.M. (“Mother”) appeals from the order entered March 8, 2018, which

denied her petition for primary physical custody of the parties’ children, S.M.,

a female born in November 2012, and J.M., a male born in December 2015

(collectively, “the Children”), and awarded shared physical custody to her and

J.P.M. (“Father”).   The order also dismissed Mother’s petition for contempt

and denied her counter-affidavit opposing Father’s purported relocation. After

careful review, we affirm.

      We summarize the relevant factual and procedural history of this matter

as follows. Mother and Father are former spouses. During their marriage, the

parties lived with the Children in Philadelphia. They separated in December

2016 and divorced in May 2017. On January 13, 2017, Father filed a complaint

requesting shared legal and physical custody of the Children. Mother filed her

own complaint on February 8, 2017, requesting shared legal custody and


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A29001-18



primary physical custody. The parties entered into a temporary agreement,

dated February 28, 2017, which the trial court entered as an order of court on

March 2, 2017. The order awarded shared legal custody to both parties and

primary physical custody to Mother. In addition, the order included a provision

instructing that neither party “shall make any changes in the residence of any

child which significantly impairs the ability of any other party to exercise their

custodial rights without first complying with all applicable provisions relating

to relocation that are set forth in 23 Pa.C.S. § 5337 and Pa.R.C.P. 1915.17.”

Order, 3/2/2017, at 1-2 (unnecessary capitalization omitted).

      On June 19, 2017, Father filed a petition for expedited custody listing

and/or temporary relief regarding custody, in which he averred that Mother

was not allowing him to have custody of the Children while she was working,

contrary to their best interests. He also requested temporary shared physical

custody pending further order of court. Mother moved from Philadelphia to

Cheltenham, Montgomery County, in August 2017. On September 8, 2017,

Father withdrew his petition.

      On September 12, 2017, the parties entered into a custody stipulation

whereby they each received shared legal and physical custody. Both parties

have unconventional work schedules, as Mother is a paramedic and Father is

a firefighter.   The stipulation provided that custody exchanges would take

place according to Mother’s work schedule, because it is the more consistent

of the two. Specifically, Mother’s schedule alternates between “short weeks,”

including Sunday, Wednesday, and Thursday, and “long weeks,” including

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Monday, Tuesday, Friday, and Saturday. Mother always works the night shift.

The stipulation provided that, during Mother’s short weeks, Father would have

custody of the Children from Wednesday at 9:00 a.m. until Friday at 9:00

a.m. During Mother’s long weeks, Father would have custody from Monday

at 6:00 p.m. until Wednesday at 9:00 a.m. and from Friday at 9:00 a.m. until

Sunday at 4:00 p.m. The trial court entered the stipulation as an order of

court on September 22, 2017.           Once again, the order included a relocation

provision. The provision stated that any party “proposing to relocate with the

child should notify every other individual who has custody rights to the child

by certified mail no later than sixty days prior to any proposed relocation and

file the necessary pleadings with the Philadelphia Court of Common Pleas

pursuant to 23[]Pa[.]C.S. Section 5337.” Order, 9/22/2017, at 4.1

       Shortly after signing the custody stipulation, Mother learned that Father

had moved from Philadelphia and purchased a home in Douglassville, Berks

County. In response to Father’s move, Mother’s counsel sent a letter to the

trial court dated September 26, 2017, asking that it vacate the September 22,

2017 order.     Father’s counsel then sent his own letter to the court, dated
____________________________________________


1 The order also stated, “The parties acknowledge that Father resides in
Philadelphia County, and Mother resides in Montgomery County, however, the
parties agree that Philadelphia shall retain jurisdiction over this matter so long
as either party resides here.” Order, 9/22/2017, at 2. At the start of the
hearing in this matter, Father’s counsel argued that the case should be in
Montgomery County or Berks County where the parties live. N.T., 3/8/2018
at 6-8. After listening to argument from Mother’s counsel opposing a transfer
of venue, the trial court ruled in favor of retaining the case in Philadelphia.
Id. at 8-9. Mother does not question whether Philadelphia was the proper
venue for this matter.

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September 28, 2017, to which Mother responded by sending a second letter,

dated October 3, 2017. On October 4, 2017, Father’s counsel provided Mother

with a notice of proposed relocation, along with a counter-affidavit. Mother

filed the counter-affidavit opposing relocation on November 1, 2017.

      On January 19, 2018, Mother’s counsel sent another letter to the trial

court. In her letter, Mother requested that the court deny Father’s relocation

and award her with primary physical custody of the Children. Mother filed a

petition to modify custody on January 22, 2018, requesting shared legal and

primary physical custody. Mother filed a separate petition for contempt that

same day, in which she argued that Father relocated in violation of the March

2, 2017, and September 22, 2017 orders.

      The trial court conducted a hearing on March 8, 2018, during which it

first heard the testimony of Mother. Mother asserted that traveling to and

from Father’s new home in Berks County is detrimental to the Children and

that they appear hungry, tired, and stressed after returning from his care.

N.T., 3/8/2018, at 35-40, 66-67, 115, 126-28. She questioned how Father

would be able to transport S.M. to school once she starts full-day kindergarten

during the next school year and expressed concern that the Children would

have to wake up earlier in order to complete the trip. Id. at 40-43, 67. She

also touted her status as the Children’s primary caretaker during her marriage

to Father and stated that she is still the primary caretaker despite the shared

physical custody schedule. Id. at 47-49. Mother criticized Father’s decision

to move to Berks County shortly after negotiating the September 12, 2017

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custody stipulation and without providing her with notice. Id. at 31-36. She

testified that she would not have signed the stipulation if she had known of

Father’s impending move. Id. at 35-36, 130.2

       After Mother’s testimony, the trial court attempted to interview S.M.

However, the process proved too upsetting for S.M. and she did not answer

any questions.      Id. at 163.     The court then heard testimony from Father.

Father challenged Mother’s claim that the Children were doing poorly in his

care, stating that their trips to and from Berks County last less than an hour

and resemble a “press conference” during which the Children ask him many

questions. Id. at 175, 180. He defended his decision to leave Philadelphia,

describing it as an increasingly dangerous and drug-ridden environment and

expressing concern with the quality of its public schools. Id. at 171-72. He

also discussed his own performance of parental duties after his separation

from Mother. Id. at 181-87.

       Following the hearing, the trial court entered the order complained of

on appeal, in which it awarded the parties shared legal and physical custody

of the Children pursuant to the same schedule contained in the September 22,



____________________________________________


2 Notably, Father’s counsel conducted cross-examination of Mother, during
which he questioned her extensively about a Protection From Abuse (“PFA”)
proceeding she initiated against Father in December 2016. Mother obtained
a temporary PFA order but a trial court vacated the order and dismissed her
petition after a hearing. N.T., 3/8/2018, at 81-84, 103-04.




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2017 order.3 The court further dismissed Mother’s petition for contempt and

denied her counter-affidavit opposing Father’s purported relocation. Mother

timely filed a notice of appeal on April 6, 2018, along with a concise statement

of errors complained of on appeal.4 The court filed an opinion on July 18,

2018.

        Mother now raises the following issues for our review:

        1) Whether the trial court abused its discretion when it failed to
        delineate the reasons for its decision and apply the factors listed
        in 23 Pa. C.S. §5337 and 23 Pa. C.S. §5328 within a timely
        manner after it issued its March 8, 2018, Order?

        2) Whether the Trial Court erred when it did not explain all ten
        relocation factors listed in 23 Pa. C.S. §5337?

        3) Whether the Trial Court’s failure to consider the fact that Father
        did not give Mother timely notice of his relocation was an abuse
        of discretion?




____________________________________________


3 The copy of the docket contained in the certified record indicates that the
trial court entered its order on March 8, 2018. Curiously, Mother filed a copy
of the trial court docket in this Court at the same time as her notice of appeal.
Mother’s copy of the docket indicates that the court entered its order on March
20, 2018. We observe that Mother’s appeal is timely using either date so that
we need not resolve this discrepancy.

4 Mother also filed a motion for reconsideration on April 6, 2018. The trial
court issued a rule to show cause order on May 1, 2018, scheduling a hearing
on the motion. However, by then, the time to grant or deny reconsideration
had already passed. See Pa.R.A.P. 1701(b)(3)(ii) (providing that the trial
court must file an order granting reconsideration “within the time prescribed
by these rules for the filing of a notice of appeal or petition for review of a
quasijudicial order with respect to such order, or within any shorter time
provided or prescribed by law for the granting of reconsideration.”).


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      4) Whether the Trial Court abused its discretion in finding that the
      parties should continue shared custody and that such was in the
      children’s best interests, despite Father’s move?

      5) Whether the Trial Court’s failure to find Father in Contempt of
      Court, to issue sanctions or award counsel fees and costs was an
      abuse of discretion?

Mother’s brief at 3.

      We review Mother’s claims in accordance with our well-settled standard

of review:

      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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

      When a trial court makes an award of custody, the best interest of the

child is paramount. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014).

The factors that a court must consider when awarding custody are set forth

at 23 Pa.C.S.A. § 5328(a):


      (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:



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          (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.

          (2.1) The information set forth in section 5329.1(a)
          (relating to consideration of child abuse and
          involvement with protective services).

          (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.

          (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.

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J-A29001-18



            (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.A. § 5328(a).

      In addition, when considering a request for relocation, a trial court must

consider the following factors:

      (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.




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J-A29001-18


            (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.

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

23 Pa.C.S.A. § 5337(h).

      In its opinion, the trial court found that it would be in the Children’s best

interests to continue with the shared custody arrangement contained in the

September 12, 2017 stipulation. Trial Court Opinion, 7/18/2018, at 5. The

court noted that it did not need to discuss the Section 5328(a) factors because

it did not change the parties’ custody award. Id. at 6. Nonetheless, the court




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J-A29001-18


proceeded to discuss each of the factors.5,        6   Id. at 7-12. The court reasoned

that it would be appropriate for the Children to maintain a routine schedule

and develop a relationship with both parties. Id. at 5. It found that Father

does not pose a risk of harm to the Children despite Mother’s past allegations

of abuse. Id. at 7. In addition, it found that both parties are equally able to

attend to the Children’s needs and provide love, stability, and nurturance. Id.

at 8-10. The court seemingly rejected Mother’s assertion that traveling to and

from Berks County is detrimental to the Children. See, e.g., id. at 10 (noting

the distance between the parties but finding that it would be in the Children’s

best interests to spend an equal amount of time in each parent’s custody). It

also declined to fault Father for failing to provide notice of his move to Mother,

observing that Mother failed to provide notice of her own move to Montgomery




____________________________________________


5 We disagree with the trial court that it did not need to consider the Section
5328(a) factors in this case. This Court has explained that trial courts must
consider the factors whenever a party requests modification of a custody
award, even if the court ultimately denies that request. S.W.D., 96 A.3d at
406 (concluding that the trial court in a custody case “was required to consider
all the § 5328(a) best interest factors. Even if the trial court only reaffirmed
its prior order, it nonetheless was ruling upon a request to change the form of
physical custody and, therefore, bound to decide whether the prior order
remained in Child’s best interest.”). Nonetheless, because the court went on
to discuss the Section 5328(a) factors anyway, we need not remand for further
explanation of its decision.

6The trial court did not conduct a separate analysis of Section 5328(a)(2.1).
However, the parties presented no evidence relevant to that factor during the
hearing.

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J-A29001-18


County to Father and that his motivation was to give the Children a better life

by moving to a safer community with better schools. Id. at 11-12.

      The trial court further addressed its ruling permitting Father’s relocation.

The court did not include a separate discussion of the Section 5337(h) factors

in its opinion, indicating that it considered those factors as part of its Section

5328(a) analysis. Id. at 13. Nonetheless, the court did provide some general

discussion of its relocation decision. The court emphasized that Father agreed

to provide all the transportation for the Children and that his move would not

have a substantial effect on the parties’ existing custody arrangement. Id.

      Finally, the trial court explained that it did not find Father in contempt

because he did not willfully disobey the prior custody orders. Id. at 14-16.

In relevant part, the court reasoned once again that Mother did not provide

notice of her own move to Montgomery County. Id. at 14. It further reasoned

that Father moved in order to establish a better environment for the Children

and that the move would have no impact on the parties’ custody arrangement.

Id. at 14-15.

      In her first claim, Mother argues that the trial court abused its discretion

by failing to delineate the reasons for its decision and apply the factors listed

in Sections 5328 and 5337 within a timely manner after issuing the March 8,

2018 order. Mother’s brief at 25-30. Mother contends that the court did not

issue its opinion explaining the order until four months later, on July 18, 2018.

Id. at 25-26. She maintains that the court’s delay violated 23 Pa.C.S.A. §


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J-A29001-18


5323(d), Pa.R.A.P. 1925(a)(2)(ii), and this Court’s case law, requiring reversal

of the order.7 Id. at 26-30.

       We agree with Mother that the trial court committed an error of law by

failing to file an opinion until July 18, 2018. This Court has held that a trial

court in a custody case must file an opinion setting forth the reasons for its

decision prior to the expiration of the thirty-day appeal period. See C.B. v.

J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa.

2013) (“[W]e now hold that section 5323(d) requires the trial court to set

forth its mandatory assessment of the sixteen [Section 5328(a)] factors prior

to the deadline by which a litigant must file a notice of appeal.”); A.M.S. v.

M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013) (“[O]ur holding in C.B. . . .

extends to cases that involve both custody and relocation pursuant to section

5337.”). However, it is clear that the court’s delay in the instant matter did

not prejudice Mother in any way and that remanding this case for that reason

would serve no purpose. Therefore, we conclude that Mother’s first claim does

not entitle her to relief.



____________________________________________


7 Section 5323(d) of our child custody statute provides that a trial court in a
custody case must “delineate the reasons for its decision on the record in open
court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). Further, Rule
1925 (a)(2)(ii) provides that a court in a Children’s Fast Track appeal, “[u]pon
receipt of the notice of appeal and the concise statement of errors complained
of on appeal . . . if the reasons for the order do not already appear of record,
shall within 30 days file of record at least a brief opinion . . . .” Pa.R.A.P.
1925(a)(2)(ii).


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      In her second claim, Mother argues that the trial court erred by failing

to evaluate the Section 5337 relocation factors in its opinion. Mother’s Brief

at 30-33. Mother contends that the court considered the relocation factors

collectively as part of its Section 5328(a) analysis, but did not set forth an

individual analysis as to each factor, in violation of case law. Id. at 33.

      Mother is correct that trial courts in relocation cases must consider each

of the Section 5337 factors when rendering a decision. Courts may not simply

indicate that they considered the factors without further explanation, but must

discuss each factor individually. See E.D. v. M.P., 33 A.3d 73, 81 (Pa. Super.

2011) (explaining that the panel could not ascertain whether the trial court

considered all of the Section 5337 factors and that, “[t]o the extent that the

trial court did consider these factors, it did so in a cursory manner without

references to the record or explanations for its conclusions.”).

      However, because the record confirms that Father did not “relocate” as

the statute defines that term, it was not necessary for the trial court to provide

an exhaustive discussion of the Section 5337 factors. Section 5322 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.A. § 5322. In this case, the court found that Father’s move to Berks

County did not impair Mother’s custody rights significantly and the record




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supports this finding.8      The parties’ custody schedule remained unchanged

following Father’s move to Berks County. Moreover, Father agreed to provide

all transportation to and from custody exchanges, such that his move did not

cause Mother to experience any additional hardship or expense. We discern

no abuse of the court’s discretion.9

       In her third claim, Mother argues that the trial court abused its discretion

by failing to consider adequately Father’s failure to provide timely notice of his

relocation to Berks County. Mother’s Brief at 34-37. She directs our attention

to Section 5337(c), which she states required Father to notify her of his move

well in advance.10 Id. at 34-35. Mother asserts that Father’s failure to notify


____________________________________________


8 In its opinion, the trial court states that Father “relocated” despite its finding
that his move did not impair Mother’s custodial rights significantly. See Trial
Court Opinion, 7/18/2018, at 13 (“Father was permitted to relocate since his
relocation would ultimately have no substantive effect on the existing custody
[a]greement that the parties made.”). We note that this Court need not agree
with the court’s exact rationale and may affirm on any basis that the record
supports. In re A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018) (“The ‘right
for any reason’ doctrine allows an appellate court to affirm the trial court’s
decision on any basis that is supported by the record.”).

9 It is important to note that, even in cases that are not technically relocation
matters, but where the children stand to move a significant distance, “trial
courts should still consider the relevant factors of [S]ection 5337(h) in their
[S]ection 5328(a) best interests analysis.” D.K. v. S.P.K., 102 A.3d 467, 476
(Pa. Super. 2014).

10 Section 5337(c) provides that a party proposing relocation must provide
notice no later than sixty days in advance, unless he or she did not and could
not reasonably know of the relocation in time and cannot delay the relocation
in order to comply with the sixty-day requirement. 23 Pa.C.S.A. § 5337(c).
In that case, the party must provide notice no later than ten days after
learning of the impending relocation. Id.

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her was particularly egregious because the parties were negotiating the

September 12, 2017 custody stipulation at the time, and she would not have

agreed to the stipulation if she knew Father was going to move. Id. at 36-

37.

      As discussed above, the record reveals that Father did not “relocate”

pursuant to our child custody statute, because his move to Berks County did

not impair Mother’s exercise of her custodial rights significantly. Moreover, it

is apparent from the trial court’s opinion that it did consider Father’s failure to

provide notice of his move when rendering its decision. The court noted that

Mother also failed to provide notice of her move to Montgomery County,

observing that both parties “had not communicated with each other regarding

their relocation.” Trial Court Opinion, 7/18/2018, at 14. The court was free

to weigh this evidence as it saw fit, and we must defer to its determination.

V.B., 55 A.3d at 1197.

      Next, Mother argues that the trial court erred by concluding that it would

be in the Children’s best interests for the parties to share physical custody.

Mother’s Brief at 38-44. She takes issue with several of the court’s findings

as to the Section 5328(a) factors. Mother challenges the court’s finding as to

Section 5328(a)(2), contending that Father abused her in the past and that

the court failed to consider the threat of harm that he poses to her. Id. at

40. Mother further challenges the court’s findings as to Sections 5328(a)(4),

(5), (11) and (13), asserting that the Children have a stronger connection to


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Montgomery County than Berks County and that waking up early and traveling

from Father’s home to S.M.’s school is detrimental to them. Id. at 40-43. As

part of her argument with respect to Section 5328(a)(13), Mother maintains

that the court faulted her unfairly for moving to Montgomery County without

notifying Father. Id. at 42-43. She insists that she moved only a distance of

six miles and that she had a temporary PFA order against Father at the time,

which excused her from providing notice. Id. Finally, Mother challenges the

court’s finding as to Section 5328(a)(16), asserting that the court should have

given more weight to the fact that Father failed notify her of his impending

relocation while negotiating the September 12, 2017 custody stipulation. Id.

at 43-44.

      As we stated above, it is within the purview of the trial court to assess

the credibility of witnesses and weigh the evidence when reaching a custody

decision. V.B., 55 A.3d at 1197. The record supports the court’s findings in

this case, and we may not set them aside to reach Mother’s desired result.

While Mother claimed, during the custody hearing, that Father had abused her

in the past, she admitted that her PFA proceedings ended in dismissal after a

hearing. N.T., 3/8/2018, at 83-84, 103-04. Moreover, the trial court in the

custody proceedings heard evidence tending to suggest that Mother’s claims

of abuse were unreliable. For example, Mother testified that Father punched

her in the face, leaving a mark. Id. at 137. This mark was visible on a picture

of Mother that the court viewed during the hearing. Id. at 140. However,


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Mother later admitted that she had been “kicked in the face” while performing

her job as a paramedic prior to commencing the PFA proceedings against

Father. Id. at 132, 141-42. This incident may have been the actual source

of the mark visible in the picture.

      As for Mother’s remaining contentions, she testified that the Children

were overall doing very well under the shared physical custody arrangement.

Id. at 115, 182. This arrangement accommodates the parties’ unusual work

schedules while also awarding them a nearly equal amount of custody time

with the Children. While the Children may not have any connection to Berks

County other than Father, it does not follow that it would be in the Children’s

best interests to spend less time with Father. Finally, we note that the record

belies Mother’s claim concerning her failure to provide notice to Father before

moving to Montgomery County. Mother testified initially that she did not notify

Father because “I had a PFA at the time.” Id. at 103. However, she later

admitted that the PFA proceeding had already ended in dismissal by the time

of her move, and that she did not provide notice merely because “I didn’t want

him to know . . . where I lived.” Id. at 103-04, 108. We discern no abuse of

discretion by the trial court.

      In her fifth and final claim, Mother argues that the trial court abused its

discretion by failing to find Father in contempt, sanction him, and/or award

her with counsel fees. Mother’s Brief at 44-45. Mother emphasizes once again




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that Father failed to notify her of his impending relocation to Berks County

while negotiating their September 12, 2017 custody stipulation. Id.

       Our child custody statute provides as follows, in relevant part:

       (g) Contempt for noncompliance with any custody order.—

              (1) A party who willfully fails to comply with any
              custody order may, as prescribed by general rule, be
              adjudged in contempt. Contempt shall be punishable
              by any one or more of the following:

                     (i) Imprisonment for a period of not more
                     than six months.

                     (ii) A fine of not more than $500.

                     (iii) Probation for a period of not more
                     than six months.

                     (iv) An order for nonrenewal, suspension
                     or denial of operating privilege under
                     section 4355 (relating to denial or
                     suspension of licenses).

                     (v) Counsel fees and costs.

              (2) An order committing an individual to jail under this
              section shall specify the condition which, when
              fulfilled, will result in the release of that individual.

23 Pa.C.S.A. § 5323(g).11

       In order to support a finding of civil contempt, the petitioning party must

demonstrate by a preponderance of the evidence “(1) that the contemnor had


____________________________________________


11 The statute also provides that a trial court “may award reasonable interim
or final counsel fees, costs and expenses to a party if the court finds that the
conduct of another party was obdurate, vexatious, repetitive or in bad faith.”
23 Pa.C.S.A. § 5339.

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notice of the specific order or decree which he is alleged to have disobeyed;

(2) that the act constituting the contemnor’s violation was volitional; and (3)

that the contemnor acted with wrongful intent.” Coffman v. Kline, 167 A.3d

772, 780 (Pa. Super. 2017) (quoting Sutch v. Roxborough Memorial

Hosp., 142 A.3d 38, 67-68 (Pa. Super. 2016), appeal denied, 163 A.3d 399

(Pa. 2016)).

          As we have discussed throughout this memorandum, the record reveals

that Father’s move to Berks County was not a “relocation” as it did not impair

Mother’s custodial rights significantly. Therefore, Father was not in contempt

of the March 2, 2017, and September 22, 2017 orders prohibiting him from

relocating without notice to Mother.        This claim does not entitle Mother to

relief.

          Accordingly, we conclude that the trial court did not abuse its discretion

or commit an error of law by denying Mother’s petition for primary physical

custody of the Children. In addition, we conclude that the court did not abuse

its discretion or commit an error of law by dismissing Mother’s petition for

contempt and by denying her counter-affidavit opposing Father’s purported

relocation. As a result, we affirm the court’s March 8, 2018 order.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




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