J-S65015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

F.Z.B.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                    Appellant

                         v.

H.S.K.,

                    Appellee                    No. 1505 EDA 2014


                   Appeal from the Order entered April 1, 2014,
              in the Court of Common Pleas of Montgomery County,
                       Civil Division, at No(s): 2012-18218

BEFORE: PANELLA, J., OLSON, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 11, 2014

      F.Z.B. (“Mother”) appeals from the Order entered on April 1, 2014,

awarding primary physical custody of the parties’ minor children to Mother

and partial physical custody to H.S.K. (“Father”), and denying Mother’s

Petition to relocate with the Children to Australia. We affirm.

      The relevant facts of this case are as follows. Father currently resides

in Bryn Mawr, Pennsylvania, with his girlfriend and her two children. Mother

also resides in Bryn Mawr. Mother and Father are the natural parents of two

children, J.K. (born in January 2005) and A.K. (born in February 2007) (“the

Children”).

      Mother is originally from Australia; she came to the United States in

2002 in order to marry Father.     The marriage was an arranged marriage.

* Retired Senior Judge specially assigned to the Superior Court.
J-S65015-14


Mother and Father agreed at the time of their marriage that they would live

in and raise their family in the United States. Both of Mother’s and Father’s

Children were born in the United States and are citizens of the United

States.

     After arriving in the United States, Mother worked for a period of two

and a half years.    Both parties agreed that, following the births of the

Children, Mother would primarily stay at home to care for the Children.

Father also assisted in the Children’s care and worked full time as a

physician.

     Mother testified that, prior to marrying Father when she lived in

Australia, she worked as an assistant manager for KPMG, LLP, a worldwide

accounting firm.    See N.T., 11/1/13, at 121.    Moreover, Mother further

testified that, during her marriage to Father, she worked as a senior auditor

for KPMG in New York and as a senior auditor for Morgan Stanley. See id.

In addition, Mother also testified that she stopped working for Morgan

Stanley because she was having her first child, and that she did not work in

2005 because she was on maternity leave.       See N.T., 8/8/13, at 9, 21.

Mother noted that her income with Morgan Stanley was about $70,000, and

that she formally resigned from Morgan Stanley in June 2005.       See N.T.,

8/8/13, at 21-23. Mother stated that, if she were to move back to Australia,

she would be “eligible to start over again” in becoming a chartered




                                    -2 -
J-S65015-14


accountant. N.T., 11/1/13, at 123. Mother did not have any job offers from

any firms in Australia as of the time of the hearings.

       In 2006, the family left New York to move to San Francisco for

Father’s medical training and employment.          In 2008, the family moved to

Las Vegas for Father’s job.         Mother and Father resided there with the

Children until November 2010, at which time Mother moved with the

Children to Pennsylvania with the intention that Father would follow them at

a later date. See N.T., 11/6/13, at 230-232. Father testified that, during

the period that Mother and the Children lived in Pennsylvania, he traveled to

see them on multiple occasions.       See N.T., 11/7/13, 62.        Mother testified

that   she   and   the   Children   lived   in   her    brother-in-law’s   house   for

approximately seven months.

       Mother and the Children then traveled to Melbourne, Australia, on June

16, 2011. The purpose for their visit was to visit Mother’s family. See N.T.,

1/15/14, at 8, 9. Both Mother and Father testified that the round trip tickets

were purchased for the trip with a return trip date in September 2011. See

N.T., 11/1/13, at 102; N.T., 1/16/14, at 9.            Mother testified that she and

Father never discussed living in Australia together. See N.T., 1/15/14, at 6.

Mother further testified that she did not have a job or attend school or take

classes while in Australia. See N.T., 8/8/13, at 26. Mother and the Children

did not return to the United States as scheduled in September 2011.




                                        -3 -
J-S65015-14


Initially Father agreed that they could extend their visit, but, at the end of

November 2011, he became upset.

        Father testified that it was his understanding that Mother would

eventually return to the United States with the Children, and that the first

time he learned that Mother might not be returning was in an e-mail dated

October 7, 2011. See N.T., 1/15/14, at 9-12. Father also testified that, due

to Mother’s refusal to tell him when she and the Children would be returning

to the United States, he filed an Application for Return of the Children under

the Hague Convention on the Civil Aspects of International Child Abduction

in the beginning of 2012. See N.T., 1/15/14, at 20-21. During the entire

time that Mother and Children were in Australia, Father continued to support

them.

        On June 25, 2012, the Honorable Justice Bennett of the Family Court

of Australia at Melbourne issued an order which stated that the Children

were to be returned to the United States “pursuant to Family Law (Child

Abduction Convention) Regulations 1989.” The Australian order also placed

certain financial obligations and conditions on Father prior to Mother’s return

to the United States. Pursuant to the Order of June 22, 2012, Father was

ordered by the Family Court of Australia at Melbourne to provide Mother with

$35,000.00, airline tickets for Mother and the Children to return to the

United States, and a car for Mother’s use upon her return to the United

States. These conditions were met by Father, and Mother and the Children


                                     -4 -
J-S65015-14


returned to the United States on October 10, 2012. See N.T., 11/1/13, at

111.

       Father testified that, when Mother returned to the United States with

the Children, she refused to tell him where she and the Children were living.

See N.T., 1/15/24 at 70-71.     Father also e-mailed Mother asking for her

address so he could send one of the Children a birthday present, but she

refused to provide the address. She also refused to allow Father telephone

conversations with the Children. Father was limited to his scheduled Skype

sessions. See N.T., 1/15/14, at 87.

       Father testified that, if the Children were permitted to relocate to

Australia with Mother, he would lose communication with the Children on a

regular basis, and would not be involved in any decision making process that

would involve the Children.    See N.T., 1/15/14, at 81.      Father further

testified that, seeing his Children only a few times a year would not be

enough, and that it would not be easy for him to regularly travel to

Australia. See id. Father noted that, while the Children were in Australia,

Mother did not send the Children back to the United States to see him. See

id., at 81.   Father noted that he was employed as an anesthesiologist for

Premier Anesthesia, and that he would go to visit the Children as often as he

could, but that his job and the amount of time involved in traveling would

present problems. See id., at 91-92.




                                      -5 -
J-S65015-14


      On July 9, 2012, Mother filed the June 22, 2012, and June 25, 2012

Australian Orders with the Montgomery County Court of Common Pleas for

the purpose of registering the Orders, and arranged to provide enforcement

of the Orders so that Father would have regular access to the Children. On

July 11, 2012, while Mother and the Children were still in Australia, Mother’s

counsel notified Father’s counsel that Mother intended to return to Australia.

      On July 26, 2012, Father filed a complaint in Divorce in Clark County,

Nevada, which was the location of the marital home and the last place that

Mother and Father resided together with the Children.      On July 27, 2012,

Father filed Preliminary Objections to Mother’s proposed relocation to

Australia. On July 27, 2012, Father also filed Preliminary Objections in the

Montgomery County Court of Common Pleas to jurisdiction and venue and to

the registration of the June 22, 2012 and June 25, 2012 Orders. The court

also considered Mother’s Complaint to Confirm Custody filed on August 9,

2012, Father’s May 13, 2013 Counter-Affidavit Regarding Relocation,

Mother’s June 7, 2013 Motion for Relocation, and Father’s June 19, 2013

Answer to Plaintiff’s Motion for Relocation and Counterclaim for Custody.

Hearings were held on August 8, 2013, November 1, 2013, November 6,

2013, and January 15, 2014.      The trial court issued an Order entered on

April 1, 2014, granting Mother primary physical custody of the Children and

Father partial physical custody.    Mother’s motion for relocation with the

Children to Australia was denied.


                                     -6 -
J-S65015-14


      On April 30, 2014, Mother filed a timely notice of appeal. In addition,

Mother filed a concise statement of matters complained of on appeal on that

date pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      On appeal, Mother presents the following issues for our review:

            A.     Did the [t]rial [c]ourt err by abusing its
                   discretion as to the manner in which it weighed
                   and analyzed factors 1, 2, 3, 5, 6, 7, and 8 of
                   23 Pa.C.S.A. § 5337(h) and thereafter failing
                   to conclude that the best interest of the
                   [C]hildren    warrant   their   relocation   to
                   Australia[?]

            B.     Did the [t]rial [c]ourt err by abusing its
                   discretion by denying approval of Mother’s
                   relocation of the [C]hildren to Australia despite
                   concluding that it was in the best interests of
                   the [C]hildren for Mother to have primary
                   physical custody of the [C]hildren after
                   weighing the custody factors set forth in 23
                   Pa.C.S.A. § 5328(a)[?]1

Brief for Appellant at 9.

      The scope and standard of review in custody matters is well-

established.

             [T]he appellate court is not bound by the deductions or
          inferences made by the trial court from its findings of
          fact, nor must the reviewing court accept a finding that
          has no competent evidence to support it. . . . However,
          this broad scope of review does not vest in the reviewing
          court the duty or the privilege of making its own
          independent determination. . . . Thus, an appellate court
          is empowered to determine whether the trial court’s
          incontrovertible factual findings support its factual

1
  Mother initially raised a third issue in her 1925(b) statement, but Mother
has consolidated arguments raised in her third issue within her discussion of
Issue 1.
                                      -7 -
J-S65015-14


            conclusions, but it may not interfere with those
            conclusions unless they are unreasonable in view of the
            trial court’s factual findings; and thus, represent a gross
            abuse of discretion.

         R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
         (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
         2001)). Moreover,

              [O]n issues of credibility and weight of the evidence,
            we defer to the findings of the trial [court] who has had
            the opportunity to observe the proceedings and
            demeanor of the witnesses.

               The parties cannot dictate the amount of weight the
            trial court places on evidence. Rather, the paramount
            concern of the trial court is the best interest of the child.
            Appellate interference is unwarranted if the trial court’s
            consideration of the best interest of the child was careful
            and thorough, and we are unable to find any abuse of
            discretion.

         R.M.G., Jr., supra at 1237 (internal citations omitted). The test
         is whether the evidence of record supports the trial court’s
         conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.
         Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

         The primary concern in any custody case is the best interests of the

child.     The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well[-]being.        See Saintz v.

Rinker, 902 A.2d 509, 512 (Pa.Super. 2006).

         Because the hearing in this matter was held in March 2014, the Child

Custody Act (“Act”), 23 Pa.C.S. §§ 5321-5340, is applicable. See C.R.F. v.

S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the custody

                                        -8 -
J-S65015-14


evidentiary proceeding commences on or after the effective date of the Act,

i.e., January 24, 2011, the provisions of the Act apply).      Section 5328(a)

provides an enumerated list of factors a trial court must consider in

determining the best interests of a child when awarding any form of

custody:

     § 5328. Factors to consider when awarding custody.

           (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.

             (2.1) The   information    set   forth   in   section
           5329.1(a)(1) and (2) (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.


                                       -9 -
J-S65015-14


            (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.

            (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).

     Separately, § 5337(h) enumerates ten factors a court must consider in

determining whether to grant a proposed relocation:

        (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:



                                    -10 -
J-S65015-14


           (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.

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

23 Pa.C.S. § 5337(h)(1-10).

     This Court has stated, in relevant part, that

                                     -11 -
J-S65015-14


     [w]hen deciding a petition to modify custody, a court must
     conduct a thorough analysis of the best interests of the child
     based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
     A.3d 73, 80 (Pa.Super. 2011). “All of the factors listed in
     section 5328(a) are required to be considered by the trial court
     when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
     652 (Pa .Super. 2011) (emphasis in original). Section 5337(h)
     requires courts to consider all relocation factors. E.D., supra at
     81. The record must be clear on appeal that the trial court
     considered all the factors. Id.

     Section 5323(d) provides that a trial court “shall 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). Additionally,
     “section 5323(d) requires the trial court to set forth its
     mandatory assessment of the sixteen [Section 5328 custody]
     factors prior to the deadline by which a litigant must file a notice
     of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
     appeal denied, 70 A.3d 808 (Pa. 2013). Section 5323(d) applies
     to cases involving custody and relocation. A.M.S. v. M.R.C., 70
     A.3d 830, 835 (Pa. Super. 2013).

A.V., 87 A.3d at 822-823.

     In this case, the trial court set forth a detailed and comprehensive

analysis of each custody factor of § 5328(a) and each relocation factor of §

5337(h) in its opinion accompanying the subject order.        See Trial Court

Opinion, 6/9/14, at 6-9 and 12-33.

     Upon review of the record, we conclude that there is no reason to

disturb the order granting Mother primary physical custody and Father

partial physical custody, and denying Mother’s relocation request. The trial

court thoroughly considered the testimony and the evidence and made

appropriate determinations on the credibility and the weight of the evidence.

In addition, the court applied all of the § 5328(a) factors and the § 5337(h)


                                     -12 -
J-S65015-14


factors, and properly concluded Mother failed to satisfy her burden in

establishing that relocation will serve the Children’s best interest.

      Accordingly, we affirm the trial court on the basis of the thoughtful and

well-written opinion of the Honorable Patricia E. Coonahan.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2014




                                      -13 -
J-S65015-14




              -14 -
