J-A23016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M.C.-F.                                 :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 V.M.                                    :    No. 270 WDA 2018

              Appeal from the Order Entered January 23, 2018
     In the Court of Common Pleas of Allegheny County Civil Division at
                     No(s): Case No. FD05-007279-005


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 21, 2018

      Appellant, M.C.-F. (“Mother”), and Appellee, V.M. (“Father”), are the

parents of a minor child (“Child”), who was born in June of 2005.       In the

instant appeal, Mother challenges the January 23, 2018 order that, inter alia,

denied her petition to relocate with Child to Tennessee.     After review, we

affirm.

      The record reflects that the underlying matter is a high-conflict custody

case. The parties were married from July 7, 2004, through August 1, 2006.

Child was born in June of 2005. Following their divorce, the parties shared

legal custody of Child, with Mother having primary physical custody. Mother

subsequently remarried Q.F. (“Stepfather”). On December 27, 2017, Mother

filed a notice of proposed relocation. Mother requested to relocate with Child

to Antioch, Tennessee, with Stepfather and Mother’s two children born of her
J-A23016-18


marriage to Stepfather. In her petition, Mother sought to relocate Child and

leave Pennsylvania on January 15, 2018. On January 12, 2018, Father filed

a petition for special relief objecting to Mother’s proposed relocation. Due to

the immediacy of Mother’s proposed move, the trial court ordered an

expedited relocation hearing. The relocation hearing was held on January 19,

2018, and January 23, 2018. At the conclusion of the hearing, the trial court

ordered as follows:

       1. The parties having been advised that both relocation and
       custody are at issue, to expedite resolution of the dispute, the
       Court hereby deems Father’s objection to the Proposed Relocation
       to be a timely filed Petition for Modification of Custody, for which
       fees and the Generations program are hereby waived, so long as
       Father files such a Petition formally requesting primary physical
       custody of the minor child M.C., age 12 (the “Child[”]) with the
       Court within 10 days hereof.[1]

       2. Mother’s request to relocate with the Child is hereby DENIED.

       3. Should Mother elect to remain in Allegheny County with the
       Child, Mother and Father shall share physical custody of the Child
       according to a week-on/week-off schedule commencing Sunday,
       January 28, 2018 at 4:00 p.m.

       4. Should Mother elect to relocate to Tennessee without the Child,
       Father shall be granted primary physical custody of the [C]hild.
       Mother shall be granted partial physical custody of the child every
       summer from one (1) week after the child finishes school until one
       (1) week before the child returns to school. Mother shall also
       exercise partial physical custody for the entire winter break in
       even years, and from the day after Christmas until the day before
       school resumes in odd years.



____________________________________________


1Father filed a formal petition for primary physical custody of Child on January
22, 2018.

                                           -2-
J-A23016-18


     5. Transportation will be shared, with the party receiving custody
     being responsible for said transportation, except that Mother shall
     bear all transportation costs for the purposes of interstate custody
     exchanges.

     6. If either parent is to take vacation with the Child in a location
     outside of that parent’s home County, they will notify the other
     parent as to the location of that vacation at the time the vacation
     schedule is finalized.

     7. Parents shall continue to share legal custody of the Child.
     Parents shall consult each other on all major non-emergency
     issues relating to the Child.

     8. Each parent shall share knowledge of any illness, accident or
     other circumstances affecting the health or welfare of the Child.

     9. In the event of an emergency or serious injury to either the
     Child, or parent giving care, the other parent will be notified
     immediately if it will interrupt the custody schedule. Each parent’s
     custody schedule may be interrupted if it is medically ill-advised
     to physically remove the Child due to serious injury or illness of
     the Child.

     10. Parents will make every effort to discuss extracurricular
     lessons/activities prior to enrollment of the Child, especially if
     those activities will mandate both parents’ participation during
     their custody period.

     11. If the Child is participating in a school event, extracurricular
     activity or social event, each parent will keep the other parent
     informed to allow the other parent to attend and both parents will
     ensure that the Child is able to attend all reasonably scheduled
     activities.

     12. Both parents shall treat each other with respect and shall
     endeavor to communicate directly rather than use the Child or a
     third party as an intermediary.

     13. Each parent shall keep the other informed as to each of his or
     her address and telephone number, including during vacation
     periods when the parents are traveling with the Child.




                                    -3-
J-A23016-18


      14. Neither party shall move with the Child without having first
      obtained a written consent of the other party or an Order of Court.

      15. The Child may have reasonable, regular, daily telephone
      contact with the parent who is not exercising physical custody.

      16. If both parents can agree to a change in this Order, the
      parents may change the times and dates of the custody schedule
      as set forth herein without formal modification of this Order. If
      both parents cannot agree, the Order shall be followed as written
      or either parent may request appropriate relief from the Court.

      17. This Order is made a final order of this court. This constitutes
      a final order or final decree. If applicable, this order or decree shall
      be entered as a judgment by the Office of Court Records. Rule 236
      Notice to be sent by the Office of Court Records.

Order, 1/23/18, at 1-2. Mother filed a motion for reconsideration that the trial

court denied.    Order, 2/20/18.    Mother filed a timely notice of appeal and

concise statement of errors complained of on appeal on February 22, 2018.

The trial court filed its opinion on June 5, 2018.

      On appeal, Mother raises the following issues for this Court’s

consideration:

      I. Did the trial court err as a matter of law and commit an abuse
      of discretion under the Due Process Clause and Rule 1915.17(b)
      when it allowed [Father] to proceed with his claim objecting to
      [Mother’s] Relocation despite the absence of a Counter-Affidavit
      timely filed on his behalf?

      II. Did the trial court err as a matter of law and commit an abuse
      of discretion under the Due Process Clause and Rule 1915.15(b-
      c) when it proceeded with [Father’s] claim for Primary Physical
      Custody of [Child] without Father filing a Complaint for Primary
      Physical Custody nor a Petition for Modification of a Custody Order
      prior to the Hearing on [Mother’s] Relocation?

      III. Did the trial court err as a matter of law and commit an abuse
      of discretion in its application of the 23 Pa. C.S.A. §5337 relocation

                                       -4-
J-A23016-18


      factors when it awarded [Father] Primary Physical Custody despite
      evidence proving [Mother’s] Relocation would greatly enhance the
      quality of life for [Child] and Mother and would continue to allow
      [Father] and [Child] the opportunity for a meaningful relationship?

      IV. Did the trial court err as a matter of law and commit an abuse
      of discretion in its application of the 23 Pa. C.S.A. §5328 custody
      factors when it awarded [Father] Primary Physical Custody despite
      evidence rebutting [Father’s] ability to co-parent with [Mother]
      and encourage and permit frequent and continuing contact
      between [Mother] and [Child]?

Mother’s Brief at 2-3.

      Our scope and standard of review are 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.

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

omitted).

      Mother’s first two arguments are based on an overly narrow reading of

Pa.R.C.P. 1915.15, Pa.R.C.P. 1915.17, and 23 Pa.C.S. § 5337, without regard




                                       -5-
J-A23016-18


to Pa.R.C.P. 126.2 Moreover, Mother’s first two issues seemingly ignore the

fact that Mother filed her notice of proposed relocation less than three weeks

prior to her planned move to Tennessee. Additionally, we discern no abuse of

discretion in the trial court denying Mother’s petition to relocate and granting

Father’s petition for modification of custody pursuant to the terms stated in

the January 23, 2018 order. After a careful review of the parties’ arguments,

the certified record, and applicable legal authority, we are satisfied that the

trial court’s opinion aptly discusses and properly disposes of Mother’s issues

raised on appeal. Accordingly, we affirm the January 23, 2018 order on the

basis of the trial court’s opinion, which was filed on June 5, 2018. The parties

are directed to attach copies of that opinion in the event of future proceedings.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2018

____________________________________________


2   Pa.R.C.P. 126 provides as follows:

        The rules shall be liberally construed to secure the just, speedy
        and inexpensive determination of every action or proceeding to
        which they are applicable. The court at every stage of any such
        action or proceeding may disregard any error or defect of
        procedure which does not affect the substantial rights of the
        parties.


                                           -6-
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          IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA


    M.C.-F                                                   FAMILY DIVISION

                     Appellant,                              270 WDA 2018
                                                             FD -05-007279-005
             v.

    V.M.,                                                    JUDGE HUGH F. McGOUGH

                     Appellee.




                                                  OPINION

      .   F. McGough; J.                                                                  June 1, 2018

             On January 23, 2(118, after a two-day hearing on Appellant's Proposed Relocation with

    the minor child 'from Pennsylyania to Tennessee, this Court denied Appellant's Proposed

    Relocation with the minor chid, finding that Appellant had failed to persuade the Court that the

    Proposed Relocation was in the best interests of the minor child. Appellant has appealed that

    denial. Each of the matters set forth in Appellant's Concise Statement of Matters Complained of

    on Appeal is addressed below in the order in which it was presented therein.

              Discussion

              Counter; Affidavit: Appellant first challenges the absence of a formal Counter -Affidavit

    :from Appellee. ;At the time of the filing of Appellant's Notice   of Proposed Relocation, both

    parties were unrepresented by counsel. Within 30 days of receipt of Appellant's Notice, Appellee

    promptly came to Motions Court with a Petition for Special Relief, which detailed his objections

    to the proposedlrelocation. Thus, Appellant was on actual, timely notice of Appellee's objection

    to the Proposed Relocation, and given the imminence of the proposed move at that time, the

    Court felt that strict adherence to procedural formalisms would have unnecessarily delayed the

                                                     - 1 -
Court's review of t e matter. Accordingly, the Court scheduled an expedited Relocation Hearing

on the matter without requiring the filing of an additional Affidavit from Appellee, and does not

believe that it was reversible              mar to   have done so under these circumstances, given the actual

notice to Appellant and the d4cretion accorded the Court pursuant to PU.R.C.P. 126.


2.        Complaint for Custody: Appellant next claims that the Court erred by addressing

Appellee's complaint for Priniary Physical Custody during the Relocation Hearing. At the outset

of the Hearing, the Court recognized the need for Appellee to have filed a complaint for custody

(so that Appellee's custody could be modified in case Appellant's Proposed Relocation was not

approved), and the Court's Order dated January 23, 2018 accordingly granted Appellee leave to

    le such a complaint; this turis out to haxie been unnecessary, as Appellee had, in fact, already
                                             I




filed a complaint for custody, 'along with the required Criminal Record/Abuse History

                                     January 62, 2018. Both parties had been apprised by the Court prior to the
                   1




Verification form,             on1
                                             1



                   1




Hearing that both custod;andlrelocation were at issue, and both parties had been given copies of
                       ,

                                                 1




the Relocation and                          Factors. Indeed, at the conclusion of the first day of the Hearing,

Appellant expressed distress that she had not yet been given a chance to address the custody
                                                 i




                                        .
                                 sured that she would be given ample opportunity to do so when the Hearing
                                                 i


factors, and was       Irea
                           1




continued.' Both parties were ware of                  - and were given ample opportunity to address - the
relocation and custody factors pertinent to the Proposed Relocation, and it was not reversible

error to address Appellee's complaint for custody that was occasioned thereby.




'  See Transcript of(Day 1 at 1.63: IAPPELLANT]: Your Honor, your court order said, if I can read from
't' an expedited relocation hearing on mother's relocation proposal filed 12/27 of father's objection hereto
will take place for Three hours. Parties apprised of relocation and custody factors at issue. So I was under
 he impression that the relocation and custody factors at issue were what we were analyzing today."

                                                                2-
           Relocation Factors: Particularly significant to the Court was the fact that before the first

day of the Relocation Hearing, Appellant had already packed up her home in Allegheny Country

and prepared to put it on the market, and all members of Appellant's household, with the

exception of herself and the minor child, had already relocated to Tennessee, where a one-year

lease had been signed on a honse.2 Appellant's new spouse was not present at the Hearing to

i.stify to the details of his job ;search (including, most importantly, whether or not he had ever

explored any job: op ions that Would have enabled him to remain in Allegheny County).

Appellant provided no compaiative educational information (other than the name of the new

school the minor; ch'Id would attend), no data comparing quality of life in the locations at issue,

no evidence about how the mildest increase in Appellant's spouse's salary3 would improve the

child's quality of life, and no practical suggestions on how to preserve the quality of the

relationship betWeen the minorI child and Appellee. Unrebutted testimony indicated that the

Minor child might have favored the relocation, if he would be getting his own bedroom... which

appeared to be rather unlikely,given that the family was moving into a house in Tennessee with

he same numberiof bedrooms and occupants as their house in Allegheny County.4 Accordingly,

the Court's application of the Relocation Factors reflected the Court's assessment that Appellant

had failed to satisfy her burden, of demonstrating that the Proposed Relocation was in the best

    nterests of the child




2 See Transcript of pay 1 at 68.
3 Appellant acknovvledged that heir husband expected to receive a $500/month salary increase as a result
of his relocation. See Transcript olf Day 2 at 66.
 See Appellant's explanations in Transcript of Day 1 at 58 and 60-61: "Initially [minor child] indicated
that he was going with the flow and was okay with moving as long as he had his own room. After
discussing the matter with the non -relocating party, he indicated that he didn't want to move, but failed to
give a reason why.1... Currently, [minor child] shares a room with his younger brother.... We have not
  .1



figured out logistics on how it will work, but we are trying to insure that the child has his own room, as
he's requesting."

                                                    -   3   -
4.          Co -Parenting and Continuing Contact: Appellant clearly viewed the Relocation Hearing

as a mere formality, given that the move to Tennessee was practically a fait accompli prior to the
                     ;




Hearing date. Appellant's assessment of what would or would not be in the child's best interests

ci   d   not seem to inclitde Appellee in any way; indeed, Appellant appeared to believe that the only

two options available to the Court *ere permitting the Proposed Relocation or rendering the

     hild and his fanjily homeless? Appellant admitted that she had formulated no "Plan B" in the

event that permission to relocate with the child was denied.6 It seems particularly odd, therefore,

for Appellant to cIha lenge Appellee's co -parenting and willingness to encourage continuing

contact, when it Was Appellant's proposed move to Tennessee that precipitated the instant

proceedings. The mere existence of communications and parenting challenges between the




      ee Transcript ofDay 1 at 69-70:
       [APPELLANT]: You're welcome. A relocation will not only enhance the general quality of life for
       the party seeking relocation, I ut also the child.
       THE COURT:;W?
       [APPELLANT,]: I m sorry?
       THE COURT:'How will 'it enhance?
       [APPELLANT]: Well, otherwise, we would be homeless because the property is in Nashville that we
       would be moving o. And wit -lout either of us working, we wouldn't be able to meet our fiscal
       responsibilities her in Pittsburgh.
       THE COURT: .1 understand that for you. But the point is you have to show that it's going to enhance
        the child's quality of life.
        [APPELLANT]: Right. It also enhances the child's quality of life. The child is part of the family unit.
        So, whenever we are impacte I, the child is also impacted by the circumstances impacting the family
        as a whole.
     See Transcript of Day 1 at 56-57;:
        THE COURT: And what's yo ir plan if relocation is denied? Will you move with the other two
        children to join your husband in Nashville or not?
        [APPELLANT]: Well, we don't have a way to live here because --
        THE COURT: So he answer is, if relocation is denied, if I don't allow the child to go to Nashville,
        you will move without the child?
        [APPELLANT]: I don't know] I hadn't considered the possibility of otherwise since the relocation is
        in the best interest of the child.
        THE COURT: Tha 's the ultimate question that we're deciding here today. I understand your position.
        [APPELLANT]: Sure.
        THE COURT: I'm he one whb has to decide that.

                                                       -4-
I
                I


                1




litigants should not as Appel ant appears to suggest,completely thwart an otherwise appropriate.

award of custody when, as he e, thefe has been a material change in the status quo.


       In conclUsion, the Court discerns nothing in the record indicating that it failed to properly

consider and weigh each ofthe applicable factors, and accordingly relies upon the Transcripts'to

document the reasoning behind the Court's findings, conclusions, and Order set forth in pages'

89-128 of the Transcript   Of   Dly 2.
                    i




       For all of the foregoing reasons, the Order dated. January 23, 2018 should be Affirmed.




                                                     BY THE COURT:




                                                                                          ,   J.

                                                     Honorable Hugh Fitzpatrick McGough
                                                     Court of Common Pleas


                                                      Honorable Hugh FISPatrIck McGough
                                                      Court of Common Pleas
                                                      Roam 5069, Family Law Center
                                                      440 Ross Street
                                                      Pittsbur9h, PA 15219
