J-S64044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.L-J.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

S.H.

                         Appellant                 No. 1021 WDA 2014


                Appeal from the Order Entered May 27, 2014
                In the Court of Common Pleas of Erie County
                     Civil Division at No(s): 13006-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED OCTOBER 31, 2014

       Appellant, S.H. (“Mother”), appeals from the order entered in the Erie

County Court of Common Pleas, which denied her petition for relocation with

S.H. (“Child”), who is the child of Mother and Appellee, M.L-J. (“Father”).

We affirm.

       The trial court opinion sets forth the relevant facts and procedural

history of this appeal as follows.

         Pursuant to an agreement of the parties, the [c]ourt, on
         November 24, 2009, entered an [o]rder of [c]ourt granting
         Mother and Father shared legal and physical custody of
         [Child]. In accordance with the 2009 [o]rder, [Child]
         resided primarily with Mother while Father exercised
         custody one overnight each week, all day every Saturday
         and additional time on holidays. This is the arrangement
         the parties have followed since [Child] was just weeks old.
         Although Father has missed periods of custody, the parties
         have successfully worked together to switch days in order
         to allow Father consistent periods of custody. Father has
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        regularly exercised custody of [Child] at least twice per
        week since her birth.

        Mother, on December 24, 2013, married [Husband].
        [Husband] is in the Marine Corps, which he joined on June
        10, 2013. [Husband], who is from Erie, went to boot camp
        in South Carolina, was moved to North Carolina and then
        moved to Fort Leonard Wood in Missouri. In February or
        March of 2014, [Husband] was moved to Bolling Air Force
        Base in Washington, D.C. for three years.

        In the beginning of 2014, Mother served a [r]elocation
        [n]otice on Father indicating her intent to relocate with
        [Child] to Fort Belvoir, Virginia. The [r]elocation [n]otice
        listed as “reasons for relocation” “Husband enlisted in
        Marines and is stationed at Fort Belvoir, V.A. Will allow
        [Mother] and [Child] to live on base with husband and
        allow financial freedom and a stable routine for the family.”
        Father, on March 13, 2014, filed a [c]ounter [a]ffidavit
        [r]egarding [r]elocation indicating that he objected to the
        relocation. On March 19, 2014, Mother filed a [p]etition
        for [r]elocation requesting a hearing.

        [The c]ourt presided over a hearing in this matter on May
        7, 2014. At the conclusion of Mother’s testimony, it was
        clear that her testimony alone prevented her from meeting
        her burden of proving that relocation would serve [Child’s]
        best interest. In this regard, the [c]ourt met with counsel
        for both parties in chambers, explained why it was clear to
        the [c]ourt that Mother could not meet her burden, and
        gave counsel the option as to whether or not to proceed.
        After consulting with Mother, counsel informed the [c]ourt
        that it was Mother’s decision not to continue with the case.
        Accordingly, this [c]ourt issued its May 27, 2014 [o]rder
        denying Mother’s [r]equest for [r]elocation. Thereafter,
        Mother hired new counsel, who filed the present appeal on
        her behalf.

(Trial Court Opinion, filed July 8, 2014, at 1-2). On June 25, 2014, Mother

timely filed both a notice of appeal and a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925.


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      Mother raises the following question for our review:

         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION WHEN IT FAILED TO APPLY THE ANALYSIS
         REQUIRED FOR RELOCATION SET FORTH BY BOTH
         PENNSYLVANIA COURTS AND THE CHILD CUSTODY ACT
         BY FAILING TO SUFFICIENTLY DEVELOP THE RECORD
         WHEN IT DID NOT TAKE COMPLETE TESTIMONY FROM
         [MOTHER], NOR HEAR ANY TESTIMONY FROM EITHER
         [MOTHER’S] WITNESSES, [FATHER] OR [FATHER’S]
         WITNESSES PRIOR TO ITS ORDER DENYING [MOTHER’S]
         PETITION[?]

(Mother’s Brief at 2).

      Mother argues the trial court truncated the proceedings and precluded

the entirety of the testimony at the relocation hearing.     Mother avers the

court did not sufficiently develop the record or apply the analysis required

for relocation before denying her petition. Mother concludes she is entitled

to a new relocation hearing. We disagree.

      Initially, we observe:

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

         A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa.Super. 2010)

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           (citations and quotation marks omitted).

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013). Additionally,

           Our Legislature adopted a new Child Custody Act (“Act”),
           effective on January 24, 2011. See 23 Pa.C.S.A. §§ 5321–
           5340. The new Act applies to “disputes relating to child
           custody matters” filed after the effective date of the new
           law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 33 A.3d 73,
           76 (Pa.Super. 2011), we held that the Act applied to any
           proceeding, including a petition for relocation, initiated by
           a filing made after the effective date of the Act.

Id. Further, Section 5337 sets forth the procedures governing relocation as

follows:

           § 5337. Relocation

           (a) Applicability.—This section applies to any proposed
           relocation.

           (b)   General rule.—No relocation shall occur unless:

              (1) every individual who has custody rights to the child
              consents to the proposed relocation; or

              (2) the court approves the proposed relocation.

           (c)   Notice.—

              (1) The party proposing the relocation shall notify
              every other individual who has custody rights to the
              child.

              (2) Notice, sent by certified mail, return        receipt
              requested, shall be given no later than:

                 (i) the 60th day before the date of the proposed
                 relocation; or

                 (ii) the tenth day after the date that the individual
                 knows of the relocation, if:


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                     (A) the individual did not know and could not
                     reasonably have known of the relocation in
                     sufficient time to comply with the 60–day notice;
                     and

                     (B) it is not reasonably possible to delay the
                     date of relocation so as to comply with the 60–
                     day notice.

          (3) Except as provided by section 5336 (relating to
          access to records and information), the following
          information, if available, must be included with the
          notice of the proposed relocation:

              (i)      The address of the intended new residence.

              (ii)  The mailing address, if not the same as the
              address of the intended new residence.

              (iii) Names and ages of the individuals in the new
              residence, including individuals who intend to live in
              the new residence.

              (iv)  The home telephone number of the intended
              new residence, if available.

              (v)   The name of the new school district and
              school.

              (vi)     The date of the proposed relocation.

              (vii)    The reasons for the proposed relocation.

              (viii) A proposal for a revised custody schedule.

              (ix)  Any other information which the               party
              proposing the relocation deems appropriate.

              (x)    A   counter-affidavit as    provided     under
              subsection (d)(1) which can be used to object to the
              proposed relocation and the modification of a custody
              order.

              (xi)     A warning to the nonrelocating party that if the

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              nonrelocating party does not file with the court an
              objection to the proposed relocation within 30 days
              after receipt of the notice, that party shall be
              foreclosed from objecting to the relocation.

           (4) If any of the information set forth in paragraph (3)
           is not known when the notice is sent but is later made
           known to the party proposing the relocation, then that
           party shall promptly inform every individual who
           received notice under this subsection.

        (d)   Objection to proposed relocation.—

           (1) A party entitled to receive notice may file with the
           court an objection to the proposed relocation and seek
           a temporary or permanent order to prevent the
           relocation.   The nonrelocating party shall have the
           opportunity to indicate whether he objects to relocation
           or not and whether he objects to modification of the
           custody order or not. If the party objects to either
           relocation or modification of the custody order, a
           hearing shall be held as provided in subsection (g)(1).
           The objection shall be made by completing and
           returning to the court a counter-affidavit, which shall be
           verified subject to penalties under 18 Pa.C.S. § 4904
           (relating to unsworn falsification to authorities), in
           substantially the following form…

23 Pa.C.S.A. § 5337(a)–(d); C.M.K. v. K.E.M., 45 A.3d 417, 422-25

(Pa.Super. 2012). Regarding relocation factors:

        Chapter 53 of the Domestic Relations Act, which we will
        refer to as the Custody Act, requires that when making a
        custody award, “[t]he court shall delineate the reasons for
        its decision on the record in open court or in a written
        opinion or order.” 23 Pa.C.S.A. § 5323(d). This Court has
        previously interpreted this mandate as requiring a trial
        court to state the reasons for its custody decision prior to
        the filing of an appeal. M.P. v. M.P., 54 A.3d 950, 956
        (Pa.Super. 2012).

M.J.M. v. M.L.G., 63 A.3d 331, 335 (Pa.Super. 2013), appeal denied, 620


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Pa. 710, 68 A.3d 909 (2013).

     With respect to a custody order, Section 5328(a) provides:

        § 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 which party can better provide adequate physical
           safeguards and supervision of the child.

           (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.


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           (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); M.J.M., supra. Moreover,

        [T]he party proposing relocation…bears the burden of
        proving relocation will serve the children’s best interests.
        See 23 Pa.C.S.A. § 5337(i). Each party, however, has the
        burden of establishing “the integrity of that party’s motives
        in either seeking the relocation or seeking to prevent the
        relocation.” 23 Pa.C.S.A. 5337(i)(2).

S.J.S. v. M.J.S., 76 A.3d 541, 551 (Pa.Super. 2013).

     Further:

        “Failure to timely object to a basic and fundamental error…
        will result in waiver of that issue. On appeal, the Superior
        Court will not consider a claim which was not called to the
        trial court’s attention at a time when any error committed
        could have been corrected. The [principal] rationale
        underlying the waiver rule is that when an error is pointed
        out to the trial court, the court then has an opportunity to
        correct the error.” (citations omitted); Smith v. Smith,

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        637 A.2d 622, 626 ([Pa.Super.] 1993) (“Appellant’s failure
        to object to the court’s noncompliance with the procedural
        [requirements] constituted a waiver of his [issue on
        appeal]”).

M.O. v. J.T.R., 85 A.3d 1058, 1061 (Pa.Super. 2014).

     Instantly, the trial court reasoned as follows:

        Considering that Mother, after consulting with counsel,
        decided to discontinue the proceeding, Mother’s allegations
        of error are without merit. Specifically, Mother had an
        opportunity to proceed with her case, yet, without raising
        any objections to [the c]ourt, decided not to put any
        further evidence on the record. Mother [cannot] now fault
        the [c]ourt for her own decision. See [id.] The [c]ourt
        did not place its reasons on the record as the parties
        agreed not to continue with the case. Nevertheless, the
        following are the [c]ourt’s reasons for determining that
        Mother was unable to meet her burden of proving that
        relocation was in the best interest of the Child.

                                 *    *    *

        1. Child’s Relationship with the Parties and Other
        Significant Persons

        Mother’s testimony and evidence indicate [Child] has a
        good relationship with [Husband], who has been in
        [Child’s] life since she was approximately eighteen months
        old. It is clear, however, that [Child] also has a close and
        loving relationship with Mother, Father and many extended
        family members, all of whom, with the exception of
        [Husband], reside in the Erie area. [Child] is close to her
        maternal great-grandparents, her maternal grandmother
        and Mother’s cousin, all of whom have provided childcare
        for [Child] while Mother work[ed]. Along with Mother,
        [Child] even resided with Mother’s cousin for an extended
        period of time and currently resides with her maternal
        great-grandmother. Moreover, [Child] regularly spends
        time with Father, her paternal grandmother, including
        overnights, and her paternal aunt. Mother testified that
        [Child’s] relationship with Father, as well as her paternal



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       and maternal relatives is close and that they have been
       regularly involved in [Child’s] life since her birth.

       In that regard, Mother’s own evidence revealed that
       [Child] has many significant longstanding relationships in
       the Erie area which form her support network. Upon
       relocation, however, [Child] would have only [Husband]
       and Mother. While [Child’s] relationships with Mother and
       [Husband]     are    not   insignificant,  the   significant
       relationships that [Child] maintains in Erie, by far,
       outnumber the quality relationships that [Child] would
       have upon relocation. In other words, if relocated, [Child]
       would lose the ability to have close at hand the persistent
       support and routine contact which she has always known
       with a large number of very important people in her life.

       2. Age, Developmental Stage, Child’s Needs and
       Likely Impact that Relocation will have on [Child’s]
       Development

       Mother testified that [Child] is excited about and loves the
       house where she would live upon relocation. The [c]ourt
       can certainly understand that an almost five-year-old
       would be excited about a home which provides her with
       her own bedroom, particularly since she has been sharing
       a home and bedroom with extended family members.
       Nevertheless, [Child] would be leaving Erie, the only
       environment she has ever known, and all of her relatives,
       to begin a life in an unfamiliar environment with only
       Mother and [Husband]. Meanwhile, Mother admits that the
       new bonds which [Child] forms will be temporary as the
       family will be living on a military base, which is inherently
       temporary for each family in residence. Moreover, the
       move is temporary for [Child]. If relocation were allowed,
       it would only be for three years. In three years, it is
       Mother’s intention that the family return to Erie. In this
       regard, [Child] will be uprooted from the only environment
       she has ever known and her strong network of extended
       family to be placed in a new environment where she will
       make temporary friends only to be uprooted again.

       With regard to [Child’s] educational development, it is
       noteworthy that [Child] has not yet started her formal
       education. [Child] will start kindergarten in the fall of

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       2014. Although Mother indicated that the school [Child]
       would attend in the event of relocation is Janney
       Elementary, she did not provide any evidence to indicate
       how the intended school is any more conducive to [Child’s]
       educational development than any school [Child] would
       attend in the Erie area. Of even greater significance to the
       [c]ourt, [Child] would only attend Janney Elementary until
       second grade when Mother intends to return her to the
       Erie area.

       For these reasons, the [c]ourt believes that the inherent
       instability of the move is likely to have a negative impact
       on [Child’s] educational and emotional development.

       3. Feasibility of Preserving the Relationship between
       Nonrelocating parent and [Child]

       Mother proposed that, upon relocation, Father exercise
       three weeks of custody in the summer and every third
       weekend during the school year and that she would be
       flexible with a different arrangement.          The distance
       between Washington, D.C. and Erie is approximately 300
       miles or an estimated five and one-half hour drive. There
       are certainly arrangements that can be made to allow a
       relationship between Father and [Child]. The [c]ourt is
       concerned, however, that the distance and financial
       circumstances of the parties will cause Father and [Child’s]
       relationship to become more distant, rather than preserve
       the relationship that they developed and continue to form
       through the regular contact enjoyed during this young
       child’s formative years. Mother testified that Father has a
       good relationship with [Child], that he has been involved in
       [Child’s] life, and that he has continuously exercised
       custody of her twice each week since her birth. Although
       Mother testified that the time she proposes will actually
       give Father the same or more time with [Child], the
       frequency of time will be so significantly disrupted that the
       [c]ourt is concerned that the quality of the relationship
       with this young child will not be sufficiently maintained.

       Meanwhile, Mother reports that she needs to move
       because she is struggling financially and the move will
       lighten the burden. If Mother was struggling in Erie while
       she had an approximately $40,000 per year job and was

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       sharing living expenses with family, and she is moving to
       an area where she has no job, the [c]ourt can’t help but
       believe that finances are going to be a real issue with
       regard to transporting the Child back and forth frequently
       enough to allow Father and Child to truly preserve their
       relationship.

       In this regard, while it is certainly possible to establish an
       arrangement to allow contact between Father and [Child],
       the [c]ourt is concerned about the feasibility of an
       arrangement that will truly preserve this young child’s
       relationship with her Father.

       4. Conduct of Either Party to Promote or Thwart the
       Other Party’s Relationship with the Child

       There is not an established pattern of conduct by either
       party to promote or thwart the relationship of [Child] with
       the other party. To the contrary, it is clear that the parties
       are able to work together, even coordinating extra periods
       of custody for Father and his family and substituting days
       when a scheduled period of custody needs to be
       rescheduled. In this regard, the [c]ourt does not doubt
       that the parties are fully capable of working together
       regardless of the distance between their residences.

       5. Likelihood that Relocation will enhance Mother’s
       General Quality of Life

       It is clear that Mother’s primary reason for relocation is to
       be with her husband during the time that he will be
       stationed in Washington, D.C. If there was any other clear
       benefit, she would not be planning for this to be a
       temporary move with a return to Erie. Obviously, there is
       an emotional benefit to Mother from being able to live with
       her husband.        Moreover, there are clearly benefits
       associated with the family being able to live together in a
       rent-free residence where [Child] will have her own
       bedroom. Aside from these benefits, Mother testified that
       relocating will improve her situation financially because she
       will be residing in military provided housing and she would
       no longer even have to pay utilities. Mother believes that
       this will allow her to enroll [Child] in dance classes again,
       to refrain from working initially, which will provide the

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       benefit of giving her more time with [Child], and allow her
       to work on obtaining an advanced degree via online
       classes.

       The [c]ourt fails to see, however, how moving to
       Washington[, D.C.] will improve Mother’s financial
       situation. Neither Mother nor [Husband] have any credit
       card debt. Mother’s only bills at present are a car lease,
       car insurance and a cell phone bill. [Husband’s] expenses
       only include a $300 student loan payment and a cell phone
       bill. Mother does not have any housing expenses in Erie as
       she is currently residing with her grandmother and, prior
       to that, Mother’s cousin was living with her and helping
       pay the housing related bills.

       Until her resignation in March of 2014, Mother worked as a
       registered nurse for UPMC Hamot, an occupation that she
       held since September 11, 2012. She worked full time with
       hours alternating between day shift and night shift. She
       made $19.65 per hour, or approximately $40,000
       annually. Mother does not have a job upon relocation and
       has not seriously looked for employment.

       The [c]ourt fails to see how Mother will gain financial
       stability for herself and the family by taking on additional
       college debt and failing to obtain employment. This simply
       is not an improvement from her situation in Erie of no
       housing expenses (with only shared liability for such
       expenses prior to her present situation) and a $40,000
       annual salary which she would have maintained but for her
       rash decision to quit in order to move. Furthermore,
       Mother does not even know [Husband’s] income, indicating
       that she has not truly calculated the true costs of this
       “great financial stability” she believes the family gains
       through her quitting her job and moving.

       Moreover, Mother will be leaving behind a well-established
       family support network for temporary friendships which
       she is just beginning to establish.

       The [c]ourt in no way wishes to downplay the emotional
       benefit to Mother of being able to reside with her husband.
       It is, however, apparent that her desire to live with
       [Husband] has clouded her judgment with regard to the

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       reality of what exactly the move means for her and
       [Child].

       6. Likelihood that Relocation will enhance [Child’s]
       General Quality of Life

       Mother believes that [Child’s] life will be enhanced because
       Mother will be able to afford dance classes for [Child],
       [Child] will have her own bedroom and a fenced-in
       backyard, and Mother will be able to spend more time with
       [Child] because they will be more financially stable
       eliminating Mother’s need to work initially.

       As discussed above, the [c]ourt fails to see how the move
       is going to be a financial benefit. Mother believes that she
       won’t have to work initially and will only eventually need to
       return to work part-time. Furthermore, she plans to enroll
       in online classes to further her own education. Aside from
       the fact that Mother’s own testimony indicates that she
       shouldn’t be able to afford not to work or to enroll in
       college courses, the [c]ourt fails to see how Mother will be
       able to spend more time with [Child] while enrolled in a
       college program and working part-time as compared to
       having a full time job.

       Furthermore, although Mother indicates that she has done
       research about the area and the school system, there is no
       evidence to indicate that the move provides an enhanced
       educational opportunity for [Child] or any greater
       atmosphere than the one in which she lives. To the
       contrary, relocation would result in moving [Child] away
       from the only environment she has ever known and her
       well-established support network. Meanwhile, the contacts
       Mother has made with other military families for herself
       and [Child] are, as Mother admits, tentative considering
       the mobility of military families.

       Moreover, when Mother worked while living in Erie,
       [Child’s] relatives provided childcare whereas there is no
       indication of who will provide childcare in Washington, D.C.
       once Mother does obtain employment.

       In sum, the benefits to [Child] of taking dance class and
       having her own room are outweighed by the detriments.

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         Moreover, as discussed above, the [c]ourt simply does not
         believe that the financial benefits that Mother contends will
         inure from the move can possibly come to fruition.

         7. Reasons of Each Party for Seeking, or Opposing
         Relocation

         Mother’s actions cause the [c]ourt to hesitate with regard
         to her motives. Specifically, it is troubling that, prior to
         the custody relocation trial, Mother quit her job, signed
         over her lease, reneged on her agreement with Father not
         to mention moving to [Child], and moved the family’s large
         items to D.C. Nevertheless, considering the [parties’]
         ability to work together, as well as Mother’s testimony that
         she is not seeking to relocate in any attempt to take
         [Child] away from Father and his family, the [c]ourt
         concludes that [Mother] is merely anxious to begin her life
         with her new husband.

         With regard to Father, the [c]ourt did not find it necessary
         to question the integrity of his motives as Mother
         presented no evidence to indicate that he had ill will in his
         opposition and it was clear that Mother could not meet her
         burden of proving that relocation was in [Child’s] best
         interest.

(Trial Court Opinion at 3, 5-12).   In effect, the court considered the best

interest factors articulated in Section 5328(a) and M.J.M., supra. The court

found Mother could not meet her burden to establish relocation would serve

Child’s best interest.   Therefore, we see no reason to disturb the court’s

decision to deny Mother’s petition for relocation, particularly where Mother

chose to end the proceedings ahead of time. Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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