J-S47031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.K.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                       v.

C.N.K., J.R.C., AND R.B.

                       v.

D.E.B.

APPEAL OF: J.R.C.
                                                      No. 141 MDA 2016


               Appeal from the Order Dated December 22, 2015
             In the Court of Common Pleas of Cumberland County
                      Civil Division at No(s): 2011-5951


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 04, 2016

       J.R.C. (“Father”) appeals from the December 22, 2015 order 1 denying

his petition to relocate the parties’ minor child. After our review, we affirm.
____________________________________________


1
  C.N.K. (“Mother”) and B.K. (“Maternal Grandmother”) are also involved in
a separate custody action involving Mother’s other child (M.B.) from another
man. Child and M.B. see each other one weekend each month and one
Wednesday each month. Although the docket number in that case was
consolidated below with the docket number in the instant matter, it is an
unrelated action. The fact that a custody modification action is pending in
that unrelated action presents no jurisdictional issue in the instant case.
See Pa.R.A.P. 341. See also Kincy v. Petro, 2 A.3d 490, 493-96 (Pa.
2010) (Supreme Court held language of consolidation order not controlling
as to whether complete consolidation has occurred; Court stated:
“[S]eparate actions cannot be consolidated to the extent the actions lose
their separate identities and become a single action[, i.e.,] “complete
consolidation[,]”—unless the actions involve the same parties, subject
matter, issues, and defenses.” Id. at 494. “Although the language of Rule
(Footnote Continued Next Page)
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         Father has primary physical custody and sole legal custody of the

parties’ seven-year-old son, J.E.C. (“Child”).    Maternal Grandmother has

partial physical custody every other weekend. Mother’s custody is subject to

supervision by Maternal Grandmother.2 See Order, 11/3/14, ¶¶ 5-7.

         On September 28, 2015, Father filed a notice of intention to relocate

Child.    Father and his wife, as well as their four-year-old son, sought to

relocate with Child to Columbus, Ohio. The court held a relocation hearing

on November 17, 2015 and December 9, 2015.             At the hearing, Father

stated that his primary reason for relocation was the opportunity for a job

where he would have weekends off and the potential to earn approximately

$20,000-$30,000 more each year. Father, who is a commercial truck driver,
                       _______________________
(Footnote Continued)

213(a) suggests that a court may order actions consolidated when the
actions involve a common question of law or fact, or arise from the same
transaction or occurrence,[ ] the second option for consolidation under Rule
213(a) . . . is distinct from [ ] complete consolidation. Id.”).
2
  Mother has a history of drug and alcohol abuse and mental illness. In
November of 2011, the court granted Maternal Grandmother emergency
custody of Child. At that time, Father, who also struggled with opioid
addiction, did not have a relationship with Child, but he ultimately overcame
his addiction and eventually gained primary physical custody of Child as well
as sole legal custody. Father has been sober since January 6, 2010. See
N.T. Relocation Hearing, 11/17/15, at 52. In 2014, Mother was convicted of
possession of a Schedule I controlled substance (heroin) and was sentenced
to twelve months’ supervised probation. Mother has admitted to using
heroin in Child’s presence. See N.T. Relocation Hearing, 12/9/15, at 46. As
of the date of the relocation hearing, Mother testified that she has been
sober (both alcohol and heroin) for over one year, had completed an
intensive outpatient rehabilitation program, had weekly drug testing, and
was consistently attending NA and AA meetings twice each week. Id. at 36-
38.



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stated he wished to spend more time with Child and his family.          This

opportunity would also enable his wife, a certified nurse assistant, to stay

home with the children and the new baby they were expecting.            N.T.

Hearing, 11/17/15, at 38-39, 48. As the court noted, however, there was no

specific information or corroboration of a definite salary increase; the

September 23, 2015 letter from Father’s employer, which he attached to his

Amended Notice of Proposed Relocation, reads: “This move, however, will

allow you to advance within our company and increase your earning

potential to $88K per year.” See Amended Notice of Proposed Relocation,

10/7/15, Exhibit A (emphasis added).      Father also explained that he had

extended family in the Columbus area, including aunts, uncles and cousins,

and that they would be a support system for him and his family. Id.

     The court heard testimony from Mother, N.T. Hearing, 12/9/15, at 34-

69, and Maternal Grandmother.     Id. at 69-90.   Both Mother and Maternal

Grandmother opposed the relocation, and both questioned Father’s motive.

Mother stated that she thinks Father and his wife do not want her to do well;

“I think that now that I am, they are trying to take [Child] out of my life.”

Id. at 41.   Mother also testified that Father was “mentally and physically

abusive” toward her, and that as a result she was later diagnosed with Post-

Traumatic Stress Disorder. Id. at 43. However, Mother testified that she

never filed for a Protection From Abuse order. Id.




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       Mother and Maternal Grandmother currently live in close proximity to

Father. They see Child every other weekend and Wednesdays. They also

attend Child’s sporting events and school events when possible.

       Father explained his proposed custody schedule, stating that it would

include 48 overnights, as compared to the current schedule of 52 overnights.

N.T. Hearing, 11/17/15, at 18. He also pointed out that Maternal

Grandmother had family in Ohio, that she had traveled to Ohio in the past to

visit family, and that she would be permitted to see Child in that instance.

Id. at 17-18.

       The court questioned Child in chambers. N.T. Hearing, 12/9/15, at 98-

116. Although Child is only five years old, his answers were appropriate and

they indicated that he understood the questions. Child stated he would feel

“bad” if he saw Maternal Grandmother less than he currently does. Id. at

113.

       On December 22, 2015, the trial court denied Father’s petition for

relocation.   Father appealed.    He now raises the following issues for our

review:

              1. Whether the trial court erred when it failed to
                 consider all seventeen (17) child custody factors
                 pursuant to [23 Pa.C.S.] § 5328(a).

              2. Whether the trial court erred when it failed to notify
                 trial counsel of its opinion regarding the ten (10)
                 relocation factors pursuant to [23 Pa.C.S.] § 5337(h)
                 until after the deadline for the notice of appeal had
                 run.



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            3. Whether the trial court erred and/or abused its
               discretion when it failed to apply and/or misapplied
               the child custody and relocation laws by reaching a
               manifestly unreasonable result that is not supported
               by competent evidence.

      Our scope and standard of review regarding child custody matters is as

follows:

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

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

quotation marks omitted).

      Father first claims the trial court erred in failing to address the custody

factors set forth in 23 Pa.C.S. § 5328(a). This claim is meritless. The court

had already granted Father primary physical custody and sole legal custody

of Child. Father did not seek modification of the custody order to relocate;

in fact, Father explained his proposed custody schedule would include 48

overnights, as compared to the current schedule of 52 overnights. See N.T.

Hearing,   11/17/15,    at   18.      Father   acknowledged      that   Maternal

Grandmother’s partial custody rights would be essentially the same.          The

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court did not order a new form of custody, nor did either party seek as

much. Cf. A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014) (court required to

consider statutory child custody factors as well as statutory relocation

factors where mother’s proposed relocation would change father’s shared

physical custody to partial physical custody).         Because we find that the

proposed relocation would not have significantly impacted the parties’

custody arrangement, we find no error.3

       In his second issue, Father argues the court erred in failing to notify

counsel of its opinion regarding the ten relocation factors until after the 30-

day appeal period had run. See A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa.

Super. 2013) (section 5323(d), which provides trial court “shall delineate the

reasons for its decision on the record in open court or in a written opinion or

order,]” applies to cases involving custody and relocation). The trial court

entered its order denying relocation on December 22, 2015, and issued an

Opinion on January 19, 2016.            However, the court, in error, mailed that
____________________________________________


3
   We acknowledge that the case of A.M.S. v. M.R.C., 70 A.3d 830 (Pa.
Super. 2013) states that the trial court “must consider all ten relocation
factors and all 16 child custody factors when making a decision on relocation
that also involves a custody decision.” Id. at 836 (emphasis added). In
A.M.S., in addition to Mother’s relocation petition, both parties filed custody
complaints. Where modification of custody is not at issue, consideration of
both sets of factors is not required, especially where, as here, the relocation
would not have a significant impact on the other party’s custody time. As
noted above, the relocation, had it been granted, would have altered the
pattern of Maternal Grandmother’s custody time, but would have had only a
slight impact (4 days) on the amount of Maternal Grandmother’s custody
time.



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Opinion on January 19, 2016 to the incorrect parties.                Nonetheless, since

Father’s attorney did file a timely notice of appeal on January 22, 2016, and

the trial court reissued its opinion and mailed it to the correct parties on

February 8, 2016, we discern no prejudice to Father’s appeal rights.                The

two-week delay did not interfere with Father’s ability to articulate his claims

on   appeal,   nor   did   it   interfere    with   this   Court’s   appellate   review.

Accordingly, we find no error.

      In his final claim, Father argues the trial court erred or abused its

discretion in misapplying the relocation factors and reaching a manifestly

unreasonable result, which is unsupported by competent evidence.                    We

disagree.

      Our analysis begins with section 5337 of the Child Custody Act, 23

Pa.C.S. §§ 5321 et seq. (“the Act”), which sets forth the procedures and

standards for relocation requests.           The Act defines “Relocation” as “[a]

change in residence of the child which significantly impairs the ability of a

non-relocating party to exercise custodial rights.”           23 Pa.C.S. § 5322(a);

C.M.K. v. K.E.M., 45 A.3d 417, 422 (Pa. Super. 2012). The Act requires the

trial court to consider the following in a relocation proceeding:

      (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



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         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.

23 Pa.C.S. § 5337(a)-(d)(h).

      Moreover, the party proposing relocation has the burden to prove that

relocation will serve the child’s best interest.    See 23 Pa.C.S. § 5337(i).

Each party, however, has the burden of establishing “the integrity of that


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party’s motives in either seeking the relocation or seeking to prevent the

relocation.” 23 Pa.C.S. § 5337(i)(2).

      Here, the court delineated each of the ten relocation factors and

provided a detailed analysis under each factor. Based on a thorough review

of the record and the relocation factors contained in section 5337(h), as

discussed below, we conclude that Father did not meet his burden of

showing that relocation was in Child’s best interest.

      The court recognized Father has had primary custody and sole legal

custody for three years; the court noted that due to Mother’s unavailability

because of her addiction, her relationship with Child is not nearly as strong

as Father’s and Maternal Grandmother’s relationships with Child. The court

found Child’s ties with Father, his Maternal Grandmother and maternal

family living in the Camp Hill area were stronger than Child’s ties with the

paternal extended family in Columbus, Ohio.        The court also noted that

Maternal Grandmother lives in close proximity to Father, making custody

exchanges flexible and frequent, and availing Maternal Grandmother and

Mother the opportunity to attend Child’s school and sporting events.     See

23 Pa.C.S. § 5337(h)(1), (3).

      The court interviewed Child. The court noted that Child stated that he

would like to see Maternal Grandmother “more” and that seeing her less

would make him feel “bad” because he “always miss[es] her.” N.T. Hearing,

12/9/15, at 112-13. Even though Father proposed almost the same number

of “overnights,” those periods of custody would not be on a consistent week-

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to-week basis, but rather, interspersed for longer periods throughout the

year.    There is every reason to believe that relocation would compromise

Child’s close bond with Maternal Grandmother, on which Child relies, and

any developing bond with Mother. See 23 Pa.C.S. § 5337(h)(2), (4).

        Overall, there did not appear to be a pattern of conduct by either

Father or Maternal Grandmother to thwart the other party’s relationship with

Child. The court noted that both parties provided stability and well-being to

Child, especially in light of Mother’s addiction issues.           See 23 Pa.C.S. §

5337(h)(5).

        With respect to enhancing the quality of life, the court acknowledged

that the job opportunity upon which Father based his relocation request

would increase Father’s salary and allow him more time off on weekends;

this would clearly enhance Father’s and Child’s quality of life. However, the

court found that the letter was insufficient to support the relocation request.

Father presented no witness to corroborate the letter or the opportunity and

salary potential presented in that letter. See 23 Pa.C.S. § 5337(h)(6), (7).

        The court determined that Father was sincere in his motive to relocate,

which included an increased salary potential and the possibility of spending

more weekend time with Child.            The court also determined Maternal

Grandmother and Mother were sincere in their opposition, knowing it would

alter   their   time   and   opportunities   with   Child,   and    potentially   their

relationships with Child. See 23 Pa.C.S. § 5337(h)(8).




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      Mother did testify that Father had been abusive to her in the past, and

that she suffered from post-traumatic stress disorder as a result. However,

the court noted that Mother gave no specific examples. The court found that

neither Father nor Maternal Grandmother posed a threat to Child, and that

as long as Mother remained sober and supervised, she as well posed no

threat to Child. 23 Pa.C.S. § 5337(h)(9).

      Lastly, with respect to the final relocation factor, “any other factor

affecting the best interest of the child,” the court stated:

      Given the Father’s past drug abuse, and Mother’s past drug
      abuse and continuing struggles with overcoming such drug
      addictions, the Court gave great weight to the stability that the
      Maternal Grandmother, extended family of Mother and Father
      and current wife of Father can provide to the Child in a joint
      effort. As mentioned previously, Father has made great strides
      in his life and has been rewarded by having a better relationship
      with the Child and being [his] primary custodian[.] This Court’s
      denial of his relocation request is not to penalize Father, but
      rather to encourage Father to be even more responsible in
      obtaining specifics and considering cautiously how large
      decisions may affect the best interest of the Child. In the event
      that Father does so in the future, this Court would again consider
      a petition if Father had to relocate to obtain better employment.
      Nevertheless, the Court hopes that Father is able to obtain such
      opportunities in such a location as to allow the Child’s
      relationship with extended family in this area to flourish also. If
      the Father continues in his positive direction in his life, this Court
      has reason to believe that Father will be afforded such an
      opportunity in the near future.

Trial Court Opinion, 2/10/16, at 17-18.

      After our review, we find no error or abuse of discretion.          A.D. v.

M.A.B., supra. The court’s findings are supported in the record. Further,



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the court’s conclusion that Father did not meet his burden of establishing

that relocation was in Child’s best interest is reasonable in light of the court’s

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

Therefore, we see no reason to disturb the court’s decision to deny Father’s

petition for relocation.

      Order affirmed.

      JENKINS,J., Joins the memorandum.

      SHOGAN, J., files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2016




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