J-A04016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.H.W.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

S.E.W.

                            Appellee                 No. 2256 EDA 2016


                 Appeal from the Order Entered June 14, 2016
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2015-29053

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                             FILED APRIL 11, 2017

        S.H.W. (“Mother”) appeals from the June 14, 2016, custody order as

to the parties’ children, Br.W. (born 2002), C.W. (born 2005), and Bl.W.

(born 2005) (collectively, “the Children”). Upon careful review, we affirm.

        S.E.W. (“Father”) and Mother (collectively, “Parents”) were married on

September 30, 2001. N.T., 6/7/16, at 7. Prior to July 2008, Parents and

the Children lived in Tokyo, Japan, id. at 13, where the Parents had “various

forms of childcare help, a babysitter or an au pair.” Id. at 16. When asked

for more details about the childcare assistance hired in Tokyo, Mother

testified:

        [T]hey were not my nannies. . . . I did not have nannies. The
        [C]hildren had assistance. We had assistance in the home. . . .
        Prior to having [C.W. and Bl.W.], which was in 2005, we may
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
J-A04016-17


      have had one person full time. . . . From time to time, we may
      have had two people helping.

Id. at 122-24.

      In July 2008, Mother and the Children moved from Tokyo into the

martial residence in Haverford, Pennsylvania, and they continue to reside

there. N.T., 6/7/16, at 7. Father initially remained in Tokyo.

      Father joined Mother and the Children in March 2009. N.T., 6/8/16, at

68-70; see also Trial Ct. Op., 9/21/16, at 13. Upon his return, Father was

not employed and became the Children’s “full time caretaker,” providing for

their daily needs, including taking them to and picking them up from school,

transporting them to their sports and other activities, and cooking for them.

Father described himself as “a graduate of the hotel school, so cooking is

something that’s meaningful to [him]”; for example, he made grilled cheese

sandwiches, spaghetti, or noodles for the Children. N.T., 6/8/16, at 70-71.

Bl.W. particularly liked cooking and baking with Father, so they started

making cookies, cupcakes, noodles, ice cream, and other food together. Id.

at 71. Mother would later allege that Father “did nothing” with the Children

during this period; Father testified that Mother’s claim was “patently false.”

Id. at 72.

      In 2010, Father began doing some part-time consulting work,

including work for his current company, which is located in New York City.

N.T., 6/7/16, at 19; N.T., 6/8/16, at 73. Father travelled frequently for this

job — to Florida, Hawaii, New York, and Japan. N.T., 6/7/16, at 19. Mother

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asserted that, “if Father returned from New York during the week in 2010, it

was too late to see or care for the Children.” Mother’s Reply Brief at 4.

      During this time, Mother attended the University of Pennsylvania Law

School, where her focus was “financial regulation and tax.” N.T., 6/7/16, at

24-25.   Mother already held a Master Degree in Business Administration

from the Wharton School at the University of Pennsylvania, with a dual

major in Finance and Statistics, and a Master’s Degree in Public International

Law from Oxford University. After graduation from law school in 2011, she

considered moving     to   New   York, where    she   had several offers       of

employment.    Instead, at Father’s request, Mother remained in Haverford,

and she was hired by The Vanguard Group. Id. at 25.

      Father again became employed full-time in May 2011, and he then

travelled frequently to New York, where his employer was located.           N.T.,

6/7/16, at 18-19, 25; N.T., 6/8/16, at 73. When he travelled for this new

employment, he remained in contact with the Children through telephone

calls and e-mails. All of the Children have cellular phones. Ex. F-16.

      On February 27, 2015, Mother voluntarily left her employment with

The Vanguard Group, because she did not wish to travel. N.T., 6/7/16, at

24, 26, 121-22.     She searched for a new job, but did not send any

applications to law firms in the Philadelphia area, even though she had

passed the Pennsylvania bar exam.




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      On November 3, 2015, Parents separated. N.T., 6/7/16, at 7. Mother

alleges that, since the separation, Father has been “liv[ing] in New York City

hotels.” Compl. in Divorce at 11 ¶ 15. Mother later testified:

      Q     Where does [Father] currently reside?

      A     Currently, he resides in New York. He has been living in
      hotels -- different hotels every night for a number of years.

      Q    [O]ther than the marital residence, does he have a
      permanent home here in Pennsylvania?

      A     No.

      Q     During his custodial time since November, where does he
      go with the kids?

      A      Since November on his custodial every other weekend, he
      has taken the kids to a hotel in New York City, a hotel in the
      Philadelphia area, to a weekend-only rental in Haverford, and
      most recently to the Crown Plaza West Philadelphia on his
      Thursday with [Br.W.], and to a camping area in Maryland with
      all three kids.

N.T., 6/7/16, at 90.

      On February 23, 2016, the Parents entered into a stipulation for entry

of a custody order (“Custody Stipulation”), in which they agreed that the

Children would spend every other weekend with Father from Friday until

Sunday and that on Thursdays Father would spend custodial time with one

of the Children on a rotating basis. Custody Stipulation, 2/23/16, at 3 ¶ 3.a.




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       On April 12, 2016, Mother filed an Emergency Petition requesting

permission for her to relocate to Bethesda, Maryland1 (“Relocation Petition”).

Mother alleged that she had been offered her “dream job” in Maryland, for

“the highest salary [she has] ever been offered,” $170,400. N.T., 6/7/16, at

38-39, 85. On May 16, 2016, Father filed an answer that objected to the

proposed relocation.

       On June 7 and 8, 2016, the trial court held hearings on the Relocation

Petition. During the hearings, Mother conceded that if she were permitted to

relocate to Maryland with the Children, Father’s alternating Thursday

custodial time would be “difficult.” N.T., 6/7/16, at 55. She did not provide

a proposed revised custody schedule to the court, and, when asked what she

would suggest, Mother said that she “intended” to be “as flexible as

possible” and was “hoping that we can speak about it and come to an

agreement.” Id. at 54-55. She added that there “could be an opportunity

in the summer” for Father to spend more time with the Children. Id.

       Father testified that he was looking to purchase a home in the

Philadelphia area, because “it’s my home” as well as being the Children’s

home.     N.T., 6/8/16, at 110.          Father testified that “we have anchored

ourselves there.” Id. The Children are currently enrolled in private schools

in Pennsylvania. Order, 7/7/16, at 2. Father further testified that he would
____________________________________________
1
  During oral argument before this Court on February 14, 2016, Mother
clarified that she hoped to move to Chevy Chase, Maryland, which is about
two miles away from Bethesda.


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be able to adjust his work schedule to accommodate the Children’s needs if

they were to remain in Pennsylvania. Trial Ct. Op., 9/21/16, at 14-15 (citing

N.T., 6/8/16, at 124). He said his employer would be flexible with his work

and travel schedules and be “very comfortable” with Father “working out of

Philadelphia,” as opposed to New York. N.T., 6/8/16, at 152-53.

      Father claims that since he separated from Mother, he has been

“hindered frequently” by Mother from taking the Children to activities that he

wished to attend with them. N.T., 6/8/16, at 76. For example, he said that

when he wanted to take Bl.W. to a movie, Mother told him “absolutely not.”

Id. He stated that Mother also would not agree to weekend trips and once

refused to let him take Br.W. on a planned trip to Father’s cousin’s home on

Independence Day.    Id. at 76-77. Father also testified about how Mother

would interfere when the Children were allowed to be with him:

      And while I was with [Bl.W. and C.W.] up in the Allegheny River,
      [Mother] called them incessantly, she told me on the phone she
      never wanted to be away from the [C]hildren again and that she
      was very, very upset by this occurrence.

      And she called the [C]hildren to tell them that she had taken
      [Br.W.] to the shore and that they were riding roller coasters
      and eating popcorn and it was so much fun there. And that
      really hurt.

Id. at 77.    Father introduced e-mails between himself and Mother that

documented his “plea to be active in scheduling the [C]hildren’s activities.”

Ex. F-11; N.T., 6/8/16, at 78.




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      The trial court also interviewed the Children in camera.               Br.W.

confirmed that the Children consistently spend every other weekend with

Father from Friday until Sunday and that on Thursdays Father spends

custodial time with each child on a rotating basis. N.T. Interview of Br.W.,

6/8/16, at 4, 10-12.        Br.W. “[did]n’t mind” changing that custody

arrangement, “as long as [he] g[o]t to see [his] mom and [his] dad,” but he

also expressed that “it would be kind of cool to see [his] dad more.” Id. at

21-23. C.W. told the trial court, “I don’t want to move to Maryland.” N.T.

Interview of C.W., 6/8/16, at 11.         Bl.W. said that she “wouldn’t mind”

moving to Maryland but that she would like to see Father “a little bit more.”

N.T. Interview of Bl.W., 6/8/16, at 12.

      On June 14, 2016, the trial court denied Mother’s relocation petition.

On June 21, 2016, Mother sent a letter to the trial court, requesting that the

court “submit its opinion under the relocation factors” before July 14, 2016.

On July 7, 2016, the trial court complied. The court’s decision states:

      The [c]ourt considered the relocation factors as set forth in 23
      Pa.C.S.A. §5337(h) as well as the best interests of the [C]hildren
      in considering [Mother]’s petition for relocation. . . . The [c]ourt
      has considered the best interests of the [C]hildren by
      considering the [C]hildren’s current schedule and the importance
      of both [P]arents maintaining an active role in the growth and
      development of the [C]hildren. The [c]ourt finds that both
      [P]arents are able to attend to the daily physical, emotional,
      developmental, educational needs of the [C]hildren. Neither
      parent presented any persuasive evidence that the other parent
      is incapable of caring for the [C]hildren, or providing for their
      needs.




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     Based on the evidence presented at the June 7 and June 8, 2016
     hearings, the [c]ourt found that based on the ages and needs of
     the [C]hildren, a relocation to Maryland would not be in their
     best interests. The [C]hildren, [Br.W., C.W.,] and [Bl.W.] have
     lived in Pennsylvania since July of 2008. [C.W.] and [Bl.W.]
     have attended their current schools since they were in first
     grade. [Br.W.] has been at his school since kindergarten. All
     three [C]hildren are in private school in Pennsylvania. There
     was testimony presented that the [C]hildren are doing well in
     school, and are happy.      All three children are involved in
     numerous extracurricular activities. Plaintiff/Mother (hereinafter
     “Mother”) testified that she was “hoping to move to Bethesda”
     and offered evidence as to the public school district in that area.
     There was no persuasive evidence presented at the hearings that
     the quality of the [C]hildren’s education would improve, or
     remain consistent for that matter, if they were to relocate to
     Maryland.

     There was also no persuasive evidence that the relocation would
     enhance the general quality of life for the [C]hildren financially
     or emotionally.

     Under the current custody schedule, Defendant/Father
     (hereinafter “Father”) has partial physical custody of the
     [C]hildren every other weekend from Thursday at 5:00 p.m.
     until Sunday at 5:00 p.m. The [c]ourt found that a relocation of
     the [C]hildren to Maryland would be detrimental to Father’s
     ability to exercise his periods of partial physical custody since
     the [C]hildren would be attending school in Maryland, thereby
     making Father’s overnight custody on Thursdays difficult if not
     impossible. Father also testified that if the [C]hildren were to
     relocate, he would not be able to actively participate in their
     weekday activities in the manner at which he has done so.

     Mother testified as to her educational and employment
     background. Based on her education and experience, the [c]ourt
     did not find Mother’s argument that she is unable to find suitable
     employment in the Pennsylvania, New Jersey, or New York area
     to be persuasive. Although acceptance of the specific job in
     Maryland may provide Mother with a financial benefit, Mother did
     not prove that the job in Maryland is the only opportunity she
     will have for similar or even satisfactory employment
     opportunities. The court found that based on the testimony at
     the hearings, Mother’s specific employment opportunity does not

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       outweigh the [C]hildren’s need for stability and continuity in
       their lives, nor does it outweigh the importance of Father
       maintaining an active role in the [C]hildren’s lives.

       Based on the testimony presented at the hearings, the [c]ourt
       also has concerns as to Mother’s willingness and ability to
       promote the [C]hildren’s relationship with Father if they were to
       move to Maryland.

       The preference of the [C]hildren as to a possible relocation was
       also considered by the [c]ourt.

       There was testimony offered that Mother wants to move to
       Maryland to “start a new life, farther away.” The [c]ourt does
       not find that Mother’s desire to start a new life elsewhere
       outweighs the need for continuity and stability in the [C]hildren’s
       lives and the children’s proximity to their father.

Order, 7/7/16, at 1-3.

       On July 12, 2016, Mother filed a timely notice of appeal to this Court. 2

On August 17, 2016, Mother responded to an order by this Court for her to

show cause why the appeal was taken from an order that is final and

appealable. On August 23, 2016, this Court discharged the rule, but stated

that this decision was “not a final determination as to the propriety of the

appeal.” A custody order is final and appealable “only after the trial court

____________________________________________
2
   Mother did not file a Pa.R.A.P. 1925(b) statement concomitantly with her
notice of appeal, as required by Pa.R.A.P. 1925(a)(2)(i) for cases of this type
– i.e., Children’s Fast Track (“CFT”). The trial court ordered Mother to file
her statement within 21 days, and Mother complied. Father does not claim
that he was prejudiced by the late filing of Mother’s statement, and that late
filing does not require dismissal of her appeal. See In re K.T.E.L., 983
A.2d 745, 747 (Pa. Super. 2009) (failure to file a 1925(b) statement
concomitantly with a CFT appeal will not result in dismissal where there is
substantial compliance and no prejudice, since failure to file the statement is
a violation of a procedural rule and not an order of court).


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has completed its hearings on the merits and the resultant order resolves

the pending custody claims between the parties.” G.B. v. M.M.B., 670 A.2d

714, 715 (Pa. Super. 1996) (en banc). Here, the trial court had completed

its hearings on the merits prior to issuing the order of June 14, 2016, and its

order resolved the dispute regarding Mother’s relocation petition. Thus, we

now hold that the order of June 14, 2016, is both final and appealable. We

therefore proceed to the merits of the case.

      Mother raises the following issues for our review:

      1.    Did the trial court abuse its discretion in denying
      Appellant-Mother’s request for relocation by failing to properly
      consider all of the relocation factors enumerated under 23 Pa.
      C.S.A. § 5337(h) and failing to delineate all of its reasons for
      denying Mother’s request for relocation?

      2.    Did the trial court abuse its discretion [(A)] by failing to
      properly consider the lack of involvement and presence of
      Appellee-Father in the [C]hildren’s lives under 23 Pa. C.S.A. §
      5337(h)(1) and [(B)] by finding that “both parents are able to
      attend to the daily physical, emotional, developmental,
      educational needs of the children” when Appellee-Father
      admitted that he is somewhere other than Pennsylvania 76% of
      the time?

      3.     Did the trial court abuse its discretion by failing to consider
      other suitable custody arrangements, as is required under 23 Pa.
      C.S.A. § 5337(h)(3), before concluding that the [C]hildren’s
      relocation to Maryland would be “detrimental to Appellee-
      Father’s ability to exercise his periods of partial physical custody
      since the [C]hildren would be attending school in Maryland,
      thereby making Appellee-Father’s overnight custody on Thursday
      difficult if not impossible”?

      4.     Did the trial court abuse its discretion by improperly
      crediting Appellee-Father’s testimony that, if the [C]hildren were
      to relocate, “he would not be able to actively participate in their
      weekday activities in the manner at which he has done so”

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     because Appellee-Father’s assertion that he has heretofore
     “actively participated” in the [C]hildren’s weekday activities is
     not supported by the record?

     5.     Did the trial court abuse its discretion by failing to properly
     consider whether relocation would enhance the general quality of
     life of Appellant-Mother, both financially and emotionally, under
     23 Pa. C.S.A. § 5337(h)(6)?

     6.    Did the trial court abuse its discretion by concluding that
     Appellant-Mother failed to prove that she is unable to obtain
     suitable employment in Pennsylvania, New Jersey, and/or New
     York because this conclusion is not supported by the record?

     7.     Did the trial court abuse its discretion by doubting Mother’s
     willingness and ability to promote the [C]hildren’s relationship
     with Appellee-Father if the [C]hildren relocate to Maryland
     because such a concern is not supported by the record and
     ignores the fact that Appellee-Father willingly spends the
     majority of his time outside of Pennsylvania and away from the
     [C]hildren?

     8.     Did the trial court abuse its discretion by concluding that
     there was no persuasive evidence presented at the hearings that
     the quality of the [C]hildren’s education would improve, or
     remain consistent, if they were to relocate to Maryland because
     this conclusion is not supported by the record?

     9.     Did the trial court abuse its discretion by finding that the
     [C]hildren are involved in numerous extra-curricular activities in
     Pennsylvania and failing to consider the evidence that similar
     activities are available in Maryland?

     10. Did the trial court abuse its discretion by failing to consider
     under 23 Pa. C.S.A. § 5337(h)(7) the ways in which the
     [C]hildren’s relocation to Maryland, a short distance from
     Washington D.C., would enhance the quality of life for the
     children by providing them with additional extra-curricular
     activities, a gainfully employed Mother with the federal
     government, and the ability to further foster relationships with
     family and close family friends in the Maryland/Washington D.C.
     area?




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     11. Did the trial court abuse its discretion by concluding that
     the need for continuity and stability in the [C]hildren’s lives and
     the [C]hildren’s proximity to their [F]ather outweighs Appellant-
     Mother’s need to relocate because this conclusions is not
     supported by the record, as the [C]hildren are not in close
     proximity to Father while living in Pennsylvania and there is no
     evidence that the Children’s relocation to Maryland would be
     detrimental to them or otherwise affect their relationship with
     Appellee-Father?

Mother’s Brief at 4-7 (answers omitted).

     We begin by acknowledging our scope and standard of review in

custody cases:

     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.

D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).

     When considering whether to grant relocation, the court must analyze

the ten factors set forth in the relocation provision of the Custody Act, 23

Pa.C.S. § 5337:

     (h) Relocation factors.--In determining whether to grant a
     proposed relocation, the court shall consider the following


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     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 nonrelocating party and the child through suitable
          custody arrangements, considering the logistics and
          financial circumstances of the parties.

          (4) The child’s preference, taking into consideration the
          age and maturity of the child.

          (5) Whether there is an established pattern of conduct of
          either party to promote or thwart the relationship of the
          child and the other party.

          (6) Whether the relocation will enhance the general quality
          of life for the party seeking the relocation, including, but
          not limited to, financial or emotional benefit or educational
          opportunity.

          (7) Whether the relocation will enhance the general quality
          of life for the child, including, but not limited to, financial
          or emotional benefit or educational opportunity.

          (8) The reasons and motivation of each party for seeking
          or opposing the relocation.

          (9) The present and past abuse committed by a party or
          member of the party’s household and whether there is a
          continued risk of harm to the child or an abused party.

          (10) Any other factor affecting the best interest of the
          child.


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23 Pa.C.S. § 5337(h); see Mother’s Brief at 4-7 ¶¶ 1-11. Mother’s 11 issues

generally amount to an attack on the trial court’s assessment of these

factors. Indeed, Mother’s first issue consists of a claim that the trial court

failed properly to consider all of the factors when it rendered its decision.

The trial court said that it did consider all of the factors, both in its order

dated July 7, 2016, and in an expanded analysis in its opinion dated

September 21, 2016.         We shall address Mother’s 11 issues by referencing

each of the relocation factors seriatim.

       (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.3 Parents do not dispute that Mother has a strong relationship

with the Children. See, e.g., Mother’s Brief at 26; Father’s Brief at 25, 28.

The trial court found, however, that the Children also have a strong

relationship with Father.

       The trial court stated:      “Father testified as to his involvement in the

day to day lives of the [C]hidren. . . . Father stated that he has helped the

[C]hildren with their homework, cooked them meals, [and] attended their

extracurricular activities[.]” Trial Ct. Op., 9/21/16, at 13; see N.T., 6/8/16,

at 68-73.     The court noted that Father has had physical custody of the

____________________________________________
3
 The first part of Mother’s second issue relates to this first relocation factor.
See Mother’s Brief at 4 ¶ 2(A).


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Children every other weekend and spent rotating Thursdays with each of the

Children separately. Custody Stipulation, 2/23/16, at 3 ¶ 3.a.; N.T., 6/7/16,

at 55; N.T. Interview of Br.W., 6/8/16, at 4, 10-12. Additionally, between

March 2009 and May 2011, Father was the Children’s “full time caretaker,”

because he was not employed during that time. N.T., 6/8/16, at 73. During

this period, Father actively participated in the Children’s sports and other

extracurricular activities and provided for their daily needs.   Trial Ct. Op.,

9/21/16, at 13 (citing N.T., 6/8/16, at 68-70).         Father testified that

“Mother’s claim that he ‘did nothing’ with the [C]hildren during that time is

‘patently false.’” Id. (quoting N.T., 6/8/16, at 72).

      The trial court concluded that the testimony at the hearings and the

child interviews “demonstrated to the court” that “Father shares a close,

warm, and positive relationship with the [C]hildren and has done so since

their births.” Trial Ct. Op., 9/21/16, at 13. The trial court’s findings “are

supported by competent evidence of record.” D.K., 102 A.3d at 478. See

N.T., 6/8/16, at 68-73. Because the record substantiates these findings, we

hold that the trial court did not abuse its discretion and properly considered

“the nature, quality, extent of involvement and duration” of the Children’s

relationship with Father, pursuant to the first relocation factor under the

Custody Act, 23 Pa.C.S. § 5337(h)(1).

      (2) The age, developmental stage, needs of the child and the

likely impact the relocation will have on the child’s physical,


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educational and emotional development, taking into consideration

any special needs of the child.4               In its order of July 7, 2016, the trial

court asserted:

       The Court finds that both [P]arents are able to attend to the
       daily physical, emotional, developmental, educational needs of
       the [C]hildren.      Neither parent presented any persuasive
       evidence that the other parent is incapable of caring for the
       children, or providing for their needs.

Order, 7/7/16, at 1. The trial court reiterated this conclusion in its opinion

of September 21, 2016:

       Mother presented no credible evidence at the hearings that
       [Appellee] Father is unable to attend to the daily physical,
       emotional, developmental, and educational needs of the children
       due to his employment responsibilities, or for any other reason.
       She also did not present any credible evidence that [Appellee]
       Father’s work schedule constitutes “a lack of involvement and
       presence” of [Appellee] Father in the children’s lives. There was
       no persuasive evidence that [Appellee] Father’s extensive travel
       for his job which occurred during the course of the parties’
       marriage was detrimental to the health, safety, or emotional
       welfare of the children.

Trial Ct. Op., 9/21/16, at 14. With regard to issues of credibility and weight

of the evidence, we must defer to the trial court, which viewed and assessed

the witnesses, including Father, first-hand. See D.K., 102 A.3d at 478.

       Moreover, the trial court’s conclusions are supported by the evidence

of record.    See D.K., 102 A.3d at 478.             The evidence supports the trial

court’s finding that “[t]he [C]hildren were well cared for by both [P]arents,

____________________________________________
4
  This second relocation factor corresponds to the second part of the second
issue raised by Mother on appeal. See Mother’s Brief at 4 ¶ 2(B).


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and by hired caregivers.” Trial Ct. Op., 9/21/16, at 14. See N.T., 6/7/16,

at 11, 16; N.T., 6/8/16, at 70-72. Father testified that even when he was

travelling for work, he stayed connected to the Children through e-mails and

phone calls.   As noted above, between March 2009 and May 2011, Father

was the Children’s “full time caretaker.” Father also testified that he would

be able to adjust his work schedule to accommodate the Children’s needs if

they were to remain in Pennsylvania. Trial Ct. Op., 9/21/16, at 14-15 (citing

N.T., 6/8/16, at 124).

      The trial court concluded:    “For the above stated reasons, the [trial]

court did not err or abuse its discretion in finding that Father is able to care

for the [C]hildren on a daily basis and meet their needs, and finding that he

has been an active participant in their upbringing in care.”     Trial Ct. Op.,

9/21/16, at 15.   We agree that the trial court did not abuse its discretion

and that it did properly consider the Children’s physical, educational, and

emotional development, pursuant to the second relocation factor under the

Custody Act, 23 Pa.C.S. § 5337(h)(2).

      (3) The feasibility of preserving the relationship between the

nonrelocating     party   and      the   child   through   suitable    custody

arrangements, considering the logistics and financial circumstances




                                     - 17 -
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of the parties.5 Mother contends that “the trial court improperly credited

Father’s testimony that ‘he would not be able to actively participate in their

weekday activities in the manner in which he has done so’” and argues that

the trial court’s finding “is not supported by the record.” Mother’s Brief at

39; see also id. at 5 ¶ 4.           Father answers that his “custody time and

involvement in the Children’s extra-curricular activities would be impeded if

the Children lived in Maryland,” because “it would be difficult, if not

impossible, for Father to continue his Thursday custodial time if the Children

were attending school in Maryland.” Father’s Brief at 30.

       The trial court observed:

       At the hearings, [Father] testified as to his involvement in the
       day to day lives of the [C]hildren. [Father] stated that he has
       helped the [C]hildren with their homework, cooked them meals,
       attended their extracurricular activities, and since the parties’
       separation, he has had physical custody of the [C]hildren every
       other weekend, and he spends alternate Thursdays with each
       child separately. Furthermore, between March, 2009 and May,
       2011, he was able to be a “full time caretaker” for the [C]hildren
       since he was not employed during that time. N.T.[, 6/8/16,] at
       73. During this period [Father] actively participated in the
       [C]hildren’s sports and other extracurricular activities, and
       provided for their day to day needs. [Id.] at 68-70. He stated
       that [Mother’s] claim that he “did nothing” with the [C]hildren
       during that time is “patently false”. [Id.] at 72. . . . Therefore
       the [trial] court does not find [Mother’s] characterization of
       [Father] having a “lack of involvement or presence” in the
       [C]hildren’s lives to be persuasive. . . .


____________________________________________
5
  This third relocation factor corresponds to the third, fourth, and eleventh
issues raised by Mother and is directly referenced within her third issue.
See Mother’s Brief at 4-7 ¶¶ 3, 4, 11.


                                          - 18 -
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      At the June 7, 2016 hearing, [Mother] conceded that if she were
      permitted to relocate to Maryland with the [C]hildren, [Father’s]
      alternating Thursday custodial time with the [C]hildren would be
      “difficult.” N.T.[, 6/7/16,] at 55. However, [Mother] did not
      present the court with a viable alternative to the parties’ current
      custody schedule, nor did she present sufficient evidence for the
      court to fashion an alternative custody schedule which would
      provide [Father] with comparable custodial time with the
      [C]hildren. Instead, when asked what her proposed custodial
      schedule would be, [Mother] testified that she “intended” to be
      “as flexible as possible”, and that she was “hoping that we can
      speak about it and come to an agreement.” [Mother] also stated
      that there “could be an opportunity in the summer” for [Father]
      to have additional custodial time with the [C]hildren. [Id.] at
      54-55.

Trial Ct. Op., 9/21/16, at 13, 15.

      Although Mother protests that “the trial court improperly credited

Father’s testimony,” 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.”      D.K., 102 A.3d at 478.     “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.” Id.

      Here, since the trial court’s finding that it would be unfeasible to

preserve the relationship between Father and the Children was supported by

competent evidence of record, as demonstrated by its abundant citations to

the notes of testimony, we cannot disturb the trial court’s factual

determinations and cannot substitute new credibility determinations for

those of the trial court.    See 23 Pa.C.S. § 5337(h)(3); D.K., 102 A.3d at


                                     - 19 -
J-A04016-17


478. Hence, we accept the trial court’s “credit[ing]” of Father’s testimony

and conclude the trial court did not abuse its discretion. See id.

       (4) The child’s preference, taking into consideration the age

and maturity of the child. The trial court considered the preferences of

the Children. Order, 7/7/16, at 3. C.W., who was born in 2005, specifically

wanted to remain in Pennsylvania and did not wish to relocate to Maryland.

N.T. Interview of C.W., 6/8/16, at 11. Bl.W., who was also born in 2005,

“wouldn’t mind” moving to Maryland but still wished to see Father “a little bit

more.”    N.T. Interview of Bl.W., 6/8/16, at 12.         Br.W., who was born in

2002, also expressed no preference but likewise would prefer to see Father

more often.       N.T. Interview of Br.W., 6/8/16, at 21-23.           The record

demonstrates that the trial court properly considered this factor in denying

Mother’s relocation request.

       (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      The trial court stated, “There was . . . evidence presented

that starting approximately a year ago, [Mother] ‘frequently hindered’

[Father] from taking the [C]hildren to their activities or spending time with

the [C]hildren.” Trial Ct. Op., 9/21/16, at 13 (citing N.T., 6/8/16, at 76-78).

The record supports this statement.            For example, Father testified about

____________________________________________
6
 The Mother’s seventh issue relates to this fifth relocation factor.          See
Mother’s Brief at 5 ¶ 7.


                                          - 20 -
J-A04016-17


barriers erected by Mother when he wanted to take Bl.W. to a movie or to

visit Father’s cousin, and he told of interference by Mother during a river trip

with Bl.W. and C.W.

       The court also found that relocation would hinder Father’s ability to

spend time with the Children. See Trial Ct. Op., 9/21/16, at 17 (requiring

Father to travel on “a weekly basis in order to exercise his physical custodial

time is [not] feasible” or “to rent a hotel room or a house in order to spend

time with his children is unnecessarily burdensome”). We have no ground to

disturb the trial court’s findings relating to this factor.

       (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                     “In

reaching a decision in this matter, the [trial] court took into consideration

[Mother’s] testimony as to the financial and emotional benefits she would

gain by relocating to Maryland.”          Trial Ct. Op., 9/21/16, at 18.   The trial

court found that if Mother is permitted to relocate, she would earn the

highest salary that she has ever received and have her “dream job.”             Id.

These findings of the trial court “are supported by competent evidence of

record.” D.K., 102 A.3d at 478. See N.T., 6/7/16, at 38-39, 85.


____________________________________________
7
 This sixth relocation factor corresponds to the fifth and sixth issues raised
by Mother and is directly referenced within the fifth issue. See Mother’s
Brief at 5 ¶¶ 5-6.


                                          - 21 -
J-A04016-17


        However, the trial court was concerned that Mother actively searched

for employment opportunities in the Washington, D.C. area prior to

obtaining Father’s agreement to a relocation of the Children or gaining the

court’s permission for a relocation. Trial Ct. Op., 9/21/16, at 18. The trial

court    noted    that   Mother’s   employment   offer   did   not   come    to   her

independently or as a promotion by an existing employer.             Id.   “It is one

which she pursued of her own volition, knowing that it would require

relocation and disruption in the [C]hildren’s lives.” Id.

        We acknowledge that Mother testified there was no possibility of

maintaining her employment in Pennsylvania or of receiving a salary as high

as the one she was being offered in Maryland, despite her educational

credentials.     N.T., 6/7/16, at 24, 38-39, 85, 120-22.       However, the trial

court observed that Mother was not qualified as an expert and provided no

supporting evidence for these assertions, and the trial court doubted their

accuracy.      Order, 7/7/16, at 2 (the trial court “did not find . . . Mother’s

argument . . . to be persuasive”); Trial Ct. Op., 9/21/16, at 6 (same), 18

(“the [trial] court does not find [Mother’s] testimony on this point to be

credible”). With regard to issues of credibility and weight of the evidence,

we must defer to the trial court, which viewed and assessed the witnesses,

including Mother, first-hand. See D.K., 102 A.3d at 478. Mother has not

established that the trial court abused its discretion when it found that she

refused to consider any other options, such as applying to positions with law


                                       - 22 -
J-A04016-17


firms in Philadelphia.      Trial Ct. Op., 9/21/16, at 20-21.       See also N.T.,

6/7/16, at 121.

       We conclude that the trial court did not abuse its discretion and

properly considered how the proposed relocation would enhance the general

quality of Mother’s life, pursuant to the sixth relocation factor under the

Custody Act, 23 Pa.C.S. § 5337(h)(6). The trial court considered the benefit

that the relocation would provide to Mother, but ultimately concluded that

the benefit was outweighed by other factors and that Mother had not proven

to the court’s satisfaction that she could not also derive significant benefits if

she more actively searched for suitable employment in the Philadelphia area.

       (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 Children have attended their

current private schools in Pennsylvania since they were in kindergarten or

first grade. Order, 7/7/16, at 2. The Children are succeeding academically

and are happy in their respective schools. Id.; Trial Ct. Op., 9/21/16, at 6.

The trial court stated:

       [Mother] testified that she was “hoping to move to Bethesda”
       and offered evidence as to the public school district in that area.
       There was no persuasive evidence presented at the hearings that
       the quality of the children’s education would improve, or remain
       consistent for that matter, if they were to relocate to Maryland.
____________________________________________
8
  This seventh relocation factor corresponds to the eighth, ninth, and tenth
issues raised by Mother and is directly referenced within the tenth issue.
See Mother’s Brief at 6 ¶¶ 8-10.


                                          - 23 -
J-A04016-17



Order, 7/7/16, 2; Trial Ct. Op., 9/21/16, at 6.               With regard to issues of

credibility and weight of the evidence, we must defer to the trial court, which

viewed and assessed the witnesses first-hand. See D.K., 102 A.3d at 478.

      In addition to considering the Children’s schools, the trial court also

examined the Children’s opportunities for extracurricular activities. Trial Ct.

Op., 9/21/16, at 24.     The Children are involved in numerous activities in

Pennsylvania, including music lessons, sports, trips to museums, and other

pastimes with their friends.        Id.       Although Mother hopes for similar

opportunities in Maryland, the court found that Mother “did not prove that

the activities [available to the Children] in Maryland would ‘enhance’ the

[C]hildren’s lives as contemplated by” 23 Pa.C.S. § 5337(h)(7). Id. Thus,

the trial court did not abuse its discretion when considering this seventh

relocation factor when it held that “[s]imply replicating the [C]hildren’s

existing   extracurricular   activities     in     Maryland    does   not   necessarily

demonstrate that their lives would be improved by relocation to Maryland.”

Trial Ct. Op., 9/21/16, at 24.

      The trial court concluded that, based on the testimony, Mother’s

specific employment opportunity and desire to start a new life elsewhere did

not outweigh the Children’s need for stability and continuity or the

importance of Father maintaining an active role in the Children’s lives. See

Order, 7/7/16, at 2-3; Trial Ct. Op., 9/21/16, at 6-7. Based upon our review

of the record, we hold that the trial court did not abuse its discretion and

                                          - 24 -
J-A04016-17


properly considered whether the relocation will enhance the general quality

of the Children’s lives, pursuant to the seventh relocation factor under the

Custody Act, 23 Pa.C.S. § 5337(h)(7).

      (8) The reasons and motivation of each party for seeking or

opposing the relocation.      The trial court found that Mother’s reason for

seeking relocation was primarily for her own economic benefit. Mother did

not otherwise articulate how the trial court abused its discretion in

concluding that the Children’s lives would not be enhanced by the relocation

and that the Children’s stability would be undermined by Mother’s focus on

her “dream job.” N.T., 6/7/16, at 85; Trial Ct. Op., 9/21/16, at 18.

      Father opposed the relocation because the Children would become less

accessible to him.   This motivation was unequivocal and understandable.

See Order, 7/7/16, at 2; Father’s Brief at 30.

      (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.           According to the trial

court and the parties’ briefs, neither parent made allegations of abuse.

      (10) Any other factor affecting the best interest of the child.

The trial court did not identify any factor other than those discussed above

that is relevant to the best interests of the Children in the context of

relocation, and Mother has not raised any other factors affecting the

Children’s best interests. Based upon our review of the record, we hold that


                                    - 25 -
J-A04016-17


the trial court did not abuse its discretion when considering the Children’s

bests interests.

      In sum, our review of the record and the trial court’s order and opinion

convinces us that, contrary to Mother’s contentions, the trial court properly

considered the ten factors set forth in 23 Pa.C.S. § 5337(h) when ruling on

Mother’s relocation request. The trial court’s well-reasoned conclusions were

based on the evidence submitted, as demonstrated by the trial court’s

copious citations to the record and as supported by our review. We find no

abuse of discretion in the trial court’s assessment of these factors.     We

therefore affirm the trial court’s decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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