J-A09023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.G.                                                  IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

A.Q.

                            Appellant                      No. 1728 MDA 2015


               Appeal from the Order Entered September 8, 2015
                In the Court of Common Pleas of Centre County
                       Civil Division at No(s): 2010-3887

BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                                   FILED MAY 10, 2016

        A.Q. (“Mother”) appeals from an order denying her request to relocate

with the parties’ eleven-year old daughter (“Daughter”) from Centre County

to Palmerton, Pennsylvania, 2½ hours from Centre County. We affirm.

        Mother and D.G. (“Father”) are Daughter’s natural parents. Daughter

was born in 2004 during the parties’ marriage. In 2010, Mother and Father

separated, and they later divorced.            Mother and Father presently live ten

minutes apart in Centre County.           Mother has primary physical custody of

Daughter, and Father has physical custody every other weekend and every

Wednesday evening.

        In early 2015, Mother filed a petition to relocate with Daughter to

Palmerton, about 2½ hours away from Father’s residence. Father also filed
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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a petition for modification of custody.          On September 8, 2015, following

evidentiary hearings, the trial court denied Mother’s petition. On October 5,

2015 Mother filed a notice of appeal together with a Pa.R.A.P. 1925(b)

statement of matters complained of on appeal.

       On October 6, 2015, the court denied Father’s petition for modification

of custody.1 Father did not appeal this order.

       On November 10, 2015, thirty-six days after Mother’s appeal, the trial

court filed a Pa.R.A.P. 1925(a) opinion.

       Mother raises two issues in this children’s fast track appeal:

       1. Based upon the evidence and testimony at [the] hearing, and
       the factors which must be considered in [23] Pa.C.S. [§]
       5337(h), did the trial court abuse its discretion by failing [to]
       properly consider the law and eight statutory factors regarding
       relocation?

       2. Based upon the evidence and testimony at [the] hearing, did
       the trial court abuse its discretion when it concluded that a
       relocation was not in the minor child’s best interest?
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1
  Arguably, Mother’s appeal was premature because she filed it before the
trial court decided Father’s petition for modification of custody. See G.B. v.
M.M.B., 670 A.2d 714, 720 & n.11 (Pa.Super.1996) (child custody order will
be considered “final order” and appealable only if it is entered after court has
completed its hearings on merits and is intended by court to constitute
complete resolution of custody claims pending between parties; by requiring
a complete resolution of pending claims, we refer to “a resolution of the core
substantive issues underlying the parties’ custody dispute”). Assuming that
Mother’s appeal was premature, the order denying Father’s petition
perfected her appeal. See Pa.R.A.P. 905(a)(5) (“a notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof”).



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Brief For Appellant, at 4.     Both questions concern essentially the same

subject, so we review them together.

      We review decisions on petitions to relocate for abuse of discretion.

E.D. v. M.P., 33 A.3d 73, 76 (Pa.Super.2011). In determining whether to

grant a proposed relocation, the court must consider each of the ten factors

listed in 23 Pa.C.S. § 5337(h), “giving weighted consideration to those

factors which affect the safety of the child.” Id. We hold that the trial court

carefully considered each section 5337(h) factor, and that its decision to

deny Mother’s petition was a proper exercise of its discretion.

      We review the court’s analysis of each section 5337(h) factor below:

      1. Section 5337(h)(1) requires examination of “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.”   The trial court made the following

findings.   Both Mother and Father are very involved with Daughter’s life.

Mother and Father married in 2002. Daughter was born in 2004. Mother

and Father separated in 2010.       Mother has primary physical custody of

Daughter, and Father has physical custody every other weekend and every

Wednesday evening.      Mother and Father live about ten minutes apart in

Centre County.    Father is remarried to Hope Goncalves, who testified that

she has a good relationship with Daughter, and that they do various

activities together.   Goncalves is not currently working due to migraine

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headaches.      Mother is engaged to Paula Hahn, who lives in Palmerton,

Pennsylvania, about 2½ hours away from Father’s residence, and who

cannot leave Palmerton due to a family-owned business, a personal care

facility. Hahn testified that she has a good relationship with Daughter, and

that they do various activities together.        Father’s parents live nearby in

Centre County, are involved in Daughter’s life and want to remain involved.

Mother’s sister lives in Harrisburg and visits Daughter and Mother 10-12

times every year.

       Mother claims that the trial court merely made “generalizations” about

each party’s relationship with Daughter, and she argues that her “constant

presence” with Daughter and role as primary caregiver entitles her to extra

consideration. Mother also insists that the court may have “forgotten” facts 2

because it issued its Pa.R.A.P. 1925 opinion more than 30 days after

Mother’s notice of appeal.

       The record supports the trial court’s findings. We are not convinced by

Mother’s accusation that the trial court forgot certain facts, because Mother

fails to demonstrate how these details would have affected the trial court’s

analysis.



____________________________________________


2
  These facts are: (1) Father’s son from a prior marriage, Alex, only sees
Daughter 1-2 times each month, and (2) Daughter’s paternal grandmother
only sees Daughter twice monthly.



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      Mother complained vigorously in her brief and at oral argument that

the trial court’s analysis was flawed because the court filed its opinion six

days after expiration of the thirty-day period prescribed under Pa.R.A.P.

1925(a)(2)(ii). See id. (in children’s fast track appeal, “upon receipt of the

notice of appeal and the concise statement of errors complained of on appeal

… the judge who entered the order giving rise to the notice of appeal, if the

reasons for the order do not already appear of record, shall within 30 days

file of record at least a brief opinion of the reasons for the order, or for the

rulings or other errors complained of, which may, but need not, refer to the

transcript of the proceedings”). This minor departure from the Rules does

not entitle Mother to relief. The Rules of Appellate Procedure provide:

      (a) Liberal construction and modification of rules. These
      rules shall be liberally construed to secure the just, speedy and
      inexpensive determination of every matter to which they are
      applicable. In the interest of expediting decision, or for other
      good cause shown, an appellate court may, except as otherwise
      provided in Subdivision (b) of this rule, disregard the
      requirements or provisions of any of these rules in a particular
      case on application of a party or on its own motion and may
      order proceedings in accordance with its direction.

      (b) Enlargement of time. An appellate court for good cause
      shown may upon application enlarge the time prescribed by
      these rules or by its order for doing any act, or may permit an
      act to be done after the expiration of such time, but the court
      may not enlarge the time for filing a notice of appeal, a petition
      for allowance of appeal, a petition for permission to appeal, or a
      petition for review.

Pa.R.A.P. 105 (emphasis added). Mother cannot demonstrate any prejudice

from the trial court’s filing of its opinion six days after the Rule



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1925(a)(2)(ii) deadline. And because the trial court has a crowded docket

(as do most, if not all, courts in this Commonwealth), good cause exists for

filing the opinion six days late. Pursuant to Pa.R.A.P. 105, we will disregard

the court’s noncompliance with Rule 1925(a)(2)(ii).

      2.   Section   5337(h)(2)    requires   examination    of   “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.”   The court found

that Daughter is very bright, does well in school, has friends and interests

(music). She is generally healthy and has no special needs, but her school

attendance is not impressive due to thirty absences, late arrivals and early

dismissals. Although she is in private school (Friends School), Mother and

Father cannot afford the tuition.      Father claims Mother has irrational

obsessions about Daughter which causes the absences and demands medical

treatment for Daughter’s minor issues (perceived insect infestation of skin).

The court was “concerned” about Mother’s hyper-attentiveness to medical

issues. Mother wants Daughter to attend Quaker school in Palmerton which

would cost $15,000.00, although financial aid may be available.

      The record supports the trial court’s findings. Mother argues that the

court merely made generalized statements about Daughter’s education,

overemphasized State College’s “great academic presence”, and ignored

Daughter’s ability to adapt to a new educational environment in Palmerton.


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Mother insists that the court failed to discuss the “likely impact” relocation

would have on Daughter and attributes this omission to the fact that the

court filed its opinion more than thirty days after the notice of appeal. In

effect, Mother asks this Court to substitute her judgment in place of the trial

court’s judgment. We decline the invitation; the trial court was in the best

position to assess the evidence and the witnesses, and since the record

supports its findings, we will not disturb them.3

       3.    Section 5337(h)(3) requires analysis of “The feasibility of

preserving the relationship between the non-relocating party and the child

through suitable custody arrangements, considering the logistics and

financial circumstances of the parties.”         The court wrote that relocation

would make it “infeasible” to preserve Daughter’s relationship with Father,

her paternal grandparents and Alex, because frequent trips would strain the

parties’ financial circumstances.        Mother complains that the court ignored

her proposal for Father to have a majority of holiday and summer time with

Daughter. Again, the record supports the trial court’s findings.

       4.   Section 5337(h)(4) requires analysis of “the child’s preference,

taking into consideration the age and maturity of the child.”          Daughter

testified that she wants to move to Palmerton and attend Quaker school.

The court found her mature for her age and stated it considered her
____________________________________________


3
  As for Mother’s complaint that the Pa.R.A.P. 1925 opinion was tardy, we
reject this argument for the reasons given on pages 5-6 above.



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preferences along with the other factors.        Mother does not object to the

court’s treatment of this criterion.

       5.   Section 5337(h)(5) requires analysis of “whether there is an

established pattern of conduct of either party to promote or thwart the

relationship of the child and the other party.” The court wrote that neither

party is attempting to thwart the other party’s relationship with Daughter,

although the parties disagree about Daughter’s health issues. 4        Mother

argues that the court did not consider this issue carefully because “so many

months have gone by since the trial.” We conclude that the record supports

the court’s findings.

       6. Section 5337(h)(6) requires analysis of “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.”     Mother claims that moving to Palmerton will save money in

school tuition and other bills and will provide her with employment

opportunities.     Father also noted that Mother had two other relationships

since their divorce and lived in a different house each year.

       The court found that Mother’s motivation is to be with Paula Hahn. We

conclude that the record supports the court’s findings.

____________________________________________


4
  Father testified that Mother is overly protective. Mother testified that she
is afraid to seek treatment for Daughter because Father will think she is
overreacting.



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      7. Section 5337(h)(7) requires analysis of “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.” The court found

that relocation would not enhance Daughter’s quality of life, because she

would have to attend a new school with a longer commute (over forty

minutes daily) and without other relatives or friends nearby. Mother claims

that this arrangement will save money and benefit Daughter by giving her a

Quaker education. The record supports the court’s findings.

      8.     Section 5337(h)(8) requires analysis of “the reasons and

motivation of each party for seeking or opposing the relocation.”      The court

determined that Mother’s motivation is to be with Paula Hahn, and that

Father opposed relocation because Daughter would be 2½ hours away. The

record supports the court’s findings.

      9.    Section 5337(h)(9) requires analysis of “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.”

The court determined that there was no evidence of abuse.            The record

supports the court’s findings.

      10.    Section 5337(h)(10) requires analysis of “any other factor

affecting the best interest of the child.” The court did not mention any other

factor. Nor does the record indicate the existence of any other factor.

      Following its review of all section 5337(h) factors, the court concluded:


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      After hearing the evidence summarized above, this Court
      concluded that relocation is not in [Daughter]’s best interest.
      Mother will be reliant on Ms. Hahn for her home and
      employment. The relationship is relatively new, they are not yet
      married, and should it not work out, Mother has few resources in
      Palmerton. Mother admitted she has no back-up plan if the
      relationship with Ms. Hahn does not work out but does not feel
      she needs one. Father has a stable home and employment in
      State College. There has already been some recent instability in
      [Daughter]’s life in switching schools and homes. She attended
      State College Friends School, switched to the Delta Program,
      returned to State College Friends School, and is now at Centre
      Learning Community Charter School. This Court feels that given
      the propensity of missing school, it is in the best interest of
      [Daughter] that she live near her Father to allow him to have
      active input into her medical care and school attendance. Mother
      has also lived in several houses in State College and moves with
      frequency. This Court is concerned about the transition in
      moving to a new area, with a new family, and attending a new
      school along with all of the other major changes that accompany
      relocation. It was also very important to this Court that
      [Daughter] has a network of family and friends in State College,
      if the relocation were permitted; this Court does not feel these
      relationships could be adequately maintained given the distance
      to Palmerton. This Court recognizes that Mother seeks to further
      her relationship with Ms. Hahn and recognizes that the home and
      farm in Palmerton would be an idyllic, pastoral environment.
      However, preserving [Daughter]’s relationships in State College
      and active involvement of Father into her school and medical
      issues are of primary importance to [Daughter’s] best interest.

Pa.R.A.P. 1925 Opinion, at 8-9. This passage reflects the trial court’s careful

consideration of all relevant factors in its decision to deny Mother’s motion

for relocation. Based on the court’s persuasive reasoning, we conclude that

it properly exercised its discretion in denying Mother’s petition.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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