J-S25013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M.B.F., n/k/a M.B.B.                     :   IN THE SUPERIOR COURT
                                          :        OF PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 E.T.F.                                   :
                                          :   No. 294 MDA 2019
                    Appellant

              Appeal from the Order Entered January 22, 2019
              In the Court of Common Pleas of Dauphin County
                    Civil Division at No: 2018-CV-1060-CU

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                             FILED JULY 05, 2019

      Appellant, E.T.F. (“Father”), appeals from an order granting Appellee,

M.B.F. (“Mother”) the right to relocate to Wisconsin with the parties’ child. We

affirm.

      The trial court summarized the procedural history of this case as follows:

      [Mother and Father] were married in July 2012 and separated in
      September 2014, right around the birth of their only child
      together, BF (DOB 9/14). Mother initiated divorce and custody
      proceedings in Cumberland County in late 2014. The parties
      entered a stipulated custody agreement, adopted by the court
      November 20, 2014, under which terms they shared legal custody
      and Mother was granted physical custody four out of seven days
      per week to accommodate her work schedule as a registered
      nurse at a local hospital. Father had physical custody the
      remaining three days of the week. The parties divorced in March
      2015. In August 2017, Mother married MB (Stepfather), who was
      in a plastic surgery residency at a local hospital.

      In February 2018, the parties filed an uncontested petition to
      transfer the custody action to Dauphin County since both had
      moved to Harrisburg.      At the same time, Mother sought
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      modification of the existing custody agreement.           Following
      conciliation, the parties agreed to a custody order, entered by the
      Honorable Royce Morris on March 28, 2018, under which terms
      the parties maintained shared legal custody. Mother’s physical
      custody was altered slightly, granting her physical custody on an
      alternating weekly schedule consisting of five days the first week
      and three days the next. Father was granted physical custody the
      remaining time. The parties further agreed to alternating holidays
      and an equal number of vacation days. In October 2018, Mother
      filed a petition to modify custody and notice of proposed
      relocation.     Mother sought primary physical custody and
      permission to move with the Child to Wisconsin. Mother averred
      that Stepfather had been selected for an elite, one-year fellowship
      at a Milwaukee hospital commencing August 1, 2019 and that she
      expected to move with him to the suburb of Wauwatosa this
      summer. Mother suggested that Father have extended physical
      custody during the summer and school holidays. Father filed a
      counter-affidavit opposing relocation and seeking primary physical
      custody if Mother moved.

Trial Court Opinion, 3/11/19, at 1-2. On January 17, 2019, the trial court held

a hearing relating to Mother’s petition. The parties presented the following

evidence:

      Mother testified that she and Father separated during her
      pregnancy with their Child and that since that time, she and Father
      have co-parented the Child separately. According to Mother, as
      of the hearing date, she and Father had been sharing physical
      custody equally, on a 5-2, 2-5 schedule. The Child is currently
      4½ years old and has been attending a Harrisburg area pre-school
      three days per week for three hours per day. Mother currently
      works as an RN but stated that since she is pregnant with her and
      Stepfather’s first child, she does not plan to return to work.

      Mother believes she has acted more as the primary parent to the
      Child than has Father, noting that she arranges all of the Child’s
      medical appointments, school activities and play dates. Mother
      testified that currently she rarely works on days she has custody
      of the Child and that she and the Child are close and connected.
      She and the Child like to bake together, learn numbers and letters,
      sing, play outside, go to the zoo and take walks with the family
      dog. After her second child is born, Mother will be with her infant

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     and the Child full time.      Mother stated that the Child is
     “inseparable” from Stepfather and that the Child calls him “Daddy
     [Stepfather’s first name].”

     Mother agreed that ETF is a good Father and believes the Child
     needs his Father in his life. She testified that Father has been
     involved in the Child’s life including taking the Child to and from
     pre-school one day per week, coaching the Child’s T-ball team,
     attending bible school with the Child and taking the Child to the
     local community center. The Child refers to Father as “Daddy”
     and to Father’s fiancée as “Mommy [fiancée’s first name].”

     Mother testified that she and Stepfather do not plan to stay in
     Wisconsin beyond the one-year fellowship and that after it is
     completed, they hope to move back closer to the Harrisburg area.
     According to Mother, the fellowship will afford Stepfather
     significantly greater job opportunities for future employment. She
     anticipates that following their one-year stay in Wisconsin,
     Stepfather would be able to find a position within close driving
     distance to Central Pennsylvania and that she foresees they will
     remain on the East Coast.

     In anticipation of the move to Wisconsin, Mother and Stepfather
     will rent a three-bedroom house in Wauwatosa, close to
     Stepfather’s hospital, the local elementary school, zoo and a
     playground. Mother anticipates that the Child would be enrolled
     in “junior” kindergarten at the local school beginning in September
     2019, which is five half days a week. Mother noted that her
     current school district (Central Dauphin) does not offer a similar
     pre-K program.

     Assuming the Child is permitted to move to Wisconsin, Mother said
     she would work to keep the Child’s relationship strong with Father
     and Father’s one-year-old child, OF. Mother plans to maintain this
     contact through daily FaceTime connections and phone calls.
     Mother noted that under the current custody schedule, the non-
     custodial parent stays in contact with the Child using these
     methods. Mother was additionally willing to keep in contact with
     Father through texts, photos and otherwise. If the Child lives in
     Wisconsin, Mother would encourage Father and his parents to visit
     the Child there. Mother also stated that she has the financial
     means to travel back to the Harrisburg area with the Child every
     couple of months, primarily by plane. Mother indicated there are


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     direct flights from Chicago to Harrisburg and that Chicago is not
     too far from her proposed Wisconsin residence.

     Mother’s relatives live in the Harrisburg area including her mother,
     two grandmothers, a sister and two aunts. Mother and the Child
     are particularly close with her paternal grandmother and aunts
     and they have visited frequently.           Her mother has early
     Alzheimer’s, so she and the Child do not see her much. Mother
     has no relatives in Wisconsin though one of her husband’s
     colleagues from the same hospital has also been selected to work
     at the same Milwaukee hospital. She and Stepfather are good
     friends with him and his wife, who have two children. This couple
     would be available to provide child care if needed.

     Stepfather testified that the fellowship will “triple” the number of
     positions available to him upon the conclusion thereof, including
     in this area and in larger cities. He admitted that it is impossible
     to tell what the job market will be in the summer of 2020 but that
     he intends to do what is best for the Child and his family.

     Father testified that he is a mental health professional who has
     been employed for over seven years as a family-based therapist.
     He works in his Carlisle office one day per week and the remainder
     of his time involves flexible scheduling for in-home therapy in the
     Dauphin County area. Father lives with his fiancée, JA, who is a
     pre-school teacher, along with their one-year-old son, OF. They
     live in a three-bedroom home with a fenced-in backyard. Father
     and JA are planning to marry within the year, after this relocation
     issue is settled. JA has known the Child since he was three months
     old. Father’s parents live in Central Pennsylvania and his father
     has helped provide childcare; Father has no relatives or
     connections to Wisconsin. His fiancée’s relatives all live in this
     area as well.

     Father testified that MBB is an excellent mother. If awarded
     primary physical custody, Father would keep the Child in his
     current pre-school and would agree that the Child spend summers
     and holidays in Wisconsin with Mother. In addition, he would plan
     for the Child to start half-day kindergarten in the Central Dauphin
     School District in the fall of 2020. He would additionally work to
     make sure Mother had regular contact with the Child through
     FaceTime, text messaging and picture messaging.




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      Father believed that allowing relocation would disrupt stability in
      the Child’s life noting he has firm attachments to the community
      and his and Mother’s relatives, including grandparents, aunts,
      cousins, as well as to JA’s relatives. A relocation would disrupt
      Father’s time with the Child including T-ball, soccer and their
      breakfasts out at diners.

      Father testified that he has been very involved in the Child’s life
      including coaching his T-ball team, weekly church and youth group
      meetings and attending a local community center for weekly rock
      climbing and swimming classes. Father testified the Child plays
      with a number of other children in the neighborhood where Father
      lives.

Trial Court Opinion, 3/11/19, at 3-5.

      On January 22, 2019, the trial court entered an order granting Mother

permission to relocate to Wisconsin. The court also issued a separate custody

order/parenting plan that same day which addressed physical custody

arrangements for the Child between June 14, 2019 and July 14, 2020,

corresponding to Stepfather’s one-year fellowship in Wisconsin. The order,

whose contents Mother proposed, directed the parties to exercise custody

under the existing March 28, 2018 custody schedule until June 14, 2019. The

court granted Father primary physical custody for the summer, from June 14,

2019 through August 15, 2019.      Commencing August 15, 2019, the court

granted   Mother   primary   physical    custody   through   the   remainder   of

Stepfather’s fellowship after which time the custody schedule would be subject

to modification depending upon Stepfather’s new employment, likely closer to

the Harrisburg area. From August 15, 2019 through July 14, 2020, the court

granted Father specific periods of physical custody each month in Harrisburg,


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including three-day weekends in both September and October, six days over

Thanksgiving, a nine-day period over Christmas, a three-day weekend in

February 2020, school breaks from March 25 to 29, 2020 and April 19 to 23,

2020, and following the probable end of the Child’s pre-school year, from June

14 to July 14, 2020. The court also granted Father the right to visit the Child

anytime in Wisconsin with an option to stay in an extra bedroom at Mother’s

home to reduce his costs.

      Father timely appealed the January 22, 2019 relocation order to this

Court. Both Father and the trial court complied with Pa.R.A.P. 1925.

      In his appellate brief, Father raises four issues in the Statement of

Questions Presented:

      1. Whether the Honorable Trial Court erred and committed an
      abuse of discretion in applying and weighing the ten (10)
      relocation factors pursuant to 23 Pa.C.S.A. § 5337(h)?

      2. Whether the Honorable Trial Court erred and committed an
      abuse of discretion in granting [Mother’s] Motion for Relocation
      because it was unreasonable to grant relocation in light of the
      factual record before the Court?

      3. Whether the Honorable Trial Court erred when it made specific
      factual findings about relocation not supported by the testimonial
      record?

      4. Whether the Honorable Trial Court erred in finding that
      [Mother] met her burden of establishing that relocation is in the
      [Child’s] best interest?

Father’s Brief at 5. The argument section of Father’s brief, however, has only

one argument: the trial court abused its discretion in determining that




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relocation of the Child was proper under 23 Pa.C.S.A. § 5337(h). We limit our

review to this question.

      Our standard of review in child custody and relocation cases is as

follows:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion. We must accept findings
      of the trial court that are supported by competent evidence of
      record, as our role does not include making independent factual
      determinations. In addition, with regard to issues of credibility
      and weight of the evidence, we must defer to the presiding trial
      judge who viewed and assessed the witnesses first-hand.
      However, we are not bound by the trial court’s deductions or
      inferences from its factual findings. Ultimately, the test is whether
      the trial court’s conclusions are unreasonable as shown by the
      evidence of record. We may reject the conclusions of the trial
      court only if they involve an error of law, or are unreasonable in
      light of the sustainable findings of the trial court.

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

      In determining whether to grant a proposed relocation, the trial court

must consider all ten relocation factors listed in 23 Pa.C.S.A. § 5337(h) and

all sixteen custody factors listed in 23 Pa.C.S.A. § 5328(a). A.M.S. v. M.R.C.,

70 A.3d 830, 836 (Pa. Super. 2013). The record reflects that the trial court

carefully considered each factor in both statutes in reaching its decision.

      In determining the issue of relocation under Section 5337(h),

      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.


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      (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.A. § 5337(h).     As the proponent of relocation, Mother has “the

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

child as shown under the factors set forth in [Section 5337(h)].” 23 Pa.C.S.A.

§ 5337(i).    Furthermore, “each party has the burden of establishing the




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integrity of that party’s motives in either seeking the relocation or seeking to

prevent the relocation.” Id.

      With regard to factor (1), the nature of the Child’s relationship with the

parties, the trial court stated at the conclusion of the relocation hearing: “Both

[parties] have been certainly involved with the Child during the Child’s life,

and the nature and quality of that has been somewhat similar. Although, it

sounds like Mom has been more of the primary parent, although the time was

divided and Dad has been an active father indeed.” Trial Ct. Op. at 7 (citing

N.T., 1/17/19, at 58). Father argues that it was unreasonable for the court

to find that Mother was the primary parent since it acknowledged that Father

has been an active parent. Mother responds that is reasonable for a parent

such as Father to be an active parent without being the primary parent. We

agree with Mother. The record supports the trial court’s conclusion that while

Father was an active parent, Mother was even more active and thus is the

primary parent.

      Factor (2) requires the court to address the Child’s age, developmental

stage, needs and the likely impact that relocation will have on the Child. The

trial court stated with regard to Factor (2): “The Child is only [four] and a half,

so the impact on educational issues is not present as it is when a child is older

and school age and social relationships are much more critical, as well as

maintaining academics if the school is a particularly good one. So that really

is not a factor.” Id. Father contends that the court ignored the Child’s strong


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ties to two young boys who live in houses adjacent to Father’s. Father’s Brief

at 16. We acknowledge that relocation presents challenges to any child, and

that this Child may experience sadness by having to move to the Midwest and

sever (at least in the short run) bonds he has formed with other children near

Father’s house. Nevertheless, we agree with the trial court that relocation will

not cause as great an impact on the Child as it would if he were older, when

his social network undoubtedly will broaden and his bonds with other children

will become much deeper.            Moreover, Mother promised to mitigate any

adverse effects of relocation by maintaining the Child’s relationship with

Father and Father’s one-year-old child through daily FaceTime connections

and phone calls.       The court has further reduced any negative effects of

relocation by granting Father primary custody during vacation periods in the

school year and for one month after the conclusion of the school year (June

14, 2020 to July 14, 2020). The court also permitted Father to visit the Child

in Wisconsin during the school year.1 Moreover, Mother presented evidence

that the Child will benefit from relocation because the local school in Wisconsin

offers a pre-K program while her current school district in Dauphin County

does not.    For these reasons, the trial court acted within its discretion by

resolving Factor (2) in favor of Mother.




____________________________________________


1 Moreover, the court granted primary custody to Father during the summer
of 2019 until the Child leaves for Wisconsin.

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      Factor (3) requires the court to address how best to preserve the

relationship between the nonrelocating party and the child through suitable

custody arrangements. Father argues that “Child’s relationship with his father

will be materially and significantly changed should Child only see his Father

over a few holidays and one month in the summer.” Father’s Brief at 17. As

stated above, the court granted Father primary custody for two months in the

summer of 2019 (June 14, 2019 to August 15, 2019), a series of monthly

visits during the upcoming school year, and for one month following the

conclusion of the upcoming school year (June 14, 2020 to July 14, 2020). The

court also permitted Father to visit the Child in Wisconsin during the school

year. This custody schedule, the court reasoned, will

      preserve the Child’s relationship with Father, allowing him to see
      the Child almost every month over that period with the financial
      costs of custodial visits being substantially borne by Mother. Over
      the 13-month duration, even with the relocation and revision in
      custody schedule, Father will have physical custody for 128 days,
      or 32% of the time, which does not even include additional time
      Father may exercise completely at his option by visiting the Child
      in Wisconsin.

Trial Court Opinion, 3/11/19, at 11. We conclude that the trial court acted

within its discretion by creating a custody schedule that meets the Child’s best

interests and adequately calibrates Father’s and Mother’s custodial rights.

      The trial court concluded that factor (4), the Child’s preference, and

factor (5), the parties’ patterns of promoting or thwarting one another’s access

to the Child, were not at issue here. Father does not dispute this conclusion.

Therefore, we need not address these factors further.

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      Factors (6) and (7), which we address together, require the court to

address whether relocation will enhance the general quality of life for the party

seeking relocation (Mother) and for the Child.           The trial court found that

relocation will enhance Mother’s quality of life, and, in turn, the Child’s quality

of life, “based on the increased financial income quite predictable for a doctor

who completes a fellowship as opposed to a mere residency.” Id. at 7. This

finding was within the trial court’s discretion.         Even if, as Father argues,

Stepfather’s   salary   in   Wisconsin     will   not   exceed   Father’s   salary   in

Pennsylvania, it is reasonable to infer that Stepfather’s position in Wisconsin

will give rise to substantially more lucrative employment in the future. Such

long-term benefits will enhance both Mother’s and the Child’s quality of life.

Father complains that the court only evaluated the financial consequences of

relocation but without considering the Child’s emotional needs or educational

opportunities in Pennsylvania. We disagree. Other sections of the court’s

opinion demonstrate that it painstakingly evaluated the Child’s emotional

needs and educational opportunities. The court determined that under these

challenging but relatively short-term circumstances, the Child’s emotional

needs were best served by relocating with his primary parent, Mother, and

loving stepfather to Wisconsin. Moreover, as discussed above, the Child will

benefit from the opportunity to attend pre-K every weekday.

      Turning to factor (8), each party’s motives for seeking or opposing

relocation, the court determined that neither party had improper motives. The


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record supports this finding. Both parties clearly love the Child but simply

disagree whether relocation is in his best interests. The trial court’s order is

a thoughtful and rational disposition to this challenging problem.

        Factor (9) requires the court to address any drug or alcohol problems.

The court found no drug or alcohol problems that affect this case, and the

record supports this conclusion.

        Factor (10) requires the court to address any other factor affecting the

Child’s best interests. The court used Factor (10) as a vehicle to analyze the

Section 5328 factors.2         We need not recount the trial court’s analysis


____________________________________________


2   Section 5328 provides in relevant part:

        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) (relating to
        consideration of child abuse and involvement with protective
        services).

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




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____________________________________________


       (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.

       (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).

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exhaustively.   Suffice it to say that (1) most of the Section 5328 factors

overlap with the Section 5337 factors; (2) the Section 5328 factors that do

not overlap (whether a party has abused the child, whether there is drug or

alcohol abuse by a party or a person in the party’s household, the mental and

physical health of a party or a person in the party’s household) are not

relevant to this case; and (3) the court carefully studied the Section 5328

factors and determined that the parties should share custody during the

relocation period in the manner described above. For the reasons provided

on pages 8-11 of its opinion, we hold that the trial court properly exercised its

discretion.   We direct that a copy of that opinion be filed along with this

memorandum.

      For these reasons, the trial court properly exercised its discretion in

granting Mother’s motion for relocation and crafting its relocation order in the

manner described above.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2019


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