J-A07026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.L.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    A.N.                                       :
                                               :
                       Appellant               :   No. 1393 WDA 2016

                        Appeal from the Order August 18, 2016
                  In the Court of Common Pleas of Allegheny County
                       Family Court at No: FD-09-009023-005


BEFORE:         OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                FILED JUNE 05, 2017

           A.N. (“Father”) appeals from the order entered August 18, 2016, in the

Court of Common Pleas of Allegheny County, which denied the petition to

contest relocation filed by J.L. (“Mother”), but granted Mother’s petition for

special relief, and awarded her legal custody of the parties’ son, A.N.

(“Child”), with respect to education decisions.         After careful review, we

affirm.

           We summarize the relevant factual and procedural history of this

matter as follows.       Child was born in June 2009.     The record reveals that

Mother initially sought to have Child adopted, and placed Child with a private

adoption agency.        Father did not consent to Child’s adoption, and custody


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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proceedings ensued.        At the start of the instant proceedings, the parties

remained subject to an order entered August 21, 2015, which awarded

shared legal and physical custody of Child.           However, the order provided

that Father would have primary legal custody of Child “with respect to school

selection.” Order, 8/21/15, at ¶ 2. The order further provided that Father

“shall seek Mother’s input and keep Mother informed as it relates to

decisions affecting school selection.” Id.

       On August 3, 2016, Mother filed a petition to contest relocation and

petition for special relief.       In her petitions, Mother averred that Father

planned    to   relocate    from    Kennedy      Township,   Allegheny   County,   to

Coraopolis, Allegheny County.1            Petition to Contest Relocation and for

Special Relief – Interim Order, 8/3/16, at ¶ 7. Mother averred that Father’s

previous home was in the Montour School District, where Child attended

kindergarten and first grade. Id. at ¶ 7, 16, 18-19. Mother averred that

Father’s new home was in the Cornell School District, and that Father

planned to enroll Child in Cornell. Id. at ¶ 7, 14, 16. Mother averred that

Father did not seek her input regarding this relocation, and that a change in

school districts from Montour to Cornell would be contrary to Child’s best
____________________________________________


1
  Despite Mother’s averment that Father was planning to move, it appears
that Father moved the day before Mother filed her petitions. See Petition to
Contest Relocation and for Special Relief – Interim Order, 8/3/16, at Exhibit
B (letter from Father indicating that he would be moving on August 2,
2016). At very least, Father had already moved by the time of the custody
hearing on August 9, 2016.



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interest, because Montour is superior academically to Cornell. Id. at 10, 14-

16. Mother further averred that Child should attend school in the North Hills

School District, where she resides, because North Hills also is superior

academically to Cornell. Id. at 15-16. Mother requested that the trial court

enter an order “requiring Father to comply with the procedural provisions of

23 Pa. C.S.A. § 5337 prior to his relocation with the minor child[,]” and

awarding her interim legal custody of Child with respect to school selection,

so that Child could be enrolled in North Hills. Petition to Contest Relocation

and for Special Relief – Interim Order, 8/3/16, at 2, 5, ¶ 23 (unpaginated).

       The trial court held a hearing to address Mother’s petitions on August

9, 2016. Following the hearing, on August 19, 2016, the court entered an

order denying Mother’s petition to contest relocation, but granting Mother’s

petition for special relief and awarding Mother legal custody of Child with

respect to education decisions.         Father timely filed a notice of appeal on

September 19, 2016, along with a concise statement of errors complained of

on appeal.2

____________________________________________


2
  Father had thirty days to appeal the custody order, meaning that his notice
of appeal would normally be due by September 18, 2016. See Pa.R.A.P.
903(a) (“Except as otherwise prescribed by this rule, the notice of appeal
. . . shall be filed within 30 days after the entry of the order from which the
appeal is taken.”). However, because September 18, 2016, was a Sunday,
Father’s notice of appeal was timely filed on September 19, 2016. See 1
Pa.C.S.A. § 1908 (“Whenever the last day of any such period shall fall on
Saturday or Sunday, . . . such day shall be omitted from the computation.”).




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       Father now raises the following issues for our review, which we have

reordered for ease of disposition.

       I. The trial court committed abuse of discretion in its application
       of 23 Pa.C.S.A. § 5328(a)(4).

       II. The trial court committed abuse of discretion in its application
       of 23 Pa.C.S.A. § 5328(a)(6).

       [III.] The trial court erred in finding there was sufficient evidence
       presented at trial to establish the decrease in Father’s legal
       custody would best serve the needs and welfare of the child.

       [IV.] The trial court committed abuse of discretion in
       determining that a relocation occurred and that addressing
       Mother’s petition to contest relocation was legally appropriate.

Father’s Brief at 6-10 (unnecessary capitalization omitted).3, 4

       We consider these issues mindful of our well-settled standard of

review.

       In reviewing a custody order, our scope is of the broadest type
       and our standard is abuse of discretion.       We must accept
       findings of the trial court that are supported by competent
       evidence of record, as our role does not include making
       independent factual determinations. In addition, with regard to
____________________________________________


3
   We note with disapproval that Father failed to include a statement of
questions involved in his brief. See Pa.R.A.P. 2111(a) (providing that an
appellant’s brief must include a statement of questions involved). The
issues quoted above are taken from the argument section of Father’s brief.
4
  Mother argues that this appeal should be dismissed due to Father’s failure
to comply with the Rules of Appellate Procedure. Mother’s Brief at 11, 28.
While we agree that Father’s brief violates the Rules in several respects, we
do not find that these violations are substantial enough to warrant dismissal.
See Pa.R.A.P. 2101 (providing that an appeal may be dismissed if an
appellant’s brief contains substantial defects). We caution Father and his
counsel that they should strive to comply fully with the Rules in any future
appeals.



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     issues of credibility and weight of the evidence, we must defer to
     the presiding trial judge who viewed and assessed the witnesses
     first-hand. However, we are not bound by the trial court’s
     deductions or inferences from its factual findings. Ultimately,
     the test is whether the trial court’s conclusions are unreasonable
     as shown by the evidence of record.            We may reject the
     conclusions of the trial court only if they involve an error of law,
     or are unreasonable in light of the sustainable findings of the
     trial court.

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

     “When a trial court orders a form of custody, the best interest of the

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

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a).

     (a) Factors.--In ordering any form of custody, the court shall
     determine the best interest of the child by considering all
     relevant factors, giving weighted consideration to those factors
     which affect the safety of the child, including the following:

           (1) Which party is more likely to encourage and
           permit frequent and continuing contact between the
           child and another party.

           (2) The present and past abuse committed by a
           party or member of the party’s household, whether
           there is a continued risk of harm to the child or an
           abused party and which party can better provide
           adequate physical safeguards and supervision of the
           child.

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

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

           (4) The need for stability and continuity in the child’s
           education, family life and community life.

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           (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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      Trial courts must consider an additional ten factors when considering a

parent’s request to relocate. See 23 Pa.C.S.A. § 5337(h). “Relocation” is

defined 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.

      Instantly, in its opinion accompanying the order on appeal, the trial

court found that Father did not “relocate” as that term is defined in Section

5322. Trial Court Opinion, 8/19/16, at 9. The court explained that Father’s

move did not significantly impair Mother’s ability to exercise her custody

rights, because the parties’ custody exchange location remains the same,

and because Child’s new school would actually be closer to Mother’s

residence than Child’s previous school. Id. The court also discussed each of

the Section 5328(a) factors. The court found that Sections 5328(a)(1) and

(10) weigh in favor of Mother, while Section 5328(a)(6) weighs in favor of

Father.   Id. at 3-8.   The court found that the remaining factors either

weighed in favor of both parties, or did not weigh in favor of either party. In

concluding that Mother should be awarded primary legal custody of Child

with respect to education decisions, the court emphasized that Mother made

an effort to research what school would be best for Child, and presented

evidence demonstrating that North Hills is superior academically to Cornell.

Id. at 7. The court further emphasized that Father showed less interest in

Child’s education, and apparently made little effort to conduct similar

research. Id.

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      In his first issue on appeal, Father argues that the trial court abused

its discretion by concluding that Section 5328(a)(4) weighs equally in favor

of both parties. Father’s Brief at 6-7. Father contends that he and his wife

“were the only parents the minor child has known since birth[,]” and that he

has “provided the only stability in the minor child’s life.” Id.

      The trial court found as follows with respect to Section 5328(a)(4), in

relevant part.

             [Child] attended Kindergarten and 1st grade at Forest
      Grove Elementary School in the Montour School District which
      was Father’s home district. Given Father’s move to the Cornell
      School District, and Mother’s continuing residence in the North
      Hills School District, a change of schools and school districts is
      unavoidable for [Child] this Fall. This disruption in [Child’s]
      school life is solely attributable to Father, who chose to purchase
      a home outside the Montour School District, and to do so without
      prior notice to Mother.

             The parties testified that [Child] will already know a
      handful of students in the 2nd grade classes at both West View
      Elementary, where Mother favors enrolling him, and at Cornell
      Elementary School, which is favored by Father. Mother sought
      to emphasize that her family has resided in the North Hills
      School District for decades. Mother attended school there and
      thinks highly of its programs. Mother testified that she has
      encouraged [Child’s] participation in community sports and
      activities, creating ties that would be reinforced by his
      enrollment in West View Elementary School.

             By contrast, Father has resided in four different school
      districts in recent years, although most of the moves were
      before [Child] reached mandatory school age. Father testified
      that, now that he has purchased a house, he plans to stay there
      “forever.” Father testified that many children who participate in
      [Child’s] dance class and soccer league also attend Cornell
      Elementary, and that this familiarity will ease [Child’s] transition.

                                      ***


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J-A07026-17


      . . . . The [c]ourt finds this factor favors both parties equally.

Trial Court Opinion, 8/19/16, at 4-5.

      Our review of the record belies Father’s claim that he provides more

stability for Child than Mother. The record reveals that Mother has had at

least shared physical custody of Child since 2012, and even exercised

primary physical custody of Child for about a month in 2014, due to Father’s

“DUI’s [sic] and some arrests.” N.T., 8/9/16, at 8, 20; see also Order of

Court: Supervised Custody, 4/17/14.        In addition, as stressed by the trial

court, Father has moved repeatedly during Child’s lifetime. N.T., 8/9/16, at

9. Father’s most recent move was a source of significant instability in Child’s

life, as it resulted in Child having to leave his previous school. We discern

no abuse of discretion by the court in concluding that Section 5328(a)(4)

weighs equally in favor of both parties.

      Father’s second issue is that the trial court abused its discretion by

awarding Mother legal custody of Child with respect to education decisions,

despite its conclusion that Section 5328(a)(6) weighs in his favor. Father’s

Brief at 7-8. Father emphasizes that Child is close to his paternal half-sister

C., and that allowing Mother to enroll Child in the North Hills School District

would separate the two children. Id. at 8.

      The trial court addressed Section 5328(a)(6) as follows.

            In [the Honorable Kathleen R.] Mulligan’s 2015 Opinion,
      she wrote that “[Child’s] relationship with his siblings,
      particularly [C.], is critical in the decision-making as to the
      appropriate school for [Child] to attend.” At the time, Mother
      was pressing to transfer [Child] from the Montour School District

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J-A07026-17


      to the North Hills School District, where Mother desired [Child] to
      start 1st grade at West View Elementary School.

             At a hearing before Judge Mulligan on June 23, 2015,
      extensive testimony was taken regarding the two School
      Districts, including testimony on academic programs and
      extracurricular activities. Mother had originally enrolled [Child]
      in the North Hills School District for Kindergarten, but withdrew
      him to accommodate Father’s desire that [Child] attend
      Kindergarten in the Montour School District. Judge Mulligan
      wrote:

            While giving Mother credit for [her] reasonableness,
            it does not change the fact that the court finds that it
            is in [Child’s] best interest to continue in the school
            that he has been in and [to] attend school with his
            sibling [C.]

            In the last year’s custody litigation, Joseph Greenberg,
      Ph.D., prepared a psychological report on this case. While it did
      not specifically address the issue of [Child] and [C.] attending
      school together, the report stated a concern that were Mother to
      receive primary physical custody of [Child] “this would result in
      [Child] having significantly less contact with [C.]”

           Given Father’s move out of the Montour School District, a
      change in school is unavoidable for [Child]. The question is
      whether he [will] attend 2nd grade in Mother’s District, at West
      View Elementary, or in Father’s District, at Cornell Elementary,
      where [C.] will be a student in the class behind him.

             Mother remains convinced that the school in her home
      district has more to offer [Child] than does the Cornell School
      District. Nonetheless, given the prospect of [Child] having more
      contact with [C.] if he attends school in Father’s District, the
      [c]ourt finds this factor weighs in Father’s favor.

Trial Court Opinion, 8/19/16, at 5-6.

      We conclude that the trial court did not abuse its discretion. While the

court found that Section 3528(a)(6) weighs in favor of Father, this was only

one of the factors that it was required to consider when reaching its decision

in this case.   The court was free to weigh this factor as it saw fit, and to


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J-A07026-17



conclude that other factors outweigh the benefit of having Child and C.

attend the same school. This is especially true where, as here, Child and C.

attend two different grades. N.T., 8/9/16, at 77, 83, 162. Mother testified

during the custody hearing that Child rarely sees C. while at school, “except

for after school while waiting for pick-up[.]”     Id. at 76, 79.     Similarly,

Father’s wife, H.N., testified that while at school Child and C. see each other

“through the halls, sometimes at recess and after school waiting to be

picked up.” Id. a 111. When asked about the importance of having Child

and C. attend the same school, Father did not testify that Child and C. see

each other frequently while at school, but instead emphasized the positive

relationship they have while at home. Id. at 163. Thus, it is unlikely that

enrolling Child at a different school will cause significant harm to his

relationship with C.

       In his third issue on appeal, Father argues that the trial court erred by

concluding that Mother presented sufficient evidence during the custody

hearing to be awarded legal custody of Child with respect to education

decisions.5 Father’s Brief at 10-14.
____________________________________________


5
  As part of his third and fourth issues, Father alleges that the trial court
reached its decision as a result of gender bias. Father waived any claim of
gender bias by failing to include it in his concise statement of errors
complained of on appeal. Krebs v. United Refining Co. of Pa., 893 A.2d
776, 797 (Pa. Super. 2006) (citations omitted) (“[A]ny issue not raised in a
statement of matters complained of on appeal is deemed waived.”).
Nonetheless, we stress that our review of the record has not uncovered a
shred of evidence that the court in this matter acted out of bias.



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      In its opinion, the trial court elaborated on this decision while

discussing Section 5328(a)(10), which relates to which party is more likely

to attend to the daily physical, emotional, developmental, educational, and

special needs of the child. The [c]ourt found as follows.

            Where the parties are deadlocked over where a child
      should go to school, the [c]ourt finds it helpful to examine each
      party’s efforts to learn about the options available for the child.
      The [c]ourt also considers the care exercised by a party in
      gathering information tailored to the child’s interests and needs.
      With this approach, the [c]ourt seeks not to identify a particular
      school for the child; rather, it seeks to identify the parent who
      would be more likely to reevaluate any decision if it proved
      flawed in practice, and to change course if he or she deemed it
      in the child’s best interest.

            Mother entered into evidence four exhibits in support of
      her position that the North Hills School District, including West
      View Elementary School, offers a superior education to that
      available in the Cornell School District. She testified that, based
      on statistics from the Pennsylvania Department of Education and
      the Pennsylvania System of School Assessment, Cornell
      Elementary substantially underperforms in every subject, at
      every grade level tested when compared to West View
      Elementary. Mother’s exhibits show that while the Montour and
      North Hills School Districts are relatively comparable in
      performance, North Hills ranks exponentially higher than Cornell
      based on the average of recent district-wide standardized test
      scores.

             Mother collected information from publicly available
      sources, as well as by speaking with staff in both the North Hills
      and Cornell School Districts. She testified that her research of
      the Cornell School District was limited somewhat because the
      District’s website was under construction. Of particular interest
      to Mother was that West View Elementary offered instrumental
      and vocal music.

           Father and his wife appear to have done less research than
      Mother about [] [Child’s] school options.      Father was not
      concerned at Mother’s evidence that the Cornell School District


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      lags far behind North Hills in test scores, stating that many
      people came from nothing and made something of themselves.
      Father testified that he hopes [Child] will take classes to develop
      his musical talents. However, on cross-examination, Father
      conceded that he does not know if Cornell Elementary offers
      instrumental music.

             Mother entered into evidence the attendance report from
      the Montour School District’s Forest Grove Elementary, where
      [Child] attended 1st grade last year[.] The exhibit indicated that
      [Child] was occasionally tardy when in Father’s custody. Mother
      testified that despite the fact that she lived 25 minutes away
      from the school, [Child] was consistently on time when in her
      custody.

            The [c]ourt finds that this factor favors Mother.

Trial Court Opinion, 8/19/16, at 7-8.

      Our review of the record again supports the trial court’s findings.

During the custody hearing, Mother testified that she would like Child to

attend the North Hills School District due to its high academic rankings, and

due to the wide variety of extracurricular activities available to Child there.

N.T., 8/9/16, at 19-20, 31-32.     Mother also emphasized that she herself

attended North Hills, and that she has friends and family who live in the

district and whose children attend school there as well. Id. at 20.

      Concerning academic rankings, Mother presented the trial court with a

collection of Pennsylvania System of School Assessment rankings for 2016

and 2015. Id. at 38-39. Mother testified that North Hills ranked nineteenth

in the state in 2016, and twenty-fourth in the state in 2015. Id. at 39. In

contrast, Cornell ranked ninety-first in the state in 2016 and ninetieth in the

state in 2015.   Id.   Concerning specific subjects, Mother testified that a


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greater percentage of third graders tested as advanced or proficient in math

and language arts at North Hills than at Cornell. Id. at 43. For example,

21.3 percent of third graders tested as advanced for language arts at North

Hills, while only 9.3 percent tested as advanced at Cornell. Id.

      In contrast, Father presented little, if any, testimony that having Child

attend Cornell would be in his best interest academically. When asked what

research he conducted regarding Cornell, Father testified that his wife

“spoke with other mothers,” and that he did a Google search. Id. at 157-

58. Father explained, “I don’t think it matters what school district you go to,

I just believe that it’s the -- it’s the child and it’s the individual.” Id. at 116.

When asked whether he believed that academic rankings “should be

important in this case[,]” Father replied that he did not. Id. at 137. Father

explained this position by stating, “there are plenty of people in this world

who came from nothing and made themselves into something.” Id.

      Thus, the record confirms that Child’s best interest will be served by

awarding legal custody with respect to education decisions to Mother.

Mother’s testimony reveals that she conducted thorough research into which

school district would provide Child with the best opportunity for academic

success, and that she is committed to providing Child with a quality

education.    Father’s testimony reveals that he did not conduct similar

research, and that he was less focused upon insuring that the educational

program at the school district was a good match for Child.            Under these


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circumstances, it was not an abuse of discretion for the trial court to

conclude that Mother, rather than Father, should be making education

decisions on Child’s behalf.

        Finally, Father’s fourth issue is that the trial court abused its discretion

by concluding “that a relocation occurred, and that addressing Mother’s

petition to contest relocation was legally appropriate.” Father’s Brief at 8-

10. Father first suggests that the court abused its discretion because it “did

not permit the child to relocate[.]” Id. at 8-9. Father then argues that his

move was not a “relocation” as that term is defined in Section 5322. Id. at

9-10.

        Father’s fourth issue fails.   As discussed above, the trial court found

that Father did not “relocate” pursuant to Section 5322.               The record

supports this decision, as Father’s new home is a relatively short distance

from his previous home, and his move does not appear to have impaired

Mother’s custody rights in any way.

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

discretion, and we affirm the August 19, 2016 order denying Mother’s

petition to contest relocation, but granting her petition for special relief and

awarding her legal custody of Child with respect to education decisions.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017




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