J-A12038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    K.G.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                  v.                           :
                                               :
                                               :
    J.G.                                       :   No. 1900 WDA 2019


                  Appeal from the Order Entered December 3, 2019,
                 in the Court of Common Pleas of Allegheny County,
                      Family Court at No(s): FD17-007652-017.


BEFORE:        KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 17, 2020

           Appellant K.G. (Mother) appeals the trial court’s order denying her

petition to relocate with the Children (seven-year-old A.G. and five-year-old

E.G.) from Allegheny County to California. Mother sought to relocate after

she lost her job in Pennsylvania, but then found a “once-in-a-lifetime”

employment opportunity working in the tech industry near San Francisco.

Appellee J.G. (Father) objected to the relocation. On appeal, Mother argues,

inter alia, that the trial court misapplied the burden of proof section of

Pennsylvania’s relocation statute, 23 Pa.C.S.A. § 5337(i), by imposing upon

her the additional burden of proving she took steps to prevent the relocation.

After careful review, we agree and remand for further analysis.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      The record discloses the following relevant factual and procedural

history. The parties met in Indiana, wed in June 2011, and continued to live

in Indiana after their two Children were born. In October 2016, the family

moved to a suburb of Pittsburgh because Mother desired to be closer to her

family.   When the parties left Indiana, both were able to keep their

employment by working remotely. A few months later, in January 2017, the

parties separated. In May 2017, the parties reached a custody agreement.

On paper, Mother received primary physical custody, subject to Father’s

partial custody of alternate weekends with at least one custodial period during

the off week.     In reality, because the custody arrangement included a right-

of-first-refusal clause, Father actually exercised more custody time whenever

Mother traveled for work. Father was also active in the Children’s extensive

extracurricular activities.

      In February 2019, Mother lost her job after her company was sold.

Mother quickly obtained new employment with a California company. The new

job came with a “tremendous” increase in compensation, but it required

Mother to move to the San Francisco region. In March 2019, Mother filed a

notice of proposed relocation, to which Father timely objected.      In August

2019, Father filed a petition for custody modification. The court held a hearing

on October 15, 2019.          On December 2, 2019, the court denied Mother’s

request to relocate. This timely appeal followed. Mother presents six issues

for our review:




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               1. Did the trial court err, and abuse its discretion, in
                  denying [Mother’s] relocation with the [Children]
                  by placing an additional burden on [Mother] to
                  explore every possible avenue for employment,
                  even at a lower salary outside of her field, rather
                  than relocate for a once-in-a-lifetime job offer?

               2. Did the trial court err, and abuse its discretion,
                  denying the relocation of the [Children] by failing
                  to find that [Mother’s] proposed custody schedule
                  upon relocation could compensate for the distance
                  between the parties upon said relocation where
                  Father has only exercised 30% physical custody to
                  date?

               3. Did the trial court err, and abuse its discretion, in
                  denying [Mother’s] relocation with the [Children]
                  by failing to find that the proposed relocation would
                  enhance the [Children’s] quality of life?

               4. Did the trial court err, and abuse its discretion, in
                  denying [Mother’s] relocation with the [Children]
                  by concluding that the [Children’s] relocation
                  would not likely have a positive impact on their
                  emotional development?

               5. Did the trial court err, and abuse its discretion, in
                  its conclusion denying the relocation of the
                  [Children] with [Mother], as the conclusion was
                  unreasonable in light of sustainable findings of the
                  trial court?

               6. Did the trial court err, and abuse its discretion, in
                  denying the relocation of the [Children] with
                  [Mother], as that conclusion was unreasonable
                  based upon the evidence of record.

Mother’s Brief at 16-17 (superfluous capitalization omitted).

      We start by observing our well-settled standard of review:

         Our scope is of the broadest type and our standard is abuse
         of discretion. This Court must accept findings of the trial
         court that are supported by competent evidence of record,
         as our role does not include making independent factual

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         determinations. In addition, with regard to issues of
         credibility and weight of the evidence, this Court must defer
         to the trial judge who presided over the proceedings and
         thus viewed 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.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012) (citations omitted).

      However, issues of statutory interpretation are questions of law where

“the appellate standard of review is de novo and the appellate scope of review

is plenary.” D.K. v. S.P.K., 102 A.3d 467, 471 (Pa. Super. 2014).

      The Child Custody Act defines a 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(a). Case law directs that a

trial court consider both the factors listed at 23 Pa.C.S.A. § 5337(h)(1-10), as

well as the factors listed at 23 Pa.C.S.A. § 5328(a)(1-16) whenever a

relocation also involves a custody decision. See A.M.S. v. M.R.C., 70 A.3d

830, 836 (Pa. Super. 2013).      The party proposing the relocation has the

burden of establishing that the relocation will serve the best interest of the

children. 23 Pa.C.S.A. § 5337(i)(1). Moreover, “each party has the burden of

establishing the integrity of that party’s motives in either seeking the

relocation or seeking to prevent the relocation.” 23 Pa.C.S.A. § 5337(i)(2).

Specifically, the relevant provisions provide:

         (i) Burden of proof.—

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            (1) The party proposing the relocation has the burden of
            establishing that the relocation will serve the best
            interest of the child as shown under the factors set forth
            in subsection (h).

            (2) Each party has the burden of establishing the
            integrity of that party's motives in either seeking the
            relocation or seeking to prevent the relocation.

23 Pa.C.S.A. § 5337(i)(1)-(2).

      In her first issue, Mother claims the trial court misapplied the law

concerning her burden of proof. See generally Mother’s Brief at 25-27. Her

argument is technical. She claims the court required her to establish, not only

that relocation was in the Children’s best interests, but also that she took

steps to prevent relocation. Id. at 25-26.

      In its Findings of Fact, issued contemporaneously with its order denying

relocation, the court stated that it was “pained to deprive Mother of this

exceptional opportunity but it appears that Mother has not explored every

possible avenue for employment, even at a lower salary and outside of her

specific field.” See Memorandum (“Findings of Fact”), 2/2/19, at *6 (not

paginated). The court ultimately concluded: “Under the relocation statute,

Mother had a duty to prevent relocation, and from the evidence submitted at

trial, this [c]ourt concluded that she failed to meet that burden.” See Trial

Court Opinion (T.C.O.), 1/24/20, at 7.

      The crux of this issue turns on the language of Section 5337(i). When

deciding questions of statutory interpretation, our Court has long recognized




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the following principles of statutory construction set forth in the Statutory

Construction Act, 1 Pa.C.S.A. § 1501, et seq.:

         The goal in interpreting any statute is to ascertain and
         effectuate the intention of the General Assembly. Our
         Supreme Court has stated that the plain language of a
         statute is in general the best indication of the legislative
         intent that gave rise to the statute. When the language is
         clear, explicit, and free from any ambiguity, we discern
         intent from the language alone, and not from the arguments
         based on legislative history or ‘spirit’ of the statute. We
         must construe words and phrases in the statute according
         to their common and approved usage. We also must
         construe a statute in such a way as to give effect to all its
         provisions, if possible, thereby avoiding the need to label
         any provision as mere surplusage.

         Under Section 1921(c), the court resorts to considerations
         of ‘purpose’ and ‘object’ of the legislature when the words
         of a statute are not explicit.... Finally, it is presumed that
         the legislature did not intend an absurd or unreasonable
         result. In this regard, we ... are permitted to examine the
         practical consequences of a particular interpretation.

D.K., 102 A.3d at 471-472 (citation omitted).

      Section 5337(i)(1) clearly provides that the party proposing relocation

(here, Mother) has the burden of establishing that relocation is in the

Children’s best interests. This provision, by itself, is not the source of the

consternation, however. Section 5337(i)(2) adds that “[e]ach party has the

burden of establishing the integrity of that party’s motives in either seeking

the relocation or seeking to prevent the relocation.” (Emphasis added). The

use of the words “each,” “that,” “either,” and “or” clearly relate to the

respective burdens each party faces, depending on which side of the relocation

dispute the parent falls. The party seeking to relocate must establish that the

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J-A12038-20



relocation is in the child’s best interest. That party also must establish the

integrity of his/her motives for requesting the relocation. The party seeking

to prevent relocation must establish the integrity of his/her motives for

opposing the relocation.    This is the totality of the burden analysis under

Section 5337(i)(1)-(2).    Thus, we agree with Mother that the trial court

misinterpreted Section 5337(i)(2), when it presumed that she had to establish

that the relocation could not be prevented. See T.C.O. at 7.

       Father argues otherwise, claiming Mother’s failure to seek alternative

employment locally was relevant to the court’s relocation analysis: “It was

prudent of the trial court to consider Mother’s failure to explore any

alternatives for local employment under Section 5337(h)(8) and (i)(2); to do

so was to investigate into Mother’s motivation, not to impose an additional

burden upon Mother that is unsupported by statute.” See Father’s Brief at 14.

Father contends that the trial court properly considered Mother’s job search

in its best interest analysis, since it is one of the factors the court must weigh

under section (h) of the relocation statute.

      That statute provides, in part:

         (h) Relocations 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:

                                        [***]

            (8) The reasons and motivation of each party for seeking
            or opposing the relocation.

                                        [***]


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23 Pa.C.S.A. § 5337(h)(8).

      We agree with Father that the extent of Mother’s job search could be

relevant under this factor.   However, contrary to Father’s assessment, the

court did not investigate Mother’s motives, or the integrity of her motives,

when weighing the factors of section (h). This is clear from the court’s cursory

findings under section (h)(8), where it concluded: “Both parties testified to

their reasons and motivations for seeking or opposing the relocation and they

are not in bad faith.” See Findings of Fact at *9.

      Here, the problem was the trial court did not consider Mother’s job

search in its best interests analysis; instead, the court erroneously imposed a

separate burden upon Mother, under the mistaken belief that Mother had to

“explore[] every possible avenue for employment, even at a lower salary and

outside of her specific field.” See Findings of Fact at *6. This was incorrect.

      The Dissent interprets this Court’s prior decision in D.K.D. v. A.L.C.,

141 A.3d 566, 577 (Pa. Super. 2016), to conclude that a parent seeking

relocation does have “a duty to mitigate the need for relocation.”          See

Dissenting Memorandum at *2. Respectfully, D.K.D. did not impose a “duty

to mitigate” upon a party seeking to relocate.

      In D.K.D., we reversed the trial court’s decision granting relocation after

we noted, inter alia, the mother’s “search for employment opportunities in

Pennsylvania” was “chiefly symbolic” and that she “neglected to make sincere,

unencumbered effort to find employment in Pennsylvania.” 141 A.3d at 579;




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577. At first blush, our reasoning in D.K.D. appears no different than the trial

court’s reasoning in the instant matter. But there is a critical distinction.

      In   D.K.D.,     we   concluded   that   the   trial   court’s   best   interests

determinations under the factors set forth in section (h) were not supported

by the record, and thus the court committed an abuse of discretion.                For

example, under factors (h)(6) and (7), (whether the relocation will enhance

the general quality of life of the child or the life for the party seeking the

relocation, including, but not limited to, financial or emotional benefit or

educational opportunity), this Court found mother’s “chiefly symbolic” job

search showed that her proposed relocation was primarily about her desire to

return to her Florida roots, and less about the quality of life of her child, who

had special needs. See 23 Pa.C.S.A. § 5337(h)(6-7); see also D.K.D., 141

A.3d at 579-580. Even then, we did not reverse the relocation on this basis

alone, but upon the trial court’s collective errors. Indeed, we found the court’s

conclusions regarding other relocation factors also were not supported by the

record. See id. at 580. Contrary to the Dissent’s view of the case, nowhere

did we suggest that a relocation-seeking parent must attempt to mitigate the

need for relocation.

      Here, we cannot determine whether Mother’s failure to seek a job locally

would have played into the court’s best interest analysis, because the court

did not mention it when analyzing the relocation factors. Rather, the court

committed a legal error when it imposed on Mother the additional burden of

exhausting all possible alternatives to relocation, on top of her burden to prove

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that relocation was in the Children’s best interests. This additional burden has

no basis in the relocation statute or our case law. The court erred when it

held Mother to this higher standard.

      Additionally, contrary to the Dissent, we cannot find this error was

harmless and affirm the trial court, nor can we outright reverse the trial court

and allow the relocation as Mother requested. See Mother’s Brief at 27; 50-

64.   Neither of these actions is appropriate at this juncture.

      First, we cannot find harmless error and affirm the trial court’s order

denying the relocation. The harmless error doctrine is “designed to advance

judicial economy by obviating the necessity for a retrial[.]” See, e.g.,

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012). In custody

cases involving the harmless error doctrine, the question is whether the party

claiming error “suffered prejudice from the mistake.” See J.C. v. K.C., 179

A.3d 1124, 1130 (Pa. Super. 2018) (citing Harman ex el. Harman v. Borah,

756 A.2d 116, 1122 (Pa. 2000)). Thus, we must determine whether Mother

has been prejudiced by the trial court’s misapplication of Section 5337(i).

      Instantly, the trial court plainly thought Mother had an affirmative duty

to avoid relocation, and it lamented that Mother would have to forgo the

employment opportunity in California. As stated above, the trial court did not

consider Mother’s job search efforts in its best interest analysis. As such, the

only way we could find harmless error, would be if we undertook the analysis

ourselves in the first instance. But that is not the function of the appellate

court. See C.M.K., 45 A.3d at 421 (“[W]ith regard to issues of credibility and

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weight of the evidence, this Court must defer to the trial judge[.]”); see also

In re A.J.R.-H., 188 A.3d 1157, 1175 (Pa. 2018) (“appellate courts should

refrain from assuming the role of a fact-finder in an attempt to sustain the

action of the court below.”); and see In re R.J.T., 9 A.3d 1179, 1190 (Pa.

2010) (“[appellate courts] are not in a position to make the close calls based

on fact-specific determinations.”).

       For this same reason, although the trial court erred here, we cannot

reverse the decision and allow Mother to relocate, because we do not know

the weight the trial court would assign to her job search efforts, in comparison

to the other factors the court must consider.

       Thus, we must remand for the trial court to consider Mother’s job search

efforts as part of its weighing of the relocation and custody factors presented

before that court, and determine whether Mother met her burden of proof to

allow the relocation.1

____________________________________________


1 For purposes of completeness, we note that we also cannot affirm the trial
court’s decision under the “right for any reason” doctrine. That doctrine “may
be applied by a reviewing court if the established facts support a legal
conclusion producing the same outcome. The doctrine may not be used to
affirm a decision when the appellate court must weigh evidence and engage
in fact finding or make credibility determination to reach a legal
conclusion.” A.J.R.-H., 188 A.3d at 1175-1176 (citation omitted) (emphasis
added).

Here, the trial court did not make “job-search” findings a part of its best
interests analysis. Moreover, the court did not address the integrity of
Mother’s motives, except to say they were not made in bad faith. Lastly, we
will not reweigh the relevant factors for the trial court in order to affirm its
decision.


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        To conclude, the trial court erred by imposing on Mother a burden of

proof not supported by the law. Mother only had the burden of establishing

that relocation was in the Children’s best interests and that her motives for

relocation had integrity; Mother did not have a burden to prevent relocation.

See 23 Pa.C.S.A. § 5337(i). Regrettably, our decision does not bear finality,

and we are keenly aware that childhood is fleeting, and Mother’s “once-in-a-

lifetime” employment opportunity may not last indefinitely. Nevertheless, we

are constrained to remand.

        The trial court must clarify: whether Mother established that relocation

will serve the best interests of the Children under the relevant relocation and

custody factors, while being mindful that Mother has the burden of

establishing the integrity of her motives to relocate, and that Father has the

burden of establishing the integrity of his motives to prevent relocation.2 We

relinquish jurisdiction to allow the trial court to address relocation in a manner

consistent with Section 5337(i), including additional proceedings if necessary.

Upon the entry of a new order, either party may appeal. See Pa.R.A.P. 341(a)

(“[A]n appeal may be taken as of right from any final order of a…trial court.”)

        Order vacated. Case remanded. Jurisdiction relinquished.




____________________________________________


2   In light of our disposition, we do not address Mother’s remaining issues.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2020




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