J-A12040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.E.W.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                    Appellee

                          v.

J.S.,

                    Appellant                     No. 3279 EDA 2015


                Appeal from the Order entered October 6, 2015,
             in the Court of Common Pleas of Montgomery County,
                     Civil Division at No(s): No. 2011-30890

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED AUGUST 24, 2016

        Appellant, J.S. (“Mother”), appeals from the order entered on October

6, 2015, in the Court of Common Pleas of Montgomery County by Judge Gail

Weilheimer, denying her petition for modification of the existing custody

order and her petition for relocation, with respect to Mother’s and Appellee’s,

M.E.W. (“Father”), children, H.A.W., (born in May of 2004), and K.A.W.,

(born in July 2006) (collectively “the Children”).1    After careful review, we

affirm.

        The trial court set forth the extensive procedural and factual history of

this case in its opinion accompanying the subject order, which the



* Former Justice specially assigned to the Superior Court.
1
  Father has two children from a previous marriage, T.W. and A.W. N.T.,
9/30/15, at 5. Mother also has two children from a previous marriage, E.C.
and W.C. N.T., 8/12/15, at 62.
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testimonial and documentary evidence supports.             As such, we adopt it

herein. See Trial Court Opinion, 11/25/15, at 1-3.

      On April 17, 2015, Mother filed a petition to relocate to the State of

Massachusetts with the Children. On April 2, 2015, Father filed a counter-

affidavit regarding the relocation. On August 12, 2015, and September 30,

2015, the trial court held hearings on Mother’s petition.       At the hearings,

Dr. Colin Broom, Chief Executive Officer of Nabriva Therapeutics; Pamela

King, head of business development for Hereditary Angioedema Association;

Mother; Karleen Novotny, an in-class aid and Library Assistant at Coventry

Christian School; P.C., a friend of Mother and Father; J.G., Father’s nanny;

A.H., Children’s maternal grandmother (“Maternal Grandmother”); and

Father testified. On October 6, 2015, the trial court denied Mother’s petition

to modify custody and request to relocate to the State of Massachusetts. If

Mother decided not to move to the State of Massachusetts, the order further

stated Mother and Father would continue to share legal and physical custody

of the Children.

      On October 29, 2015, Mother timely filed a notice of appeal and a

concise   statement   of   errors   complained   of   on    appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).         The trial

court filed a Rule 1925(a) opinion on November 25, 2015.

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

      1. Whether the trial court abused its discretion and committed an
         error of law when it misapplied the child custody and relocation

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         laws by using a “substantial change in circumstances” standard,
         reaching a manifestly unreasonable result that is not supported by
         competent evidence?

      2. Whether the trial court abused its discretion and committed an
         error of law when it failed to consider all custody factors and before
         deciding the issues of relocation?

      3. Whether the trial court abused its discretion and committed an
         error of law in denying Mother’s request to relocate with Children?

      4. Whether the trial court abused its discretion and committed an
         error of law when it failed to consider all of the evidence and
         contradictory testimony?2

Mother’s Brief at 6.

      Our scope and standard of review in custody matters are 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.

      With any child custody case, the paramount concern is the best
      interests of the child. This standard requires a case-by-case
      assessment of all the factors that may legitimately affect the
      physical, intellectual, moral and spiritual well-being of the child.




2
  In her brief, Mother’s last issue on appeal is combined with her third issue
on appeal. Therefore, we do not need to address separately Mother’s last
claim.
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M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013), quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011).

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

child.     The best-interest 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. Saintz v. Rinker, 902

A.2d 509, 512 (Pa.Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa.Super. 2004).

         Section 5337 applies to relocation requests, and provides as follows, in

relevant part:

         (h) Relocation factors.--In determining whether to grant a
         proposed relocation, the court shall consider the following
         factors, giving weighted consideration to those factors which
         affect the safety of the child:

               (1) The nature, quality, extent of involvement and duration
               of the child’s relationship with the party proposing to
               relocate and with the nonrelocating party, siblings and
               other significant persons in the child’s life.

               (2) The age, developmental stage, needs of the child and
               the likely impact the relocation will have on the child’s
               physical, educational and emotional development, taking
               into consideration any special needs of the child.

               (3) The feasibility of preserving the relationship between
               the nonrelocating party and the child through suitable
               custody arrangements, considering the logistics and
               financial circumstances of the parties.

               (4) The child’s preference, taking into consideration the
               age and maturity of the child.



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            (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).

      In addition, the trial court in this case was required to consider the

best interest factors set forth in section 5328, as follows:

      § 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


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       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.

       (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.


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          (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).

      As the party proposing relocation, Mother has the burden of proving

that relocation will serve Child’s best interest as set forth under Section

5337(h). See 23 Pa.C.S. § 5337(i)(1). Furthermore, “[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.”           23 Pa.C.S. §

5337(i)(2).

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

discretion when it misapplied the child custody and relocation laws by using

a “substantial change in circumstances” standard. Mother’s Brief at 11.     In

this case, the trial court correctly recognized “the standard for review in the

child custody matters is the ‘best interests and welfare of the children[,]’”

Trial Court Opinion, 11/25/16, at 6, and it applied that standard in the case

sub judice. Notably, Mother fails to indicate in her brief where in the record

the court’s alleged application of an inappropriate standard is manifest.

Therefore, the trial court did not abuse its discretion. See M.J.M., 63 A.3d

at 334.




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      In her second claim, Mother avers that the trial court abused its

discretion and committed an error of law when it failed to consider all child

custody factors and relocation factors before deciding the issue of relocation.

Mother’s Brief at 6. At the relocation hearing on September 30, 2015, the

trial court listed and discussed all section 5328(a) best interest factors and

section 5337(h) relocation factors.   See N.T., 9/30/15, at 137-149.      After

the hearing, the trial court provided a written decision in which it listed all

sixteen factors and analyzed those factors based on the evidence presented

by the parties.   See Trial Court Opinion, 11/25/15, at 8-16.       Therefore,

Mother’s claim is without merit.

      In Mother’s third question presented on appeal, she raises two

separate issues concerning both the 5328(a) best interest factors and

section 5337(h) relocation factors. Mother argues that the trial court abused

its discretion in denying Mother’s petition to relocate and failing to consider

all of the evidence and contradictory testimony. Mother’s Brief at 6. In her

brief, Mother argues the trial court’s finding that the parents’ have a history

of co-parenting effectively and that they are equally involved in academic

and extracurricular activities is not supported by the record.3     Id. at 12.

Mother also argues in her brief that the record does not support the trial

court’s findings as to section 5337(h)(1), the nature, quality, extent of


3
  We note that, although Mother does not provide citation to the relevant
statute, this factor is relevant to relocation, pursuant to 23 Pa.C.S.A. §
5328(a)(3).
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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; section 5337(h)(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; 5337(h)(4), the child’s preference, taking into

consideration the age and maturity of the child; and 5337(h)(8), the reasons

and motivation of each party for seeking or opposing the relocation. Id. at

16-23.

      As to section 5328(a)(3), Mother avers that “Father’s involvement in

the academic extracurricular activities of the children is ‘peripheral.’” Id. at

14.

      The trial court explained

      Mother and Father have a history of good co-parenting despite
      any personal issues that have occasionally arisen between them;
      their involvement in the children’s academic and extra-curricular
      life appears to be evenly split. Each parent has an equally
      demanding career and needs to use third parties to care for the
      [C]hildren. Accordingly, both parties provide for childcare when
      unavailable to directly supervise the [C]hildren during their
      custody period. With that, the [trial c]ourt concluded to allow
      Mother to relocate and modify custody would ultimately interrupt
      the parties’ ability to successfully co-parent[.]

Trial Court Opinion, 11/25/15, at 8.

      Mother’s issue on appeal seeks review of the trial court’s finding of fact

and credibility determinations.   Our standard of review does not permit this

Court to re-find facts, re-weigh evidence, or impeach the credibility

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determinations of the trial court.      We may only reject the trial court’s

conclusions if they involved an error of law or are unreasonable in light of

the sustainable findings of the trial court. See M.J.M., 63 A.3d at 334. We

find no abuse of discretion.

      In the second issue raised in Mother’s third question presented, Mother

argues that the trial court’s finding, as to section 5337(h)(1), is not

supported by the testimony. Specifically, Mother argues the trial court erred

in concluding, “the Children would continue having similar contact and

communication with half-siblings and extended family whether relocation

and modification were granted or denied.” Mother’s Brief at 16. Mother also

avers that the trial court erred, as to section 5337(h)(3), in concluding “the

proposed relocation would have a ‘substantial’ effect on the [C]hildren’s

relationship with Father.”     Mother’s Brief, at 18.   With regard to section

5337(h)(4), Mother argues that the trial court erred in not considering the

Children’s preferences. Mother’s Brief at 22. As to section 5337(h)(8), the

reasons and motivation of each party for seeking or opposing the relocation,

Mother contends that there was an “abundance of testimony” that showed

“any alternative to relocation would not be possible or feasible.”    Mother’s

Brief at 18.

      The trial court, applying section 5337(h)(1), found that “[the Children]

would continue having similar contact and communication with half-siblings

and extended family whether relocation and modification were granted or


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denied.” Trial Court Opinion, 11/25/15, at 9.    The trial court noted that the

Children’s half-siblings, with the exception of E.C., are “living outside of the

parties’ respective residences.”   Id.   Father’s children from his previous

marriage, A.W. and T.W., live in the State of Oklahoma and the State of

Texas, and the Children’s paternal grandparents live in the State of Idaho.

N.T., 9/30/15, at 5-6. Moreover, Mother’s children from her previous

marriage attend and will be attending colleges in Philadelphia, Pennsylvania

and Collegeville, Pennsylvania. N.T., 8/12/15, at 62. Maternal Grandmother

lives in Ontario, Canada. N.T., 9/30/15, at 116.

      As to section 5337(h)(3), the trial court found:

      [T]he proposed relocation is at least six (6) hours away and
      would have a substantial effect on the [C]hildren’s relationship
      with Father. This relocation would displace the 50/50 custody
      arrangement that has successfully been in place since the
      parties’ separation over three years ago. Further, it would be
      practically impossible for Father to continue his involvement, as
      it stands, in the [C]hildren’s lives if relocation were granted to
      Mother, regardless if the parties shared traveling time. The
      [C]hildren’s best interests are also not served through constant
      travel between their parents’ homes, either by air or road, as it
      would ultimately detract from their academics, extracurricular,
      recreation, and time with the respective custodial parent.

Trial Court Opinion, 11/25/15, at 10 (citations omitted).

      The trial court, applying section 5337(a)(4), found:

      I did not hear from the [C]hildren, and I did tell counsel at our
      pretrial conference that I would not permit the [C]hildren to
      testify regarding their preferences because this is not a decision
      for children to make, and I didn’t want them to feel that burden
      in any way; so that was intentionally excluded from the [trial
      c]ourt’s consideration.


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N.T., 9/30/15, at 141-42.

      As to section 5337(h)(8), the trial court stated,

      while Mother’s reason for relocation is in good faith and due to
      the business decisions of her employer, the ultimate detriment
      to the [C]hildren outweighed Mother’s motivations.            The
      [C]hildren and/or parties would be forced to travel resulting in
      significant lost time with Father and disintegration of his close
      relationship with the [C]hildren, established during the marriage
      and through the 50/50 custody arrangement.

Trial Court Opinion, 11/25/1, at 11 (citations omitted).         The trial court

further found evidence of an alternative to Mother’s relocation including:

      (i) Flexible work arrangements have existed and/or do exist for
      top employees in Mother’s field according to Dr. Colin Broom,
      witness for Mother.

      (ii) The [trial c]ourt found Mother is a top employee[.]

      (iii) Pam King, Head of Business Development for the HAE
      Association, described the long process of developing expertise
      in various fields of clinical drug research including the position
      Mother currently holds. Ms. King’s testimony also suggested, in
      her opinion, Shire would be motivated in retaining Mother
      because of her expertise and time within the company.

      (iv) Mother discussed already traveling to Massachusetts for
      work at the August 12, 2015 hearing, specifically mentioning
      Shire was “hot on [video teleconferencing] as well as
      teleconferences[.]”   Furthermore, she admitted she has not
      asked Shire for any exceptions for remote working, e.g.,
      telecommunication, as Shire would not give a decision until a
      final outcome in the present matter was reached.

      (v) Dr. Broom testified Mother could transfer to another
      company with similar title and/or job function, despite his belief
      it is more difficult in the Philadelphia region than other areas of
      the country.

      (vi) Although the [trial c]ourt found a financial benefit to Mother
      if relocation was granted, Mother clearly stated she is “not a

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      money person." Thus, the [trial c]ourt’s consideration of any of
      Mother’s financial motivations for relocating is given less weight
      in its analysis of factor (8).

      (vii) Finally, Mother portrayed a pattern of “five-year stints” in
      describing her work history in previous disease and drug
      research and early clinician experience. In other words, Mother
      has accepted new employment about every five years. This
      testimony suggested to the [trial c]ourt Mother will be able to
      find new employment, prevent the need for relocation, and/or
      has not diligently searched for other employment as an
      alternative to relocation.

Trial Court Opinion, 11/25/15, at 11-12 (citations omitted).

      Moreover, the trial court found that Father “demonstrated sound

financial reasoning for ultimately opposing relocation.” Id. at 13. Father is

a podiatrist and his practice is located in Newport, Pennsylvania.         N.T.,

9/30/15, at 7. When Mother expressed her initial need to move to Boston,

Massachusetts, Father traveled to Boston, Massachusetts to inquire what

would be involved in relocating his practice to Boston.    Id. at 43.   Father

also spoke to a friend who practices podiatry in the suburbs of Boston. Id.

Based on his inquires, Father concluded that moving his practice to Boston

“was not in [his] best interest financially.” Id. at 44. The trial court found

Father’s testimony to be credible, and that he “seriously considered

uprooting his practice to accommodate relocation despite his personal

preference.” Trial Court Opinion, 11/25/15, at 13.

      Ultimately, the trial court found:

      Mother was unable to demonstrate modification and relocation
      would be in the [C]hildren’s best interests, e.g., enhancement to
      their lives per the relevant law or feasibility of a new custody

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      arrangement to preserve the [C]hildren’s close relationship with
      Father. Alternatively, Mother failed to show benefits to the
      [C]hildren would outweigh the detriment of losing their close
      relationship with Father as it has always existed. The issue of
      modification arose solely from Mother’s desire to relocate and
      meet the needs of her employer. Mother has not convinced the
      [trial c]ourt, while relocation is clearly beneficial to her, it is in
      the children’s best interests.

Trial Court Opinion, 11/25/15, at 7. The trial court, in weighing the sum of

the factors relevant to both section 5328 and section 5337, did not abuse its

discretion in concluding that the Children’s best interests weigh in favor of

maintaining their current custody arrangement, and it did not abuse its

discretion in denying Mother’s request for relocation.

      After review of the trial court’s orders, opinion, and the certified

record, we conclude that the trial court’s findings are supported by

competent evidence in the record and its conclusions are reasonable in light

of the sustainable findings of the trial court. See M.J.M., 63 A.3d at 334.

As such, we discern no abuse of discretion in the trial court’s ultimate

conclusion.

      Accordingly, for the foregoing reasons, we affirm the trial court’s order

denying Mother’s petition to modify custody and Mother’s petition for

relocation, pursuant to 23 Pa.C.S.A. § 5337(h).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/24/2016




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