J-A30026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 T.T.,                                    :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee,              :
              v.                          :
                                          :
                                          :
 L.M.,                                    :
                                          :
                    Appellant.            :   No. 966 WDA 2018


                  Appeal from the Order Entered June 6, 2018,
              in the Court of Common Pleas of Allegheny County,
                   Family Court at No(s): FD-10-002077-008.


BEFORE:    SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                     FILED FEBRUARY 04, 2019

      L.M. (Mother) appeals the custody order that denied her request to

relocate the parties’ 13-year-old son (Child) from Allegheny County, where he

resides with T.T. (Father), to her home in Las Vegas, Nevada. Because the

trial court did not analyze the requisite relocation factors, we are constrained

to vacate the order and remand with instructions.

      In light of our disposition, a full recitation of the factual history is

unnecessary. The overture is this: The parties have lived separately since

2010. Mother had been the primary custodian until 2014, when she left the

Commonwealth and moved to Nevada. The Child moved in with Father in

Allegheny County where he remained for approximately three years until July

2017. The Child then stayed with Mother in Las Vegas for five months, before

returning to Father’s care in Allegheny County in December 2017. Mother


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A30026-18



petitioned for relocation in May 2018. Although she filed and served upon

Father a notice of proposed relocation, Father did not file a counter-affidavit

objecting to Mother’s proposal. Instead, he filed a complaint in custody. The

court held a hearing on June 4 and June 6, 2018. Father represented himself.

      The trial court accepted Mother’s reasons for moving to Las Vegas,

where she has achieved personal and professional success. The court denied

Mother’s request to relocate the Child, however, partly because the Child

preferred to reside with Father in Pennsylvania. Mother filed a timely notice

of appeal contemporaneously with her concise statement of errors complained

of on appeal. See Pa.R.A.P 1925(a)(2)(i); (b).

   Mother presents for our review three issues, which we restate for clarity:

   1. Did the trial court err as a matter of law and commit an abuse
      of discretion under the Due Process Clause and Pennsylvania
      Rule of Procedure 1915.17(b) when it allowed Father to present
      a case even though he failed to timely file a counter-affidavit
      contesting the Child’s proposed relocation?

   2. Did the trial court err as a matter of law and commit an abuse
      of discretion in its failure to consider any of the 23 Pa.C.S.A. §
      5337(h) relocation factors?

   3. 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(a)
      custody factors?

See Mother’s Brief, at 2-3.

      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


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         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) (citation omitted).

      However, we observe that Mother’s claims also require us to interpret

the inner workings of the relocation statute, 23 Pa.C.S.A. § 5337. “Issues of

statutory interpretation are questions of law where “the appellate standard of

review is de novo and the appellate scope in plenary.” Id., at 471. (Citations

omitted).

      Section 5337 (“Relocation”) of the Child Custody Act anticipates that the

parent seeking relocation intends to move with the child. Mother’s appellate

issues require us to determine what extent § 5337 applies when a parent has

already moved and only seeks to relocate the child.

      In her first issue, Mother argues that Father’s noncompliance with the

rules of procedure should have prohibited him from opposing her proposed

relocation at trial. Specifically, Mother contends that Father should have been

barred from presenting a case, because he failed to file a counter-affidavit

objecting to her proposed relocation.      With hardly any citation to legal

authority, Mother claims that the court’s leniency of Father’s noncompliance

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amounts to an abuse of discretion and then some. 1 Mother’s argument fails

for three distinct reasons.

       First, Father did not substantially affect Mother’s rights, because he put

her on sufficient notice that he opposed the relocation.

       Rule 1915.17 mandates that if a party opposes the proposed relocation,

the opposing party must serve a counter-affidavit. See Rule 1915.17(a)-(b).

Although Father did not file a counter-affidavit, upon receiving notice of

Mother’s relocation petition, he did one better. He challenged the relocation

by filing his own custody complaint. This was good enough for the trial court.

Indeed, the filing of a custody complaint, combined with taking additional

steps, would be the proper procedure to prevent a relocation in certain

situations. See Rule 1915.17(h)(1).

       We are mindful that the rules shall be liberally construed, and that the

court may disregard any error or defect of procedure which does not affect

the substantial rights of the parties. See Pa.R.C.P. 126 (“Liberal Construction

an Application of Rules”) (emphasis added).          The trial court determined

Mother’s substantial rights were not affected by Father’s noncompliance with

the rules of procedure.        Father’s custody complaint effectively put her on

____________________________________________


1 In her brief, Mother decries: “Allowing the lower court to reason in this
fashion creates daunting precedent for this Commonwealth in that said
reasoning permits pro se litigants to do what they want when they want
without any regard for the law nor court order; creating that kind of precedent
goes against the aim of the framers in that it would create judicial chaos and
anarchy. In fact, such precedent may even render our legal profession moot.”
See Mother’s Brief, at 5.

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J-A30026-18



notice that he intended to prevent the relocation. Mother cannot say she was

unprepared at trial.    But our analysis does not hinge solely on the liberal

construction of the procedural rules.

      The second reason Mother’s argument fails is because the statutory

provision Mother relies upon is clearly inapplicable under these facts.

      Rule   1915.17,    supra,   merely      delineates   the    precise   relocation

procedure mandated by 23 Pa.C.S.A. § 5337(d).                    Section 5337(d)(4)

provides: if a party has been given proper notice of the relocation, but does

not file an objection (by way of a counter-affidavit), then the court shall not

accept testimony challenging the relocation. This prohibition is nowhere in

Rule 1915.17. While Mother cites § 5337 generally, she does not reference §

5337(d)(4), the only provision barring testimony. And this Court had made

very clear that certain provisions of § 5337 do not apply in situations like this

where only the child – but not the parent - stands to relocate. See D.K. v.

S.P.K., supra, 102 A.3d at 473.

      In D.K., we concluded that when neither parent is moving, and only the

child stands to relocate a significant distance, then the relocation provisions

of 23 Pa.C.S.A. § 5337 are not per se triggered. Specifically, we ruled that

the party seeking relocation did not have to comply with the notice provision

in § 5337(c), because the petitioning party had already moved. See D.K.,

102 A.3d at 473. We reasoned:

         Section 5337(c) obviously envisions a change in the
         relocating party’s geographical location that will impact
         custody and arms the nonrelocating party with the

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           information necessary to assess the proposed change of
           circumstances. In a case such as this, where both parents
           remain in their established residences, there are no changed
           circumstances to assess. The challenge is solely to a change
           in the custody arrangement and not to party’s relocation.
           Moreover, in a custody case where both parties continue to
           live in their current residences, the information required
           under § 5337(c) is either known or will be revealed as a
           matter of course in either the complaint for custody or the
           custody proceedings.

Id.

      In    D.K.,   we   also   cited   §    5337(d)   (“Objection to proposed

relocation.--”) to underscore that much of the relocation statute only applies

when the petitioning party seeks to move with the child. Section 5337(d)(1)

provides in relevant part: “The nonrelocating party shall have the opportunity

to indicate whether he objects to relocation or not and whether he objects to

modification of the custody order or not.” (Emphasis added).          From this

passage, we concluded that § 5337(d) “plainly differentiates between

objections to party’s relocation and objections to modification of the custody

arrangements.” D.K., 102 A.3d at 473. (Emphasis added). We concluded:

“[w]hile it is clear that every request for relocation pursuant to the statute

implicates the custody of the child, the relocation provisions are not triggered

unless one of the parties is relocating.” Id., at 474. (Emphasis added).

      Returning to the instant case, Mother’s argument fails because Father

did not have to object to Mother’s relocation; she had already moved to Las

Vegas over three years prior. And to the extent Father needed to object to

Mother’s proposed custody arrangement, he could not have been clearer when



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he filed his own complaint. Even a cursory read of D.K. suggests that if the

notice provision does not apply, neither does the provision requiring the

responsive counter-affidavit.2

       Notwithstanding Mother’s embellishment of the interplay between the

procedural rule and the relocation statute, Mother’s argument fails for a third

and final reason.

       The family court reasoned that Father was entitled to his own custody

hearing on account of his custody complaint, a separate cause of action that

was independent of Mother’s proposed relocation. See Trial Court Opinion

(T.C.O.), 8/7/18, at 5.          Judicial economy warranted combining the two

matters to hold a single hearing as soon as possible. The trial court explained,

“Father’s evidence in support of his custody complaint was essentially an

objection to Mother’s request for relocation.” Id. The court correctly refused
____________________________________________



2 We also note that Mother’s brief is particularly disingenuous. Mother ignores
D.K. when discussing her first appellate issue, but then quotes D.K. at length
in the argument section of her second appellate issue (regarding the relocation
factors). See Mother’s Brief, at 17; see also D.K., 102 A.3d at 477-478.
Indeed, the D.K. passage she relies on for her second issues came after the
D.K. Court’s discussion and conclusion that the notice provision did not apply.
Not only is Mother silent on the likelihood that the counter-affidavit provision
similarly inapplicable, but she also misleads this Court into believing the
opposite is true.       Mother claims that the “precedence (sic) in this
Commonwealth establishes (sic) the dire necessity of compliance with 23
Pa.C.S.A. § 5337 and the deprivation of rights that occurs where compliance
is willfully disobeyed.” See Mother’s Brief, at 11-12. Nothing in the record
suggests Father’s noncompliance was “willful.” Nothing in D.K. suggests the
“dire necessity of compliance” with § 5337. In fact, D.K. makes clear that §
5337 is largely irrelevant when neither parent is actually relocating.



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to put form over function.      For the aforementioned reasons, we conclude

Mother’s first claim is meritless.

      We turn next to Mother’s second contention, where she alleges the court

erred by failing to analyze the relocation factors under § 5337(h). Here, we

agree that the court erred.

      Again, D.K. provides clear guidance: “Although we have determined

that this case does not per se trigger § 5337, we do not hold that a trial court

cannot or should not consider the factors of § 5337(h) in a case where a

request for modification of the custody order involves the change of residence

of the child to a significantly distant location.” D.K., 102 A.3d at 474. When

the child stands to move a significant distance, trial courts should still consider

the relevant factors of § 5337(h) in their § 5328(a) best interests analysis.

See Id., at 477-478. We reasoned that the best interests analysis’ catchall

provision, i.e. § 5328(a)(16) (“Any other relevant factor”), encompasses the

§ 5337(h) relocation factors.

      In D.K., we relied on Clapper v. Harvey, 716 A.2d 1271 (Pa. Super.

1998), a case that predated the enactment of both § 5328(a) and § 5337(h).

Clapper involved a mother in Florida seeking custody of her child who lived

with the father in Pennsylvania.     We ruled that the best interests custody

analysis requires consideration of the “Gruber factors,” which were the

forbearers to the codified relocation factors in § 5337(h). See D.K. v. S.P.K.,

102 A.3d at 475-476 (Pa. Super. 2014); see also Clapper v. Harvey, 716

A.2d 1271, 1272-1273 (Pa. Super. 1998); and see generally Gruber v.

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J-A30026-18



Gruber, 583 A.2d 434 (Pa. Super. 1990). In D.K., we determined the court

must consider both sets of factors even though we recognized some of the §

5337(h) relocation factors are encompassed either directly or implicitly by the

§ 5328(a) factors.3 See D.K., 102 A.3d at 477.

       In the instant case, the trial court stated it did not consider the matter

to be a relocation issue because Mother was not seeking to move; she had

resided in Las Vegas for more than three years before she formally sought to

regain primary physical custody of the Child. See T.C.O., at 5.       The court

acknowledged the similarity between some of the relocation factors and best

interests factors of § 5328(a). The court even alluded to some considerations

specific to relocation.     However, the court stated it ultimately found the §

5328(a) factors to be “more comprehensive and more appropriate to this

case.” Id.

       As we discussed above, not every § 5337 provision applies to every

relocation case. And the trial court very well could be correct in surmising

that the § 5328(a) best interest factors are more relevant in this matter than
____________________________________________


3 The relocation context is not the only instance where § 5328(a)(16) has
incorporated other, previously recognized custody considerations. In S.T. v.
R.W., 192 A.3d 1155, 1168 (Pa. Super. 2018), we concluded that §
5328(a)(16) mandates the consideration of the “Etter factors” in custody
cases where a parent is incarcerated. See also Etter v. Rose, 684 A.2d
1092, 1093 (Pa. Super. 1996). Moreover, we stated the court had to consider
the Etter factors even though some might be inapplicable or duplicative of
certain § 5328(a) factors. See S.T., 192 A.3d at 1168.




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the § 5337(h) relocation factors. But the court mistakenly assumed it had to

choose between one set of factors or the other. The court erred when it did

not consider both.

       Accordingly, we are constrained to vacate the court’s June 6, 2018 order

of court and remand for further proceedings.4 On remand, the trial court is

directed to consider all of the best interest and relocation factors and shall set

forth its analysis in a written opinion. Additionally, if the trial court deems it

necessary, it should conduct an additional hearing in order to address all of

the relocation factors.5

       Order vacated. Case remanded for further proceedings.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2019

____________________________________________


4 Since we vacate and remand, we do not address Mother’s final argument
assailing aspects of the trial court’s findings of fact.

5 At the hearing, the trial court seemed to anticipate the consideration of both
sets of factors. See N.T., 6/4/18, at 92. (“There are 16 factors and 10
relocation factors. That’s 26 factors I have to analyze.”). However, the court
stated in its Pa.R.A.P. 1925(a) opinion that it “treated Mother’s petition as a
primary custody case….” See T.C.O., at 6. The court shall decide for itself
whether an additional hearing is necessary.

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