J. A10041/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

M.J.,                                     :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                         Appellant        :
                                          :
                    v.                    :         No. 3177 EDA 2016
                                          :
S.G.B.                                    :


                   Appeal from the Order, September 9, 2016,
                in the Court of Common Pleas of Monroe County
               Civil Division at Nos. 1832 CV 2014, 260 DR 2014


BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JUNE 14, 2017

        M.J. (“Father”) appeals from the September 9, 2016 order entered in

the Court of Common Pleas of Monroe County permitting S.G.B. (“Mother”)

to relocate with the parties’ minor son, A.G.J. (“Child”), from Monroe

County,     Pennsylvania,    to   Havertown    Township,    Delaware    County,

Pennsylvania. The order also awarded shared legal custody to the parties,

primary physical custody during the school year to Mother, and primary

physical custody during the summer to Father.         After careful review, we

affirm.

        The record reflects that Child was born to the parties out of wedlock in

March 2009. At the time of Child’s birth, Mother and Father lived together,

but then separated in 2010. Since their separation, Mother and Father have

equally shared physical custody of Child, having initially “created a 50-50 on
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paper.” (Notes of testimony, 8/26/16 at 8.) Thereafter, on June 18, 2014,

Mother and Father entered into a custody stipulation for shared legal and

physical custody of Child.     The trial court approved the parties’ custody

stipulation by order of the same date. (Order of court, 6/18/14.)

      The trial court set forth the subsequent procedural history as follows:

                  On May 2, 2016, Mother filed an Affidavit for
            Relocation (“Relocation”) seeking primary physical
            custody of [Child]. After Mother filed her Relocation,
            Father filed a Counter-Affidavit opposing the
            relocation and requesting Modification. We held an
            evidentiary hearing on August 26, 2016.            On
            August 29, 2016, we issued an Order and a
            subsequent Opinion on September 9, 20[1]6,
            granting Mother’s request to relocate to Havertown
            Twp.      Father filed a Notice of Appeal on
            September 27, 2016. Father filed his Appeal as a
            Children’s Fast Track Appeal and included his Concise
            Statement of Errors Complained of on Appeal –
            Pa.R.A.P. 1925(a)(2).

Trial court opinion, 10/7/16 at 1. The record further reflects that the trial

court filed its Rule 1925(a) opinion on October 7, 2016.

      On appeal, Father raises the following issues:

            [1.]   Did the trial court commit an error of law
                   and/or abuse its discretion when denying
                   Father’s petition for primary physical custody?

            [2.]   Did the trial court commit an error of law
                   and/or abuse its discretion when it granted
                   Mother’s relocation to Havertown?

            [3.]   Did the trial court commit an error of law
                   and/or abuse its discretion when it failed to
                   consider evidence contrary to relocation?

Father’s brief at 13 (capitalization omitted).


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      Under the Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321-5340,

our standard of review in custody 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) (citation omitted).

      Moreover, we reiterate that

            [t]he discretion that a trial court employs in custody
            matters should be accorded the utmost respect,
            given the special nature of the proceeding and the
            lasting impact the result will have on the lives of the
            parties concerned. Indeed, the knowledge gained by
            a trial court in observing witnesses in a custody
            proceeding cannot adequately be imparted to an
            appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).

      With respect to an abuse of discretion, it is well settled that

            [a]n abuse of discretion is not merely an error of
            judgment; if, in reaching a conclusion, the court
            overrides or misapplies the law, or the judgment
            exercised is shown by the record to be either
            manifestly unreasonable or the product of partiality,
            prejudice, bias or ill will, discretion has been abused.


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Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super. 2007) (quotation

marks omitted).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child. 23 Pa.C.S.A. §§ 5328, 5338. Section 5323

of the Act provides for the following types of custody awards:

           (1)    Shared physical custody.

           (2)    Primary physical custody.

           (3)    Partial physical custody.

           (4)    Sole physical custody.

           (5)    Supervised physical custody.

           (6)    Shared legal custody.

           (7)    Sole legal custody.

23 Pa.C.S.A. § 5323(a)(1)-(7).

      Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order when it serves the best interests of the child.

23 Pa.C.S.A. § 5338.    Section 5328(a) sets forth the best-interest factors

that the trial court must consider when determining custody and provides as

follows:

           § 5328.     Factors to consider when awarding
           custody

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


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               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)(1) and (2)
                          (relating to consideration of
                          child abuse and involvement
                          with protective services).

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

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

               (5)     The availability of extended family.

               (6)     The child’s sibling relationships.

               (7)     The well-reasoned preference of
                       the child, based on the child’s
                       maturity and judgment.

               (8)     The attempts of a parent to turn
                       the child against the other parent,
                       except in cases of domestic
                       violence where reasonable safety
                       measures are necessary to protect
                       the child from harm.


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               (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.




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23 Pa.C.S.A. § 5328(a)(1-16). Trial courts are required to consider “[a]ll of

the factors listed in section 5328(a) . . . when entering a custody order.”

J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original).

      Where a request for relocation of a child along with a parent is

involved, the Act requires the trial court to consider the following ten

relocation factors:

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

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

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

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




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                  (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). “Section 5337(h) mandates that the trial court shall

consider all of the factors listed therein, giving weighted consideration to

those factors affecting the safety of the child.”   E.D. v. M.P., 33 A.3d 73,

81-82 (Pa.Super. 2011). Additionally, “[w]hen a custody dispute involves a


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request by a party to relocate, we have explained ‘there is no black letter

formula that easily resolves relocation disputes; rather, custody disputes are

delicate issues that must be handled on a case-by-case basis.’” C.M.K. v.

K.E.M., 45 A.3d 417, 421 (Pa.Super. 2012) (citation omitted).

      We have further explained that:

            Section 5323(d) provides that a trial 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).          Additionally, “section
            5323(d) requires the trial court to set forth its
            mandatory assessment of the sixteen [Section
            5328(a) custody] factors prior to the deadline by
            which a litigant must file a notice of appeal.” C.B. v.
            J.B., 2013 PA Super 92, 65 A.3d 946, 955
            (Pa.Super. 2013), appeal denied, 620 Pa. 727, 70
            A.3d 808 (Pa. 2013). . . .

            In expressing the reasons for its decision, “there is
            no required amount of detail for the trial court’s
            explanation; all that is required is that the
            enumerated factors are considered and that the
            custody decision is based on those considerations.”
            M.J.M. v. M.L.G., 2013 PA Super 40, 63 A.3d 331,
            336 (Pa.Super. 2013), appeal denied, [620 Pa.
            710], 68 A.3d 909 (2013). A court’s explanation of
            reasons for its decision, which adequately addresses
            the relevant factors, complies with Section 5323(d).
            Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa.Super. 2014) (brackets in original).

      Similarly, with regard to relocation, we have concluded that:

            sections 5323(d) and 5328 require the trial court to
            set forth its ratio decidendi at or near the time it
            issues its decision in a custody proceeding. We have
            held that, because the best interests of the child are
            the paramount concern of any custody case, the trial
            court must address the sixteen best interest factors


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            of section 5328(a) and the ten relocation factors of
            section 5337(h). B.K.M. v. J.A.M., 50 A.3d 168,
            172-75 (Pa.Super. 2012) (finding the trial court
            erred in failing to consider all section 5328(a) and
            section 5337(h) factors).       Therefore, by logical
            necessity, today we emphasize that our holding in
            C.B. (i.e., that section 5323(d) requires the trial
            court to delineate its reasoning at or near the time of
            its decision) extends to cases that involve both
            custody and relocation pursuant to section 5337.

A.M.S., 70 A.3d at 835.

      Additionally,   with   regard   to   relocation,   we   have    held   that

“[s]ection 5337(h) mandates that the trial court shall consider all of the

factors listed therein, giving weighted consideration to those factors affecting

the safety of the child.”      A.M.S., 70 A.3d at 836 (citations omitted;

emphasis in original).

      Here, with respect to the Section 5328 factors, the trial court

determined that factors 1, 3, 4, 5, 9, 10, and 12 were neutral and favored

both Mother and Father equally.       (Trial court opinion, 9/9/16 at 5.)    The

court further determined that factors 2, 6, 7, 8, 13, 14, 15, and 16 were not

applicable. (Id.) With respect to factor 11, which considers the proximity of

the residences of the parties, the trial court determined that this factor

favored Father only because Mother decided to relocate. (Id.)

      The trial court then proceeded to consider the relocation factors under

Section 5337(h) and found as follows:

            First, we consider the nature, quality, involvement
            and duration of the relationship [Child] has with
            Father. At [the] hearing, Father testified that he has


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          a close relationship with [Child]. In the mornings he
          gets [Child] off to school after breakfast. Although
          Father is not Catholic, he regularly attends mass
          with [Child]. Father stated that Mother is the “lead
          dog” and sometimes she forgets that he is there.
          Nonetheless, Father expressed that Mother is a
          wonderful mom, however, he worries that she takes
          on too much.

                 Mother testified that she has an excellent
          relationship with [Child]. Mother has established a
          routine for [Child] including chores and rules. She
          has set aside a night for family games and she is
          involved with [Child’s] education and homework.
          Mother cooks and bathes [Child] and she includes
          [Child] in the daily responsibilities around the house.
          Mother has become recently engaged to [M.K.],
          however, she is careful not to confuse the role [M.K.]
          plays with that of [Child’s] Father. [M.K.] lives near
          Havertown Twp., and Mother and [M.K.] have
          purchased a home but the title is in [M.K.’s name]
          alone.    They plan to marry in 2017.           We are
          concerned that Mother and [M.K.] are not yet
          married and that Mother’s name is not on the deed.
          Mother is currently enrolled at Drexel to complete a
          Masters in Art Therapy. Mother indicated that she
          has exhausted all online courses and now her
          educational goals require her to attend classes in
          person. In Monroe County, Mother cared for her sick
          mother, who died in February 2015. Mother also
          cares for her now adult brother and father, both of
          whom have Asperger’s.           Mother’s father is a
          registered sex offender and cannot be alone with
          [Child], so he is not a resource for Mother or [Child].
          Mother indicated that her father will be moving into
          an apartment in the Havertown Twp. area in the
          near future. Mother believes that Father should be
          involved in [Child’s] education as much as she is and
          she stated that Father is a good dad to [Child].

                In addition, there was testimony from [M.K.],
          [R.J.] and [B.J.], Father’s mother and father[,
          respectively,] about the support they will give in
          caring for [Child]. [M.K.] has a good relationship


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          with [Child] and he indicated that his job will allow
          him to work from home. He is pursuing a master’s
          degree in software engineering and his schedule will
          not conflict with Mother’s schedule at Drexel. [R.J.]
          testified that he is an avid hunter and he does
          outdoor things with [Child].      He stated that he
          normally sees [Child] twice a week when he is in
          Father’s custody. [B.J.] also testified. She has a
          flexible work schedule which will allow her to assist
          in child care for [Child]. She is concerned that she
          will see [Child] less if he relocates to Havertown
          Twp.

                In weighing the factors set forth in § 5337(h),
          we believe that both parents have exhibited excellent
          involvement in [Child’s] life. We are confident that
          both Mother and Father will remain excellent role
          models and positive influences.

                 We next consider [Child’s] age, developmental
          stage, needs and likely impact the relocation will
          have on his physical, educational and [emotional]
          development. [Child] appeared before this Court
          and he exhibits the enthusiasm and energy of a
          healthy 7 year old boy. We find no issues about
          [Child’s] physical or emotional development which
          will have an impact by the proposed relocation.

                 Next, we must consider the feasibility of
          preserving the relationship between [Child] and
          Father after relocation.       The distance between
          Havertown Twp. and Monroe County is not
          significant. As such, we do not believe that this
          distance    will   cause    logistical  problems    for
          maintaining      a    consistent    physical   custody
          arrangement.       Although the periods of partial
          physical custody will be curtailed during the school
          year, both Mother and Father have agreed to flip the
          physical custody schedule during the off school
          months which will permit Father to have a significant
          period of partial physical custody.       Nevertheless,
          technology makes it possible for Father and [Child]
          to see and speak to each other every day.



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                Since [Child] is 7 years old, we will not
          consider his preference in living primarily with
          Mother or Father. There is no pattern of conduct by
          either parent to thwart the relationship of the other.
          Father and Mother have impressed this Court with
          their willingness to work with each other to maintain
          their relationship with [Child] and each other.
          Mother and Father are the epitome of good
          parenting.

                We find that the relocation will improve
          Mother’s life and especially her desire to continue her
          educational goals. Mother indicated that [Child] will
          be starting a new school regardless of which parent
          is awarded primary physical custody. We believe
          that [Child] will gain great educational opportunities
          in the Havertown area. The location is close to
          Philadelphia and the broad scope of activities,
          including many historic and cultural opportunities.

                Father also presented evidence about the
          school district which [Child] would attend if the
          relocation was not granted.          The educational
          opportunities are equivalent; however the historic
          and cultural advantages are significant in Havertown.

                Mother’s motivation to relocate is based in
          large part on her desire to continue her education
          and her future marriage to [M.K.]. We trust her
          motives are genuine and that she believes she will
          be providing [Child] with the advantages found in
          the Havertown area.        Moreover, we believe that
          Father’s opposition to the relocation is also genuine.
          He is concerned with [Child’s] well-being and the
          general quality of his life. We are astounded by the
          parenting skills and maturity of each parent and
          have no doubt they will continue to cooperate and
          continue to make [Child] their priority even after
          relocation.   We have thoroughly examined the
          evidence and we believe that the factors weigh more
          heavily in favor of [Child] relocating to Havertown
          Twp. While no one factor alone outweighs any other
          factor, we must consider all the factors together to
          determine what is best for [Child].


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Id. at 5-9 (underscoring omitted).

      Here, Father first contends that because 15 of the 16 Section 5328(a)

factors were either neutral or inapplicable and because the trial court found

that the remaining factor, which is factor 11 that considers the proximity of

the residences of the parties, weighed in Father’s favor, that the trial court

erred in not awarding Father primary physical custody. Father’s argument is

flawed for two reasons. First, it compels the illogical conclusion that where a

mother and a father are equally fit to act as their child’s primary custodian

based upon consideration of the Section 5328 factors, the parent who seeks

to relocate would never be awarded primary custody solely because that

parent sought such relocation.       Second, Father’s argument ignores the

mandate under the Act that requires the trial court to consider the

ten additional factors set forth in Section 5337(h) when determining a

request for relocation. Therefore, Father’s first claim lacks merit.

      Father next contends that Mother failed to satisfy her burden of

proving that relocation will serve Child’s best interests. In this section of his

brief, Father claims that the trial court abused its discretion with respect to

its weighing of factor 7 under Section 5337(h), which required it to consider

whether relocation will enhance Child’s general quality of life. With respect

to that factor, the trial court concluded that Mother’s relocation to

Havertown “is close to Philadelphia and the broad scope of activities,

including many historic and cultural opportunities.”       (Trial court opinion,


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9/9/16 at 8.)   Father claims that because no evidence was offered with

respect to the historic and cultural opportunities offered in Philadelphia or

those offered in Monroe County, the trial court abused its discretion by

considering evidence outside of the record in making its decision.         See

M.P. v. M.P., 54 A.3d 950, 954 (Pa.Super. 2012) (reiterating that a trial

court may not consider evidence outside of the record in making its

decision). (Father’s brief at 29-30.) A review of Father’s Pa.R.A.P. 1925(b)

statement, however, reveals that Father failed to preserve this particular

challenge.   Therefore, Father waives this claim on appeal.       See In the

Interest of B.S., 831 A.2d 151, 155 (Pa.Super. 2003) (failing to include

claims in Rule 1925(b) statement results in waiver of those claims on

appeal).

      The remainder of Father’s argument with respect to his second issue

on appeal requests that we reweigh the Section 5337(h) factors. We have

carefully reviewed the record in this case.       Additionally, we are quite

cognizant of our standard of review. Accordingly, because competent record

evidence supports the trial court’s reasonable findings and those findings

were not the result of an error of law, we must accept the trial court’s

findings and decline Father’s invitation to reweigh the evidence. See C.R.F.,

45 A.3d at 443 (reiterating that where a trial court’s conclusions are

reasonable as shown by record evidence and those conclusions are not the

result of an error of law, the appellate court is bound by those conclusions).



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      In his final issue on appeal, Father contends that “the trial court

committed an error of law and/or abused its discretion in failing to consider

evidence contrary to relocation.” (Father’s brief at 36.) In his brief, Father

then sets forth selected testimony, followed by the conclusions that Father

believes that the trial court should have reached with respect to that

testimony. Once again, Father invites us to reweigh the evidence and reach

a different result. And once again, we must decline Father’s invitation to do

so because we are bound by the trial court’s conclusions where, as here,

those conclusions are reasonable and supported by record evidence.        See

id.

      Order affirmed.

Judgment Entered.




Joseph                   D.                   Seletyn,                   Esq.
Prothonotary

Date: 6/14/2017




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